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                                          ±5
                                     COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS




 DAVID BARRON,                                                  No. 08-12-00184-CR
                                                §
                             Appellant,                           Appeal from the
                                                 §
 v.                                                             210th District Court
                                                 §
 THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                 §
                             Appellee.                          (TC#20120D01101)
                                                §

                                          OPINION


       David Barron appeals his conviction for aggravated assault with a deadly weapon. We

affirm his conviction as modified.


                                         BACKGROUND
                                          Factual History

       This case arises from a traffic incident involving victim Robert Sierra and another driver

Sierra positively identified as Barron at trial. On December 1, 2011, Sierra was riding his

Kawasaki motorcycle along North Loop Road in El Paso, Texas, when he was approached from

behind by a maroon Chevrolet Silverado truck traveling at a high rate of speed. Sierra, who was

traveling in the left lane, switched over to the right lane on North Loop Road. Sierra then saw

the truck pull up next to him in the left lane. According to Sierra, the truck's driver laughed at

him, and then "threw the truck" towards him by steering "pretty quickly" into Sierra's lane.
Sierra was forced out of the right lane into the emergency lane on the far right of the road. Sierra

testified that if he had not driven onto the shoulder, the truck would have hit him and his

motorcycle would have fallen over.

       As Sierra drove in the emergency lane, he saw another vehicle ahead of him with its

hazard lights flashing. Sierra then wove his way between the vehicle in the emergency lane and

the Chevrolet Silverado in the right lane at speeds in excess of the posted 45-mile-an-hour speed

limit. The Silverado swerved toward Sierra again. Sierra passed the truck, re-entered the right

lane, and decelerated. However, the truck came toward him again from behind, so Sierra sped up

and approached the intersection of North Loop Road and Link Street, where Sierra lived. Sierra

turned onto Link Street, but lost control of the motorcycle and began to slide before regaining

control again. After turning, Sierra failed to notice a truck stopped at a three-way stop sign on

the road ahead of him. He braked and "lightly" hit the back of the stopped truck. Meanwhile,

the maroon Silverado drove past Sierra on Link Street.          The Silverado avoided hitting an

oncoming car in the opposite lane, but the Silverado's driver lost control of the truck and hit an

SUV parked in front of Sierra's neighbor's house before driving off.

       Other State witnesses at trial testified that they either witnessed the accident or else heard

loud noises, exited their houses, and witnessed the immediate aftermath of the accident. Sierra's

brother Christopher testified that he left the family house after hearing his brother rev his

motorcycle engine. According to Christopher, he'saw Sierra get on top of the sidewalk and a red

or maroon Chevy hit a parked SUV. Christopher stated he was about thirty feet away from the

crash. He identified Barron as the driver of the truck that struck the SUV. Neighbor Stephanie

Romo testified that she was about to leave her house to go have a cigarette when she heard Sierra

revving his motorcycle engine and then a loud boom. She went outside and saw a maroon truck
speed off. She and Christopher Sierra then tried to find the maroon truck, but could not locate it.

Robert Sierra testified that he and some family members searched for the truck and later found it

parked at a gas station on the corner of North Loop Road and Pendale Street with Barron and

another individual standing outside.

       Later that night, in connection with his investigation of the Link Street hit-and-run,

El Paso Police Department Officer Joel Holguin attempted to conduct a felony stop of a green

Yukon, but the vehicle sped off as Officer Holguin approached on foot. Following a chase, the

green Yukon crashed into a canal. One suspect ran off and was not arrested. The other occupant

of the vehicle, Barron, was arrested at the scene.

       Following Barron's arrest, Robert Sierra met police at the EPPD's Mission Valley

Substation. EPPD Officer Adrian Arellano then conducted a "one-on-one," which he described

as an identification procedure in which police "take the victim at a safe distance, either in a

vehicle or behind the light so the subject cannot see him and he sees . . . whether he recognizes

him or not." In this case, officers placed a spotlight on Barron. Sierra, who was standing thirty

yards away, viewed Barron through binoculars and positively identified Barron as the driver of

the maroon truck.


       At trial, the defense presented testimony from Martha Barranco. She testified that she

owned a maroon-colored 1999 Chevrolet Silverado, and that she loaned her husband Antonio the

vehicle on December 1, 2011. She admitted that Antonio was friends with Barron, but denied

giving Barron permission to use her truck.           She did not see Barron drive her truck on

December 1. She further testified that her husband Antonio was injured in an accident on

December 1.


