COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
ANGEL FLORES, § No. 08-18-00065-CR Appellant, § Appeal from the v. § 120th District Court
§ of El Paso County, Texas THE STATE OF TEXAS, § (TC#20130D04898) Appellee. §
OPINION
A jury found Appellant Angel Flores guilty on two counts of attempted capital murder
involving two separate victims. Based on the jury’s verdict, he was sentenced to two 25-year
prison terms (to run concurrently) and assessed the maximum possible fine. In three issues,
Appellant contends that (1) the evidence was legally insufficient to support the jury’s verdict, (2)
the abstract portion of the jury charge incorrectly instructed the jury that he could be convicted of
attempted capital murder without a finding of specific intent to kill his victims, and (3) charge
error caused him egregious harm.1 While we agree that the charge was erroneous, we conclude
that Appellant has not met the egregious harm standard, nor has he convinced us that the evidence
1 Appellant was convicted in October 2014 but failed to file a timely appeal. However, on March 29, 2018, the Texas Court of Criminal Appeals issued an order granting him the right to proceed with a late appeal.
1 is legally insufficient to support the conviction. Accordingly, we affirm.
I. FACTUAL BACKGROUND
In the early morning hours of August 4, 2013, the two victims, Joseph Vargas and Michael
Ramirez, were at Vargas’s house for a social gathering, along with several other individuals,
including Richard Arriaga and Vargas’s sister, Alicia Vargas. While gathered outside the house,
Vargas, Ramirez, and Arriaga observed a commotion involving an individual spray-painting
graffiti (“tagging”) at a nearby abutment to a bridge, followed by the sounds of a fight, and gunfire.
Shortly thereafter, they observed two or three men running from the general direction of
the shooting and passing by the Vargas house. Moments later, they observed another set of three
men rapidly approaching the Vargas home, shouting that they believed the first set of men had
entered the Vargas house. The second set of men, one of whom was identified as Appellant, were
shouting, “VSM,” the name of a local street gang, and were asking who had “hit [them] up?”
Although Vargas and his friends told Appellant that they were not the men Appellant was looking
for, Appellant and his two compatriots continued to shout and act in an aggressive manner, causing
Vargas and his friends to retreat into the house. A family member called 911. Appellant and his
compatriots stayed outside the Vargas house for a short time, knocking on the door and continuing
to shout, but eventually they left the scene. But before leaving, one used a baseball bat to shatter
the window of a family member’s car that was parked outside the home.
Shortly thereafter, the police arrived and observed the broken car window, the baseball bat,
and also the fresh graffiti. However, after being unable to locate the suspects, the police quickly
left. Minutes later, Appellant and the two other men returned to the Vargas house and once again
confronted Vargas and his friends. Throughout this second encounter, Appellant, who Ramirez
described as being the “lead” man, continued to yell “VSM,” and accused Vargas and his friends
2 of throwing rocks at his house and of disrespecting him. Once again, Vargas and his friends
attempted to tell Appellant that they were not the individuals he was looking for, and asked him to
leave, but Appellant refused and continued to act in an aggressive and threatening manner.
Vargas, Ramirez, and Arriaga thereafter retreated into the house for safety, but shortly thereafter,
Ramirez went back outside to try to reason with Appellant and to encourage him to leave.
Appellant, however, struck Ramirez in the face, apparently knocking him unconscious. Vargas,
Arriaga, and Alicia remained inside the house, but Vargas could see Appellant and his friends
severely beating Ramirez as he lay on the ground. They took turns stomping and jumping on his
face, which Vargas described this way: “all three of them used [Ramirez’s] head as a soccer ball.”
Appellant and another of his compatriots then began pushing on the front door of the
Vargas house. Vargas, Arriaga, and Alicia tried to hold it shut. Appellant was eventually able
to enter the threshold of the house, and although Alicia tried to place herself between Appellant
and Vargas, Appellant reached over Alicia’s shoulders and punched Vargas in his face with his
fists. As Vargas attempted to defend himself, Alicia observed Appellant take something from
behind his back and swing at Vargas two times. Arriaga also observed Appellant swing at Vargas
in a “stabbing motion” three times, and immediately thereafter, both Arriaga and Alicia saw
Appellant holding a knife or “blade.” Although Vargas himself did not actually see the knife and
did not immediately realize that he had been stabbed, he and other witnesses in the house observed
blood squirting from his arm, and he later determined that he had been stabbed in both his arm and
his back.
