Joe William Moore v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-22-00051-CR

JOE WILLIAM MOORE,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 19th District Court
McLennan County, Texas
Trial Court No. 2021-352-C1

MEMORANDUM OPINION

In three issues, Appellant Joe William Moore challenges his convictions for one

count of aggravated sexual assault and one count of aggravated assault. See TEX. PENAL

CODE ANN. §§ 22.02, 22.021. Specifically, Moore argues that: (1) the trial court abused its

discretion by excluding evidence demonstrating the victim’s bias in violation of Texas

Rules of Evidence 613(b), see TEX. R. EVID. 613(b); (2) he was egregiously harmed by the

trial court’s omission of relevant statutory definitions in the guilt-innocence charge; and

(3) the trial court assessed unauthorized court costs. We affirm as modified.
Factual Background

The evidence at trial reflects that on the night of January 7, 2021, leading into the

early morning of January 8, 2021, Moore and the victim, his wife, were in a heated

argument over the possibility of divorce as their marriage had deteriorated over the

years. During the argument, Moore grew violent and allegedly threatened/attacked his

wife with a kitchen knife. At some point, Moore began demanding the whereabouts of

his wife’s pistol that she bought a few years earlier for self-defense. Trying to buy herself

some time, the wife claimed that the gun was in the truck outside. Moore forced his wife

outside to look for the gun. This exchange was captured on the doorbell camera. When

his wife could not produce the gun, Moore forced her back inside the house and

continued to demand the location of the gun. The wife eventually gave in and told Moore

the gun was in her purse inside the master bedroom. The wife attempted to secure the

gun first, but Moore overpowered her and secured the gun for himself. Moore then

sexually assaulted his wife for the next six hours at gunpoint. When Moore was finished,

he ordered his wife out of the bedroom, claiming that he would shoot himself. The wife

left the room, and when she heard a single gunshot coming from the bedroom, she ran to

her security panel and activated the panic button. Afterwards, the wife returned to the

bedroom to find Moore sitting on the bed, alive, and a bullet hole in the ceiling. Officers

responding to the activated panic button soon secured the scene and took Moore into

custody. The wife underwent a physical examination and received treatment for her

injuries.

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Issue One

In his first issue, Moore argues that the trial court erred in excluding evidence that

Moore’s wife filed for divorce after Moore’s arrest and was awarded the majority of the

marital property. Moore asserts that the evidence would have shown bias on his wife’s

part in the form of economic motive pursuant to Texas Rule of Evidence 613(b). See TEX.

R. EVID. 613(b).

AUTHORITY

We review the trial court’s decision to admit or exclude evidence under an abuse-

of-discretion standard. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A

trial court abuses its discretion when the decision falls outside the zone of reasonable

disagreement. Id. at 83. If the trial court’s decision to exclude evidence is correct on any

theory of law applicable to the case, it will be sustained. Weatherred v. State, 975 S.W.2d

323, 323 (Tex. Crim. App. 1998).

Rule 613(b) permits “impeaching a witness by proof of circumstances or

statements showing bias or interest on the part of such witness,” and parties are allowed

great latitude to show “any fact which would or might tend to establish ill feeling, bias,

motive and animus on the part of the witness.” Carpenter v. State, 979 S.W.2d 633, 634

(Tex. Crim. App. 1998) (quoting London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App.

1987)); see also Johnson v. State, 263 S.W.3d 405, 424 (Tex. App.—Waco 2008, pet. ref'd);

TEX. R. EVID. 613(b).

The excluded testimony given by the wife pertains to the division of assets as a

result of the divorce from Moore. At a hearing outside the presence of the jury, the wife

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testified that she was awarded the proceeds from the house that she owned before her

marriage to Moore and two vehicles. One of the vehicles was under the wife’s name,

with Moore making payments, and the other was purchased using proceeds from selling

Moore’s motorcycle. The record indicates Moore attempted to use the wife’s testimony

to establish a possible economic motive to fabricate the events of January 7, 2021—to have

Moore so that he would be unable to appear at the final divorce hearing to dispute the

property division.

Moore draws a parallel between this case and Nguyen v. State, 506 S.W.3d 69, 72

(Tex. App.—Texarkana 2016, pet. ref’d). In Nguyen, Nguyen drove his car in front of a

motorcycle driven by the victim and slammed on his brakes, forcing the victim to crash

his motorcycle and sustain serious injury. Id. The trial court limited cross-examination

of the victim by prohibiting questions regarding the pending civil lawsuit that the victim

filed against Nguyen. Id. at 85. The Sixth Court of Appeals determined that the trial court

erred, holding that “[t]he fact that a witness has filed a civil suit against a defendant

arising from the same incident for which the defendant is on trial is generally admissible

as tending to show interest and/or bias on the part of the witness.” Id.; see also Cox v.

State, 523 S.W.2d 695, 700 (Tex. Crim. App. 1975). As the court noted, “[t]he relevance of

such evidence is derived from its impeachment value to show motive to give false

testimony based on a witness’ desire to recover damages or other relief.” Nguyen, 506

S.W.3d at 86.

