Robert Allen Workman, Jr. v. State
10-15-00379-CR
| Tex. App. | Feb 1, 2017Background
- Defendant Robert Workman Jr. was indicted for violating a protective order two or more times within a 12-month period and convicted of the lesser-included offense of violating a protective order by assault; sentence 38 years based on two prior felonies.
- Indictment alleged specific single manner/means: on March 24, 2014 Workman committed family violence by "striking or dragging or pushing" Markeisha Shields; and on March 27, 2014 he went within 200 feet of her residence in violation of another order.
- At the charge conference the State requested, over Workman’s objection, inclusion of the lesser-included offense (violation by assault); jury convicted on that lesser offense under Tex. Penal Code §25.07(g).
- Workman appealed, arguing (1) the assault-based offense is not a lesser-included offense of the two-or-more-times indictment, and (2) the jury charge’s application paragraph for the lesser offense omitted essential elements (e.g., service of the protective order, "caused bodily injury," or intent-to-cause-harm language).
- Evidence at trial included an 8-year-old eyewitness, photographs of the victim’s injuries, a 911 call, and testimony of personal service of the temporary protective order; the victim did not appear at trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Workman) | Held |
|---|---|---|---|
| Whether violation-by-assault is a lesser-included offense of violating a protective order two+ times | The indictment alleged a single manner (striking/dragging/pushing) that, if true, is an assault; therefore assault is a cognate lesser-included offense | Assault is not a lesser because the two-or-more-times offense requires only family violence, not the specific statutory assault elements | Court: Overrules Workman — assault was a lesser-included offense given the single manner/means alleged in the indictment |
| Whether the jury charge omitted essential elements for the lesser offense causing reversible error | Jury instructions defined assault and other terms; evidence showed service and knowledge; errors were not egregious | Application paragraph omitted explicit findings (service, "caused bodily injury," intent-to-cause-bodily-harm); Workman preserved egregious-harm review by not objecting | Court: Charge was erroneous in respects but, under Almanza, errors did not cause egregious harm; conviction affirmed |
Key Cases Cited
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App.) (establishes cognate-pleading approach for lesser-included offenses)
- Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App.) (when statute lists alternative manners, the indictment’s alleged manner governs the hypothetically correct charge)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App.) (same principle about single method alleged in indictment)
- Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App.) (evidence must permit rational finding of only the lesser offense to submit instruction)
- Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App.) (appellate review of all evidence when deciding lesser-included instruction)
- Allen v. State, 253 S.W.3d 260 (Tex. Crim. App.) (standards for analyzing jury-charge error and preserved/unpreserved objections)
- Olivas v. State, 202 S.W.3d 137 (Tex. Crim. App.) (discusses Almanza standards for charge error)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.) (unobjected-to jury charge error reversible only for egregious harm)
- Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App.) (egregious harm affects very basis of case, defendant’s rights, or defensive theory)
- Sanchez v. State, 209 S.W.3d 117 (Tex. Crim. App.) (factors for egregious-harm analysis)