When told that police were on the way, Appellant and his compatriots ran from the
property. Alicia recalled that as they left, all three of them kicked Ramirez one last time. Alicia
heard Appellant say, “this is the last time that you f--ing disrespect my house. You [f--ing]
3 learned your lesson. You don’t ever [f--ing] come around me like this.” Alicia placed a
tourniquet on Vargas’s arm to stop the bleeding, and after police and EMS arrived on the scene,
both Ramirez and Vargas were taken to the hospital for treatment.
II. PROCEDURAL BACKGROUND
Appellant was indicted on two counts of attempt to commit capital murder for the assaults
on Vargas and Ramirez. The indictment alleged that on or about August 4, 2013, Appellant
stabbed Joseph Vargas about his body with a deadly weapon, i.e., a knife, and that he kicked
Michael Ramirez about his head with a deadly weapon, i.e., his foot, with the specific intent in
both instances to commit the offense of capital murder, all while in the course of committing or
attempting to commit a burglary. A jury found Appellant guilty of both counts of capital murder,
and this appeal followed.2
III. ISSUES ON APPEAL
In his first two issues, Appellant contends that he was egregiously harmed by the jury
charge, asserting that it incorrectly instructed the jury that he could be convicted of attempted
capital murder without a finding that he had the specific intent to kill his victims. In his third
issue, Appellant contends that the evidence was legally insufficient to support the jury’s verdict.
We start our analysis with the third issue.
2 Appellant was also charged in the indictment with four counts of engaging in organized criminal activity, but the State later dismissed those charges. In addition, Appellant was charged with one count of burglary of a habitation, alleging that he had entered the Vargas home with the intent to commit the felony offense of aggravated assault. After Appellant was convicted of the attempted capital murder offenses, the trial court dismissed the burglary charge, finding that it arose from the same incident.
4 IV. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
Due process as guaranteed through the Fourteenth Amendment requires that every
conviction must be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S.
307, 315-16 (1979); Brooks v. State, 323 S.W.3d 893, 917 (Tex.Crim.App. 2010). In a legal
sufficiency challenge, we focus solely on whether the evidence, when viewed in the light most
favorable to the verdict, would permit any rational jury to find the essential elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 912 (establishing
legal insufficiency under Jackson v. Virginia as the only standard for review of the evidence).
In applying that standard, we acknowledge that our system designates the jury as the sole
arbiter of the credibility and the weight attached to the testimony of each witness. Dobbs v. State,
434 S.W.3d 166, 170 (Tex.Crim.App. 2014). The jury also discharges the duty “to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007), quoting
Jackson, 443 U.S. at 319. In doing so, the jury may choose to believe or disbelieve that testimony.
Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008). When the record supports
conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and
we defer to that determination. Dobbs, 434 S.W.3d at 170; see also Jackson, 443 U.S. at 319.
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone may be sufficient to establish guilt. Dobbs, 434 S.W.3d at 170.
Each fact need not point directly and independently to the guilt of the defendant, so long as the
cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id.
Nonetheless, juries are not permitted to come to conclusions based on “mere speculation or
5 factually unsupported inferences or presumptions.” Braughton v. State, 569 S.W.3d 592, 608
(Tex.Crim.App. 2018), quoting Hooper v. State, 214 S.W.3d 9, 15-16 (Tex.Crim.App. 2007).
We remain mindful that “[t]here is no higher burden of proof in any trial, criminal or civil,
and there is no higher standard of appellate review than the standard mandated by Jackson.”
Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). However, “[w]e are not to sit as a thirteenth
juror reweighing the evidence or deciding whether we believe the evidence established the element
in contention beyond a reasonable doubt[.]” Blankenship v. State, 780 S.W.2d 198, 207
(Tex.Crim.App. 1988) (en banc). Instead, “we test the evidence to see if it is at least conclusive
enough for a reasonable factfinder to believe based on the evidence that the element is established
beyond a reasonable doubt.” Id., citing Jackson, 443 U.S. at 318.
B. The Hypothetically Correct Jury Charge
We measure the sufficiency of the evidence to support a conviction against a hypothetically
correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). A
hypothetically correct jury charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theory of liability, and adequately describes the offense for which the defendant was
tried. Id.; see also Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex.Crim.App. 2018).