                                        Procedural History
        Barron was indicted on one count of aggravated assault with a deadly weapon, with the

indictment alleging he used a motor vehicle in a deadly manner. Following trial, Barron was

convicted of the charged crime. He filed a motion for new trial and a notice of appeal. The trial

court initially denied Barron's motion for new trial. After the thirty-day primary period for filing

a motion for new trial expired, but still within the trial court's seventy-five-day plenary period,

Barron submitted, over State objection, a "motion to reconsider" the new trial motion that raised

new grounds not previously submitted during the thirty-day primary period. The trial court then

granted Barron's motion for new trial.           The State appealed, and we abated Barron's appeal

pending the outcome of the State's appeal.             We ultimately reversed the new trial order and

reinstated Barron's conviction, holding that the State's objection to the untimely-filed new

grounds raised in the motion to reconsider prevented the trial court from considering those

arguments in reaching its decision during the plenary period. State v. Barron, No. 08-12-00245-

CR, 2014 WL 505497 (Tex.App.~El Paso Feb. 7, 2014, pet. refd)(not designated for

publication)(State's appeal).

        We now consider the merits of Barron's appeal.

                                               DISCUSSION


        In five issues, Barron raises points on jury charge error, his purported exclusion from

trial, and legal sufficiency.       Because it is a potential rendition point, we begin with legal

sufficiency.

                                                       A.
                 Accomplice Witnesses: Definition and Legal Sufficiency Analysis

        In Issue Four, Barron contends that the evidence is legally insufficient to support his

conviction.1 Specifically, Barron argues that Robert Sierra should be considered an accomplice


' The State asks us toread Issue Four asbeing waived asmultifarious. We decline to do so.
witness in this case because he "encouraged" Barron's reckless behavior by driving his

motorcycle at a high speed and breaking multiple traffic laws in the process. In essence, Barron

alleges he and Sierra were joint parties in an illegal street race, rendering Sierra's testimony

unreliable.   Barron then asserts that under the accomplice witness rule, Sierra's in-court

identification of Barron, standing alone, cannot support Barron's conviction, nor can the

testimony of any other witness corroborate Sierra's identification of Barron as the man in the

maroon Chevrolet truck. Tied in with Sierra's purported accomplice status is Issue Three, in

which Barron argues the trial court should have also submitted an accomplice witness instruction

to the jury naming Sierra as his accomplice.

       We disagree both with Barron's characterization of Sierra as an "accomplice" and with

his conclusion that the evidence supporting conviction is insufficient.

                                       Standard of Review


        On legal sufficiency review, we assess all trial evidence "in the light most favorable to

the prosecution," to determine whether "any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt." [Emphasis omitted]. Clayton v. State, 235
S.W.3d 772, 778 (Tex.Crim.App. 2007), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979).             We review all record evidence in making this

determination—direct or circumstantial, properly admitted or not. Clayton, 235 S.W.3d at 778.

"Each fact need not point directly and independently to the guilt of the Appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the conviction."

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).

       We measure legal sufficiency based on the statutory elements of the offense as modified

by the allegations set out in the indictment. Malik v. State, 953 S.W.2d 234, 239 (Tex.Crim.App.
1997).

         In this procedural posture, we are not permitted to sit as "thirteenth jurors" and substitute

our judgment for that of the fact finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.

2010), Goodman v. State, 66 S.W.3d 283, 286 n.4 (Tex.Crim.App. 2001). Even so, we act as a

procedural failsafe against irrational verdicts, and we may reverse a conviction on legal

sufficiency grounds where no rational juror could find guilt beyond a reasonable doubt based on

the evidence presented at trial. Clayton, 235 S.W.3d at 778. This encompasses both situations in

which the State has failed to prove an essential element of the crime as a matter of law and

situations in which some evidence exists on every element, but no reasonable person could

convict in light of the state of evidence as a whole, even when viewed most favorably to the

prosecution. See Jackson, 443 U.S. at 320, 99 S.Ct. at 2789 (constitutional legal sufficiency

standard in criminal cases higher than "mere modicum" evidence standard); Brooks v. State, 323
S.W.3d 893, 906-07 (Tex.Crim.App. 2010).

         A separate, statutory standard of review for legal sufficiency is also implicated when the

State presents the testimony of an accomplice witness. See Tex.Code Crim.Proc.Ann. art.