Moore v. State Page 4
DISCUSSION

Nguyen is inapplicable in this case because Moore’s wife had no economic interest

in Moore’s conviction. To impeach a witness under Rule 613(b), the given facts and

circumstances, when tested by human experience, must tend to show that a witness may

shade her testimony for the purpose of helping to establish one side of the cause only.

Carroll v. State, 916 S.W.2d 494, 497–98 (Tex. Crim. App. 1996) (quoting Jackson v. State,

482 S.W.2d 864, 868 (Tex. Crim. App. 1972)). In Nguyen, it was reasonable to conclude

that the victim had a possible economic motive to shade his testimony because the

outcome of the criminal trial could be indicative of the victim’s likelihood of success in

his civil suit. See Nguyen, 506 S.W.3d at 86. However, Moore’s divorce was final before

his criminal trial convened, including any economic benefit received by his wife. Thus,

the wife had no “interest” or “bias” under Rule 613(b) to “shade” her testimony because

the outcome of Moore’s criminal trial had no bearing on the outcome of the finalized

divorce.

Under Rule 403, the trial court may also properly limit the scope of cross-

examination to prevent harassment, prejudice, confusion of the issues, harm to the

witness, and repetitive or marginally relevant interrogation. TEX. R. EVID. 403; Nguyen,

506 S.W.3d at 85. The Court of Criminal Appeals has explained that Rule 403 requires

the court to balance

(1) the inherent probative force of the proffered item of evidence along with
(2) the proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not

Moore v. State Page 5
been equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

The trial court could have reasonably concluded that the wife’s testimony had a

strong tendency to confuse or distract the jury from the main issues. The case at trial was

whether Moore assaulted and sexually assaulted his wife, not whether he received his

fair share from a divorce proceeding. Furthermore, as part of the wife’s excluded

testimony, she stated that Moore “wanted to take the money from the sale of the house

because his bond was 400,000 and he needed 40,000. So he wanted to take some of the

proceeds of my home, which he had never paid a house note, and get out of jail.” This

statement could further confuse the main issue, which was Moore’s criminal culpability,

not whether he was entitled to use proceeds from a house sale to post bond.

After balancing the various Rule 403 factors, we discern no abuse of discretion on

the part of the trial court for excluding the wife’s testimony. We overrule Moore’s first

issue.

Issue Two

In his second issue, Moore contends that the abstract section of the jury charge, as

it relates to the sexual assault charge, erroneously defined the terms “intentionally” and

“knowingly” by providing “result of conduct” rather than “nature of conduct”

definitions, which caused Moore to suffer egregious harm.

Moore v. State Page 6
AUTHORITY

When an appellant complains of jury charge error, we must first determine

whether the charge contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App.

2015); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

If error exists, we then analyze the harm resulting from the error. If the
error was preserved by objection, any error that is not harmless will
constitute reversible error. If the error was not preserved by objection, the
error will not result in reversal of the conviction without a showing of
egregious harm. Egregious harm is harm that deprives a defendant of a
“fair and impartial trial.”

Price, 457 S.W.3d at 440 (citations omitted).

Article 36.14 of the Texas Code of Criminal Procedure provides that the trial court

must provide the jury with “a written charge distinctly setting forth the law applicable to

the case. . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14. Moore argues that because

aggravated sexual assault focuses on whether the defendant acted intentionally or

knowingly with respect to the nature of his conduct rather than the result of his conduct,

the abstract section of the charge should have limited the definitions, as outlined in

section 6.03 of the Penal Code, to the nature of the conduct. TEX. PENAL CODE ANN. § 6.03;

see also Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999); Reed v. State, 421 S.W.3d

24, 28–29 (Tex. App.—Waco 2013, pet. ref’d).

Section 6.03 defines “intentionally” and “knowingly” in light of “two possible

conduct elements—nature of the conduct and result of the conduct.” Price, 457 S.W.3d at

441. The relevant parts of section 6.03 state:

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(a) A person acts intentionally, or with intent, with respect to the nature of
his conduct or to a result of his conduct when it is his conscious objective
or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature
of his conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or that the circumstances exist. A
person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to
cause the result.

TEX. PENAL CODE ANN. § 6.03 (a), (b).

We use the gravamen of the offense to decide which conduct elements should be

included in the culpable mental-state language. Price, 457 S.W.3d at 441.

The gravamen of the offense is: the “gist; essence; [or the] substance” of the
offense (BALLENTINE'S LAW DICTIONARY 534 (3rd ed. 1969)); “[t]he
substantial point or essence of a claim, grievance, or complaint” (BLACK'S
LAW DICTIONARY 817 (9th ed. 2009)); “the part of an accusation that weighs
most heavily against the accused; the substantial part of a charge or
accusation.” (WEBSTER'S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE
ENGLISH LANGUAGE 617 (1989)).

Price, 457 S.W.3d at 441.