In this case, Appellant was charged with attempted capital murder. The Penal Code
provides that an individual commits the offense of murder one of two ways: (1) by intentionally
or knowingly causing the death of an individual; or alternatively, (2) by intending to cause serious
bodily injury and committing an act clearly dangerous to human life. TEX.PENAL CODE ANN.
§ 19.02(b)(1)(2). And the Penal Code provides that a person commits the offense of criminal
attempt “if, with specific intent to commit an offense, he does an act amounting to more than mere
6 preparation that tends but fails to effect the commission of the offense intended.” TEX.PENAL
CODE ANN. § 15.01(a). Because of the specific intent requirement for committing a criminal
attempt, the Court of Criminal Appeals has recognized that for attempted murder or attempted
capital murder, the State must prove that the defendant had the specific intent to kill his victims.3
See Flanagan v. State, 675 S.W.2d 734, 741 (Tex.Crim.App.1984) (op. on reh'g); see also Robbins
v. State, 145 S.W.3d 306, 309 (Tex.App.--El Paso 2004, pet. ref’d). Stated otherwise, a
conviction for attempted murder or attempted capital murder cannot be based on a defendant acting
with only an intent to cause serious bodily injury. If that were the case, the defendant’s only
offense would be aggravated assault. Flanagan, 675 S.W.2d at 741; Dovalina v. State, 564
S.W.2d 378, 386 (Tex.Crim.App. 1978) (en banc) (Odom, J., concurring) (if a defendant only
intended to cause his victim serious bodily injury, the offense is aggravated assault, not attempted
murder).
C. Analysis
Appellant contends that the State presented insufficient evidence to support an inference
that he had the specific intent to kill his two victims, and that, at most, the evidence only gives rise
to an inference that he intended to cause his victims serious bodily injury. In support of this
argument, Appellant contends that the State did not present any direct evidence of his intent to kill
his victims, such as a hostile pre-existing relationship, or that he made any statements during the
assaults indicating an intent to kill anyone. We note, however, that the State is not required to
produce direct evidence of a defendant’s culpable mental state in order to sustain a conviction.
3 As part of the attempted capital murder charge, as set forth in the indictment, the State was also required to prove that Appellant was engaged in a burglary at the time of the attempted murder. See TEX.PENAL CODE ANN. § 19.03(a)(2) (a person commits capital murder if he “intentionally commits the murder in the course of committing or attempting to commit . . . burglary . . . .”). On appeal, Appellant does not dispute that he was engaging in a burglary at the time that he assaulted his victims, and instead his sole focus is on whether the evidence was sufficient to allow a rational jury to conclude that he had the specific intent to kill his victims.
7 See Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002). Instead, the requisite culpable mental
state is almost always proved circumstantially. See Hernandez v. State, 819 S.W.2d 806, 810
(Tex.Crim.App. 1991) (en banc).
Further, in deciding whether a defendant had the requisite intent to kill a victim, the jury
may use its collective common sense and may apply common knowledge and experience.
Robbins, 145 S.W.3d at 309, citing Brown v. State, 122 S.W.3d 794, 800 (Tex.Crim.App. 2003).
A jury may infer intent from any facts that tend to prove its existence, including “the acts, words,
and conduct of the accused, and the method of committing the crime and from the nature of wounds
inflicted on the victims.” Hart, 89 S.W.3d at 64, quoting Manrique v. State, 994 S.W.2d 640, 649
(Tex.Crim.App. 1999) (en banc) (citations omitted); see also Guevara v. State, 152 S.W.3d 45, 50
(Tex.Crim.App. 2004). However, while the jury may consider statements made by the defendant
in order to infer his intent, there is no requirement that the defendant must have verbalized his
intent to kill his victim in order to support a finding that he harbored the requisite intent. See,
e.g., Graham v. State, No. 08-13-00115-CR, 2016 WL 1253460, at *4 (Tex.App.--El Paso
March 30, 2016, no pet.) (not designated for publication) (recognizing that there is no requirement
that the “specific intent to kill must be supported in every case by evidence that the defendant . . .
verbalized his intent to kill”).
Importantly, the jury may infer that the defendant had an intent to kill his victim from his
use of a deadly weapon, “unless in the manner of its use it is reasonably apparent that death or
serious bodily injury could not result.” Godsey v. State, 719 S.W.2d 578, 581 (Tex.Crim.App.