38.14 (West 2005); see also Taylor v. State, No. 08-12-00143-CR, 2014 WL 792114, at *3

(Tex.App.~El Paso Feb. 26, 2014, no pet.)(not designated for publication). "In assessing an

evidentiary challenge under the accomplice witness statute, we first eliminate the accomplice's

live, sworn testimony at trial from consideration and then review the remaining evidence in the

light most favorable to the verdict to determine whether a rational juror would believe the

evidence 'tends to connect the defendant' to the charged crime." Taylor, 2014 WL 792114, at

*3.


         "An accomplice is someone who participates with the defendant before, during, or after
the commission of a crime and acts with the required culpable mental state." Druery v. State,

225 S.W.3d 491, 498 (Tex.Crim.App. 2007). "[Complicity with an accused in the commission

of another offense apart from the charged offense does not make that witness's testimony that of

an accomplice witness." Id. "In short, if the witness cannot be prosecuted for the offense with

which the defendant is charged, or a lesser-included offense of that charge, the witness is not an

accomplice witness as a matter of law." Id.; accord Quijano v. State, No. 14-10-00108-CR,

2010 WL 5132588, at *2 (Tex.App.-Houston [14th Dist] Dec. 14, 2010, pet. ref d)(mem. op.,

not designated for publication)(in aggravated assault trial, woman who agreed to commit a

robbery with defendant before he assaulted her was not defendant's "accomplice" because the

charge at trial was aggravated assault, not robbery, and she could not be an accomplice to her

own assault).

                                            Analysis

       At the heart of Barron's arguments in Issues Three and Four is the allegation that he and

Sierra were street-racing each other at the time of the aggravated assault. Because street-racing

is illegal, Barron maintains Sierra's testimony should be excluded from our analysis on the basis

that both he and Sierra were allegedly engaged in a shared criminal activity. Barron also urges

us to reverse his conviction because the trial court, failing to recognize Sierra's status as an

accomplice, did not submit an accomplice witness instruction for the jury's consideration.

       We are not convinced Barron's contention that he and Sierra were street-racing is borne

out by the record before us. Even so, assuming for argument's sake that both Barron and Sierra

were engaged in illegal street-racing, the charge in this case was aggravated assault, not street-

racing, and Sierra could not become an accomplice to his own aggravated assault by racing with

Barron. See Quijano, 2010 WL 5132588, at *2 (fact that assailant and victim agreed to commit a
robbery together did not make assault victim her assailant's "accomplice" for purposes of the

assault case, even where her assault arose during the robbery). Simply put, even if what Barron

says is true, Sierra would not fit the definition of an accomplice for purposes of the accomplice

witness statute, as a separate crime—aggravated assault—arose during the course of a purported

joint criminal episode between co-conspirators.         Quijano, 2012 WL 5132588, at *2. Since

Barron is not an accomplice witness to the aggravated assault, the trial court did not err by

refusing to submit an accomplice witness instruction. Issue Three is overruled. See Ferrel v.

State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001)(jury instruction required only if issue is raised

by some evidence).

       Additionally, because Sierra was not Barron's accomplice, the special legal sufficiency

standard for accomplice witness testimony does not apply, and we may give Sierra's testimony

full weight. Both Sierra and his brother Christopher identified Barron as the man in the maroon

Chevrolet truck.   Barron maintains that Sierra's testimony is unworthy of credence because

Sierra identified Barron as the driver of the maroon truck from a distance through binoculars

after police walked him into a spotlight.           Likewise, Christopher's testimony should be

disbelieved because he was only able to see the driver of the truck for a few brief moments at

night. It is for the jury to decide how much weight to given that testimony, particularly in light

of the fact that Sierra also saw Barron while the aggravated assault occurred. We cannot say

based on the record presented that no rational juror could have found Barron guilty.          The

evidence presented is legally sufficient.

       Issue Four is overruled.


                                                   B.
                                            Trial in Absentia


       In Issue Five, Barron urges us to reverse his conviction because the trial court wrongfully
tried him in absentia during portions of voir dire. Specifically, Barron contends his right to be

present was violated when the trial court refused to allow him to stand at the bench with trial

counsel during bench conferences in which the judge examined individual jurors' qualifications

and exemptions outside the hearing of the remaining veniremen. We conclude that error, if any,

was harmless.


