Mark Nunley v. The State of Texas--Appeal from 7th District Court of Smith County

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Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2004 » Mark Nunley v. The State of Texas--Appeal from 7th District Court of Smith County

State: Texas

Court: Texas Northern District Court

Docket No: 12-03-00320-CR

Case Date: 09/08/2004

Plaintiff: Mark Nunley

Defendant: The State of Texas--Appeal from 7th District Court of Smith County

Preview:Nathan Lloyd Reed v. The State of Texas--Appeal from 87th District Court of Freestone County
IN THE TENTH COURT OF APPEALS

No. 10-04-00353-CR Nathan Lloyd Reed, Appellant v. The State of Texas, Appellee

From the 87th District Court Freestone County, Texas Trial Court No. 03-191-CR MEMORANDUM Opinion Asserting one issue, Appellant Nathan Reed appeals his conviction of attempted indecency with a child by contact (enhanced by two prior felony convictions) and thirty-three year sentence. We will affirm. Reed was indicted for attempting to force the hand of the 14-year-old victim into his pants. The elements of criminal attempt are: (1) a person (2) with specific intent to commit an offense (3) does an act amounting to more than mere preparation (4) that tends but fails to effect the commission of the offense intended. Tex. Pen. Code Ann. 15.01(a) (Vernon 2003). Reed alleges that the trial court erred by omitting the element of specific intent from the application paragraph. The abstract portion contained that element, stating: A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct. The application paragraph provided: Now, if you find from the evidence beyond a reasonable doubt that on or about July 31, 2003, in Freestone County, Texas, the defendant, NATHAN LLOYD REED, did then and there attempt to engage in sexual contact with [victim] by taking the hand of the said [victim], a child younger than 17 years and not the spouse of the defendant, and attempt

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to force her hand into the defendant s pants, which act amounted to more than mere preparation that tended but failed to effect the commission of said Indecency with a child by contact, and that said act, if any, was committed with the intent on the part of the defendant to arouse or gratify the sexual desire of himself, then you will find the defendant guilty as charged. In Degrate v. State, we stated: The function of a jury charge in a criminal trial is to instruct the jury on the law applicable to the case. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). The charge consists of the abstract portion and the application paragraph or paragraphs. Id.; Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996). The abstract portion serve[s] as a kind of glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge. Plata, 926 S.W.2d at 302. The application paragraph applies the law to the facts, and asks an ultimate question of the jury about whether the defendant is guilty. Plata, 926 S.W.2d at 302-03; Doyle v. State, 631 S.W.2d 732, 736-37 (Tex. Crim. App. 1982). Thus the relationship between the two is that definitions (and instructions) in the abstract portion are like words in a dictionary; their true and correct meaning is not shown until they are properly used in a sentence, i.e., in the application paragraph. Doyle, 631 S.W.2d at 737. Degrate v. State, 86 S.W.3d 751, 752 (Tex. App. Waco 2002, pet. ref d). The State asserts that Dinkins v. State addresses Reed s complaint and resolves it against him. See Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995) (holding jury charge not defective where abstract portion of charge defined aggravating murder s culpable mental state while application paragraph did not). We agree with the State. After defining the offense of indecency with a child by contact, the abstract portion then defined attempt with the element of specific intent. It is unnecessary and unworkable to repeat every abstract definition in the application paragraph. Crum v. State, 946 S.W.2d 349, 356 (Tex. App. Houston [14th Dist.] 1997, pet. ref d) (citing Dinkins). Because the jury charge s abstract portion included the specific-intent element, the application paragraph was not defective. See Dinkins, 894 S.W.2d at 339. We overrule Reed s sole issue and affirm the trial court s judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed November 2, 2005 Do not publish [CRPM]

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