If the gravamen of an offense is the nature of conduct, the jury charge on culpable

mental state should be tailored to the nature of conduct. See, e.g., Alvarado v. State, 704

S.W.2d 36, 38–40 (Tex. Crim. App. 1985). We have held that aggravated sexual assault is

“a conduct-oriented offense in which the focus of the offense is on whether the defendant

acted intentionally or knowingly with respect to the nature of his conduct rather than the

result of his conduct.” Reed, 421 S.W.3d at 28–29. As such, assuming without deciding

that the trial court erred, Moore did not object. Therefore, Moore is not entitled to a

Moore v. State Page 8
reversal unless he was egregiously harmed by the definitions included in the charge. See

Almanza, 686 S.W.2d at 171.

Egregious Harm. “Jury-charge error is egregiously harmful if it affects the very

basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive

theory.” Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). In examining the

record for egregious harm, we consider the entire jury charge, the state of the evidence,

the final arguments of the parties, and any other relevant information revealed by the

record of the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).

Additionally, we may also consider “the degree, if any, to which the culpable mental

states were limited by the application portion of the jury charge.” Patrick v. State, 906

S.W.2d 481, 492 (Tex. Crim. App. 1995) (quoting Hughes v. State, 897 S.W.2d 285, 296 (Tex.

Crim. App. 1994)).

DISCUSSION

While the trial court gave the full statutory definitions of the culpable mental states

in the abstract portion of the charge, the trial court limited the scope of the definitions in

the application paragraph pertaining to the alleged conduct:

As to AGGRAVATED SEXUAL ASSAULT and AGGRAVATED
ASSAULT alleged in the indictment, the State has the burden of proof. The
State must prove each of the elements in the charged offenses beyond a
reasonable doubt. The elements are set out below. If each of you believes
the State has proved each and every element beyond a reasonable doubt,
you are required to return a verdict of guilty.

If you believe the State has failed to prove any element of any count
of the Indictment, you are required to return a verdict of not guilty as to
that count. If you have a reasonable doubt as to whether the Defendant is

Moore v. State Page 9
guilty of a count of the indictment, you are required to find the Defendant
not guilty as to that count.

ELEMENTS – COUNT I

1. On or about the 8TH day of January, 2021;
2. in McLennan County, Texas;
3. the Defendant, JOE WILLIAM MOORE;
4. did then and there intentionally or knowingly cause the penetration of
the sexual organ of [THE COMPLAINANT], hereafter styled the
complainant, by the sexual organ of the Defendant;
5. without the consent of the complainant;
6. and the Defendant did then and there by acts or words threaten to cause
or place, the complainant in fear that death or serious bodily injury
would imminently be inflicted on [THE COMPLAINANT], and the acts
or words occurred in the presence of the complainant.

Thus, the jury was instructed that it could convict Moore of aggravated sexual assault

only if they found that 1) Moore had intentionally or knowingly caused the penetration

of his wife’s sexual organ by Moore’s sexual organ, and 2) Moore threatened to cause or

placed his wife in fear of death or serious bodily injury. The application is specifically

tailored to demonstrate the statutorily prohibited conduct. See TEX. PENAL CODE ANN. §

22.021.

Further, the definitions of “intentionally” and “knowingly” included in the

abstract section of the jury charge do not affect the very basis of the case, deprive Moore

of a valuable right, or vitally affect a defensive theory. Moore’s defense, though

somewhat ambiguous, leans towards the theory that his wife allegedly had an economic

motive to fabricate the events that transpired on January 7, 2021. In other words, this was

not a case in which intent was a contested issue at trial. Therefore, whether Moore

possessed the culpable mental state required to commit the offense is neither the focal

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point of Moore’s defense nor does it affect his right to assert a defense. Accordingly, we

cannot conclude that the alleged charge error caused Moore egregious harm. See Saldivar

v. State, 783 S.W.2d 265, 268 (Tex. App.—Corpus Christi–Edinburg 1989, no pet.) (“Where

no defense is presented which would directly affect an assessment of mental culpability,

there is no harm in submitting erroneous definitions of ‘intentionally’ and ‘knowingly.’”);

see also Jones v. State, 229 S.W.3d 489, 494 (Tex. App.—Texarkana 2007, no pet.). We

overrule Moore’s second issue.

Issue Three

In his third issue, Moore argues that the trial court erred in assessing certain

unauthorized costs. The State concedes that the trial court erred and agrees that the

judgment should be modified as Moore requests.

Moore specifically argues that the following fees and costs were improperly

assessed: (1) sheriff’s criminal court costs, $35.00; (2) criminal jury fee, $20.00; (3) DNA

testing fee, $250.00; and (4) court appointed investigator’s fee, $1,500.00. We find no legal

basis for these fees. Accordingly, we sustain Moore’s third issue and modify the

judgment and bill of costs to delete the foregoing fees.

Conclusion

Having overruled Moore’s first and second issues and sustained Moore’s third

issue, we affirm the trial court’s judgment as modified.

MATT JOHNSON
Justice

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Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed as modified
Opinion delivered and filed April 26, 2023
Do not publish
[CRPM]

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