        A criminal defendant has the constitutional right to be present at all stages of trial,

including voir dire. Bledsoe v. State, 936 S.W.2d 350, 352 (Tex.App.~El Paso 1996, no pet.). A

trial court commits error by hearing veniremen's requests to be excused while the defendant is

"absent from the courtroom." Weber v. State, 829 S.W.2d 394, 396 (Tex.App.-Beaumont 1992,

no pet.). Barron cites no authority for the proposition that his exclusion from bench conferences

dealing with juror qualifications and exemptions constituted being tried in absentia, given that he

was ostensibly outside the hearing of the bench conference but still present in the courtroom

while the trial court questioned potential jurors. Assuming arguendo that Barron had the right to

be present at the bench during this stage of voir dire, his exclusion from this process was

harmless. "An appellant is harmed by a constitutional error unless after reviewing the record, the

reviewing court determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment."     Routier v. State, 112 S.W.3d 554, 577 (Tex.Crim.App. 2003);

TEX.R.APP.P. 44.2.


        In this case, the trial court, over objection, excluded Barron three times from bench

conferences after Barron's counsel specifically requested he be present as the trial court

examined the veniremen, instead requiring Barron to sit at the counsel table.        As judicially

noticed by the trial court, the distance between counsel table and the bench was less than twenty

feet.   During the first bench conference, the judge assessed several prospective jurors'
qualifications, including the ability to speak English, and one juror was disqualified on the basis

of a theft conviction. Barron's counsel did not question these prospective jurors or object to their

exclusion. During the second bench conference, the trial court inquired about exemptions, and

seven jurors were excused without objection for medical, family, or educational reasons. Again,

Banon's counsel did not question these jurors or object. Finally, at the last bench conference,

the judge asked the venire if any members had any other excuses they would like to raise. The

judge did not excuse any potential jurors after this conference, and Barron's counsel did not

question any jurors. After the three bench conferences, the State and Barron both conducted voir

dire. The trial court struck jurors who did not qualify, excused others, allowed the parties to

exercise peremptory challenges, and then announced who would serve on the jury. Barron did

not object to the seating of the jury.

        Courts in similar cases have found that appellants were not harmed. See Jasper v. State,

61 S.W.3d 413 (Tex.Crim.App. 2001)(any error in excusing two jurors for valid non-economic

reasons before defendant entered courtroom was harmless beyond a reasonable doubt); See

Adanandus v. State, 866 S.W.2d 210, 220 (Tex.Crim.App. 1993)(defendant's exclusion from in-

chambers meeting regarding presence of video cameras during voir dire was harmless; counsel's

arguments were consistent with previous written motion, "Appellant's assistance was not needed

in order to further his defense on the issues discussed[,]" counsel made bill of exceptions when

request to exclude cameras was denied, and "[n]o decisions were made by appellant's attorney

regarding jury shuffle or the use of strikes and no other matters of substance were discussed");

Fulmer v. State, 401 S.W.3d 305, 316 (Tex.App.~San Antonio 2013, pet. ref d), cert, denied,

134 S. Ct. 436, 187 L. Ed. 2d 293 (2013)(defendant's right to be physically present was violated

when judge commenced juror qualification process in defendant's absence, but error was



                                                10
harmless beyond a reasonable doubt). We conclude beyond a reasonable doubt that Barron's

placement at counsel's table during voir dire did not harm him based on the record before us..

       Issue Five is overruled.


                                                 C.
                                       Jury Charge Errors

       Barron's remaining issues deal with jury charge errors. We address them in turn.

                                       Standard of Review


       A defendant is entitled to a jury instruction that is raised by the evidence. Ferrel, 55
S.W.3d at 591. We review jury charge error claims under a two-step process. State v. Sanchez,

393 S.W.3d 798, 802 (Tex.App.~El Paso 2012, pet. refd), cert, denied 134 S. Ct. 221, 187
L. Ed. 2d 144 (2013).     First, we must determine whether error, in fact, exists. If so, we then

ascertain whether the error was harmful. Id. The level of harm necessary to justify reversal of a

criminal conviction depends on whether the appellant objected to the charge at trial. Id. If the

defendant did object, we will reverse on a showing of "some harm." If the defendant failed to

object, we will only reverse the conviction upon a showing of "egregious harm." Id.

                                                 1.
                                  Accomplice Witness Instruction

       In Issue Three, Barron avers that the trial court erred by failing to include an instruction

on the accomplice witness rule. As we stated previously in the Legal Sufficiency section of this

opinion, victim Robert Sierra was not an "accomplice" to his own aggravated assault by Barron.

Quijano, 2010 WL 5132588, at *2. As such, the trial court did not err by failing to include an

accomplice witness instruction. See Ferrel, 55 S.W.3d at 591 (defendant only entitled to jury

instruction if evidence raises issue). Issue Three is overruled.

                                                 2.
                                     Denial of Assault Charge


                                                 11
       In Issue One, Barron maintains that the trial court erred by failing to grant an instruction

on the lesser-included offense of assault by threat. We disagree.

       "Courts apply the Aguilar/Rousseau test to determine whether an instruction on a lesser-

included offense should be given to the jury."         Cavazos v. State, 382 S.W.3d 377, 382

(Tex.Crim.App. 2012). The Aguilar/Rosseau test has two elements. "First, the court determines

if the proof necessary to establish the charged offense also includes the lesser offense." Id. "If

this threshold is met, the court must then consider whether the evidence shows that if the

Appellant is guilty, he is guilty only of the lesser offense." Id. The State concedes that assault

by threat is a lesser-included offense of aggravated assault by threat, satisfying the first Aguilar-

Rousseau factor. The only outstanding question before the Court is whether the jury could have

rationally found Barron guilty only of assault by threat based on the evidence presented.

       The difference between assault by threat and aggravated assault by threat is the use of a

deadly weapon. Thus, Barron was entitled to receive the lesser-included instruction if the jury

could have found that Barron did not use or exhibit a deadly weapon during the assault, or that

he used his car to threaten Sierra in a non-deadly manner. See Perry v. State, No. 06-13-00051-

CR, 2014 WL 3973929, at *9 (Tex.App.-Texarkana Aug. 15, 2014, pet. ref d)(mem. op., not

designated for publication)(holding that, to show entitlement to assault by threat instruction,

"there must be some evidence suggesting that [a defendant] did not use or exhibit a deadly

weapon in the commission of the assault").

       "A defendant is entitled to an instruction on a lesser-included offense if some evidence


from any source raises a fact issue on whether he is guilty of only the lesser, regardless of

whether the evidence is weak, impeached, or contradicted." Cavazos v. State, 382 S.W.3d 377,

383 (Tex.Crim.App. 2012). Barron argues that there is more than a scintilla of record evidence


                                                 12
showing the truck was not used as a deadly weapon under the circumstances. As proof, he points

to the fact that Sierra allegedly followed the truck after almost being forced off the road and

posits that if Sierra had actually thought that his life was actually in danger, he would not have

pursued the truck. Thus, according to Barron, we may take Sierra's pursuit of the truck as some

evidence that Sierra did not subjectively believe the truck was being used in a deadly manner,

which would justify submission of a simple assault charge.

       The record does not appear to bear out Barron's contention that Sierra pursued the truck.

In any event, we disagree that we must measure the deadliness of Barron's threatening conduct

through the victim's personal perceptions. "[A] victim's subjective perception of the threat is

not dispositive in an aggravated assault by threat case. Instead, the operative question is whether

the defendant's conduct would be perceived as objectively threatening under the circumstances."

Montejano v. State, No. 08-12-00235-CR, 2014 WL 4638911, at *6 (Tex.App.~El Paso Sept. 17,

2014, no pet.)(not designated for publication).

       From an objective standpoint, a truck may be perceived as a deadly weapon if, as in this

case, the driver repeatedly swerves the truck at a motorcycle while both vehicles are moving at

high speeds; that conduct would suggest to a reasonable person that the truck is being used to

cause death or serious bodily injury. However, we fail to see, from an objective standpoint, how

there is more than a scintilla of evidence showing that a reasonable person would perceive the

use of the truck under those circumstances as anything but a way to threaten to inflict death or

serious bodily injury on Sierra. Our sister courts have reached the same conclusion in addressing

similar cases. See, e.g., Dobbins v. State, 228 S.W.3d 761, 768 (Tex.App.-Houston [14th Dist.]

2007, pet. dism'd as untimely)(holding that instruction was not warranted where driver drove

vehicle toward police officer at five to ten miles per hour because even at that speed vehicle was



                                                  13
"capable of causing death or serious bodily injury"). Because there is no evidence suggesting

that Barron could be found guilty of simple assault by threat rather than aggravated assault by

threat under the circumstances, the trial court did not err by refusing to instruct the jury on

simple assault by threat.

        Issue One is overruled.


                                                3.
                            Judicial Comment on Weight of Evidence

        In Issue Two, Barron contends that the trial court improperly commented on the weight

of the evidence by including an erroneous jury charge. The specific language Barron challenges

is as follows:


       A fact may be established by direct evidence or circumstantial evidence or both.
       Afact is established by directevidence when proved by documentary evidence or
       by witnesses who saw the act being done or heard the words spoken. A fact is
       established by circumstantial evidence when it may be fairly and reasonably
        inferred from other facts proved. [Emphasis added].

        Barron asserts that the italicized language stating that a "fact is established by direct

evidence when proved by . . . witnesses who saw the act being done or heard the words spoken"

wrongfully gave thejury the impression that the State's witnesses were inherently trustworthy.

        The Texas Code of Criminal Procedure provides that "the judge shall . . . deliver to the

jury ... a written charge . . . not expressing any opinion as to the weight of the evidence . . . ."

Tex.Code Crim.Proc.Ann. art. 36.14 (West 2007). A jury charge that correctly sets out the law

may still be improper if it nevertheless comments on the weight of the evidence. See Batts v.

State, No. 11-10-00156-CR, 2012 WL 2469546, at *6 (Tex.App.-Eastland June 28, 2012, pet.

ref d)(mem. op., not designated for publication). In Brown v. State, the Texas Courtof Criminal

Appeals set a three-point spectrum for determining when instructions constitute impermissible

judicial comment on the weight of the evidence. See 122 S.W.3d 794, 799-801 (Tex.Crim.App.

                                                 14
2003). "On the far end of the 'improper-judicial-comment' scale is a comment or instruction that

states a mandatory presumption and thereby violates due process." Brown, 122 S.W.3d at 799.

"[T]o meet due process, any such instruction must be permissive rather than mandatory ('you

may infer' rather than 'the law presumes'), and there must be a reasonably tight logical fit

between the basic facts proved and the ultimate fact inferred." Id. at 799.

       "Somewhere in the middle of the 'improper-judicial-comment' scale are instructions on

non-statutory presumptions or 'vehicles employed to review the sufficiency of evidence.'" Id. at

799. While a trial or appellate court may apply presumptions in measuring evidence, "the jury

cannot be told of that presumption or rule." Id. at 800. Such an instruction is an improper

comment on the weight of the evidence. Id. Finally, at the near end of the improper judicial

comment spectrum, a trial court cannot instruct on inferences that unreasonably draw attention to

certain evidence. Id. at 800-01. "[A] court's jury instruction could violate article 36.14 . . . [by]

obliquely or indirectly convey some opinion on the weight of the evidence by singling out that

evidence and inviting the jury to pay particular attention to it." Id. at 801.

       Barron's argument bleeds the distinctions between the three categories together, and he

makes points related to all three types of prohibited evidence. As such, we parse the instruction

by category.     First, Barron maintains the instruction creates a mandatory, irrebuttable

presumption that the State's witnesses are inherently credible by stating that a fact "is"

established by eyewitness testimony. We disagree that the language in this charge creates a

mandatory presumption favor of the State. In the first place, the charge never mentions the State,

it merely refers to eyewitnesses. In the second place, the next paragraph of the change dispels

any linguistic ambiguity over whether the word "is" is simply used as a neutral copula linking

one half of the sentence to another or whether it is instead an implicit command to the jury to



                                                  15
assume a fact exists:


         You are the exclusive judges ofthefacts proved, ofthe credibility ofthe witnesses,
         and of the weight to be given the testimony, but you are bound to receive the law
         from the Court, which is herein given to you, and be governed thereby.
         [Emphasis added].

         This portion of the charge clarifies that the jury is ultimate the decider of fact, and can

either accept or reject the account of any witness, including a State's witness.         When read

together with the portion of the charge Barron challenges, it becomes clear to a reasonable reader

that "is" is not a command—eyewitness testimony is direct evidence, but the jury is still free to

believe the witness or not. As such, there is no "far end" mandatory presumption at issue here.

Likewise, there is nothing in the charge that tells the jury to apply a non-statutory presumption,

meaning that there is no "middle" spectrum issue, either. We are left with a near-spectrum issue:

did the charge unnecessarily call attention to certain evidence?

         In Batts, our sister court in Eastland confronted a jury instruction on the near end of the

spectrum which stated:        "Circumstantial evidence can corroborate the testimony of an

accomplice witness." 2012 WL 2469546, at *6. The Eastland Court, relying on Brown, held

that the instruction was "marginally" a comment on the weight of evidence and thus improper; it

did not "pluck out" particular pieces of trial evidence and offer them to the jury, but it did

highlight "a certain type of evidence—circumstantial evidence" and "focus the jury's attention

on that type of evidence as corroboration for accomplice testimony." Batts, 2012 WL 2469546,

at *6.   By doing so, the trial court wrongly gave the jury an impression that circumstantial

evidence could have existed to support the State's position.

         Barron argues that at the very least, this instruction was erroneous because, like the Batts

instruction, it improperly drew the jury's attention to certain types of evidence: namely,

eyewitness and documentary evidence. Assuming that Barron is correct and that this charge


                                                 16
constitutes an improper comment under the logic of Batts, Barron cannot establish that this error

harmed him.     The instruction, much like the instruction in Brown, "is mild, neutral, and an

obvious common-sense proposition[,]" and Banon cannot establish that he was harmed by it.

Brown, 122 S.W.3d at 803; cf Batts, 2014 WL 2469546, at *6.

        Issue Two is overruled.


                                                  D.
    State's Modification Request: Failure to Include Deadly Weapon Finding in Judgment

        In footnote 20 of its brief, the State draws our attention to the fact that although the jury's

verdict included a finding that Barron used a motor vehicle as a deadly weapon in the

commission of this offense, the "Findings on Deadly Weapon" portion of the judgment of

conviction contains an entry that states "N/A." The State then points us to Tex.R.App.P. 43.2(b)

and related authority and asks us to use our power to modify and affirm judgments to insert the

omitted deadly weapon finding back into the judgment of conviction.

       Although we acknowledge the existence of this power, we pause to note that the Texas

Court of Criminal Appeals has recently clarified that, at least in straight bench trials, a trial judge

has the discretionary authority to decline to enter a deadly weapon finding even after finding a

defendant guilty of a deadly-weapon offense. See Guthrie-Nail v. State, No. PD-0125-14, 2015
WL 5449642, at *3-*4 (Tex.Crim.App. Sept. 16, 2015)(reh'g granted). In that case, the trial

court accepted a plea deal in which the defendant implicitly admitted to using a deadly weapon

during an offense. The trial court's original conviction judgment listed "N/A" under the deadly

weapon finding section, but the trial court later changed that section to reflect an affirmative

deadly weapon finding. The defendant objected to the change; the State asked the appellate

courts to affirm the change as a nunc pro tunc revision. Id. The Court of Criminal Appeals

remanded for a hearing to determine whether the trial court initially exercised its ability to


                                                  17
decline to enter a deadly weapon finding (in which case reformation to include the finding would

be inappropriate), or whether the trial court had actually made a deadly weapon finding that had

been erroneously omitted and thus was properly subject to correction through a judgment nunc

pro tunc. Guthrie-Nail, 2015 WL 5449642, at *5. In light of the holding in Guthrie-Nail, we

must exercise caution before using our modification power to include an omitted deadly weapon

finding, and should first determine whether the failure to include a deadly weapon finding was

truly a clerical error and not a conscious decision by the .trial court.

        In this case, use of the modification power is appropriate, since the record makes clear

that the omission of the deadly weapon finding was a clerical enor and not an attempt by the trial

court to enter a quasi-judgment non obstante veredicto as to the deadly weapon finding. During

the pronouncement ofjudgment hearing, the trial court stated, in relevant part:

        THE COURT: So what I'm going to do is that I'm going to-based upon the
        evidence and the verdict of the jury I'm going to enter a[n] affirmative finding on
        the use of a deadly weapon in the Court's judgment, which is going to affect his
        ability to be eligible for parole, and that will be part of the judgment of the Court
        and the evidence supported based on the verdict.

        Because it is readily apparent from the record that the trial court intended to enter a

judgment that conformed with the jury's verdict, and because the judgment of conviction omits

the jury's deadly weapon finding that the trial court orally pronounced, we will modify the

judgment to include the deadly weapon finding.

                                           CONCLUSION


        Barron has failed to demonstrated reversible error.            We modify the judgment of

conviction to reflect an affirmative deadly weapon finding and affirm the judgment as modified.

TEX.R.APP.P. 43.2(b).




                                                   18
August 12,2016
                                           YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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