1986) (en banc); see also Cavazos v. State, 382 S.W.3d 377, 384 (Tex.Crim.App. 2012). In fact,
the Court of Criminal Appeals has recognized that “[i]f a deadly weapon is used in [a] deadly
8 manner, the inference is almost conclusive that he intended to kill.”4 Godsey, 719 S.W.2d at 581;
see also Morrison v. State, 480 S.W.3d 647, 665 (Tex.App.--El Paso 2015, no pet.) (recognizing
that “[e]vidence that a defendant has used a deadly weapon in this manner, overwhelmingly, if not
conclusively, establishes that the defendant is in fact guilty of murder”). Certain weapons, such
as firearms and other weapons manifestly designed, made or adapted for the purpose of inflicting
death or serious bodily injury, are considered deadly weapons per se, but the Penal Code also
provides that a deadly weapon can be anything that is “manifestly designed, made, or adapted for
the purpose of inflicting death or serious bodily injury; or . . . anything that in the manner of its
use or intended use is capable of causing death or serious bodily injury.”5 TEX.PENAL CODE ANN.
§ 1.07(a)(17); see also Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App. 1983) (discussing the
distinction between the two categories of deadly weapons). When determining whether a
particular object was used as a deadly weapon, we may consider both the acts of the defendant, as
well as the extent of the injuries suffered by the victim. See Lane v. State, 151 S.W.3d 188, 192
(Tex.Crim.App. 2004); Turner, 664 S.W.2d at 90.
1. The Attack on Vargas
We first consider whether Appellant used a deadly weapon when he stabbed Vargas with
a knife. Although a knife is not considered a deadly weapon per se, it can be considered a deadly
4 Appellant contends that the “use of a deadly weapon in and of itself will not support proof of a specific intent to murder,” citing to Brown v. State, 657 S.W.2d 143, 145 (Tex.Crim.App. 1983). Appellant is correct in the sense that a defendant’s use of a deadly weapon will only support an inference of an intent to kill if the defendant used the weapon in a deadly manner. Thus, in Brown, the Court held that it could not presume that a defendant had the intent to kill his victim based solely on the fact that he shot a gun into a home. However, the court noted that the defendant’s intent to kill his victim could be inferred, in part, from the fact that he knew or should have known that the victim was inside the house. Id. at 144-145. As such, the holding in Brown is consistent with the general principle that a jury may infer a specific intent to kill in situations in which the defendant used a weapon in a deadly manner. 5 In turn, section 1.07(a)(46) of the Penal Code provides that “‘serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” TEX.PENAL CODE ANN. § 1.07(a)(46).
9 weapon, depending on either its design or usage. See, e.g., Thomas v. State, 821 S.W.2d 616, 620
(Tex.Crim.App. 1991) (en banc); Iglesias v. State, 564 S.W.3d 461, 466 (Tex.App.--El Paso 2018,
no pet.). In the present case, witnesses observed Appellant take two or three swings at Vargas
with a knife, stabbing him twice, once in the back and once in the arm. Although the medical
records that were introduced into evidence indicated that the wound to Vargas’s back was
superficial, the knife hit a main artery in Vargas’s arm, which caused him significant blood loss
and required him to undergo surgery to graft a vein from his thigh into his arm. As well, Vargas
testified that because of the significant amount of blood that he lost before arriving at the hospital,
he has suffered lasting nerve damage to his arm that interferes with his daily functions.
Accordingly, given the manner in which Appellant used the knife to stab Vargas, combined with
the extent of his injuries, the jury could have rationally inferred that Appellant used the knife as a
deadly weapon during his attack on Vargas, and that he therefore had the specific intent to kill
Vargas. See, e.g., Ex parte Adams, 586 S.W.3d 1 (Tex.Crim.App. 2019) (recognizing that the
issue of whether defendant used a deadly weapon could not “rationally be in dispute” where
defendant swung a knife at his victim, witnesses observed him stab the victim, and the victim was
in fact stabbed).
2. The Attack on Ramirez
We next consider whether Appellant used his foot as a deadly weapon during his attack on
Ramirez. It is well-established that while a foot is not a deadly weapon per se, it can become a
deadly weapon if in the manner of its use it is capable of causing death or bodily injury. See, e.g.,
Powell v. State, 939 S.W.2d 713, 717 (Tex.App.--El Paso 1997, no pet.); see also Lane, 151
S.W.3d at 191. In this case, the record demonstrates that after Appellant punched Ramirez in his
face, knocking him unconscious, Appellant and his compatriots repeatedly used their feet to kick
10 and stomp on Ramirez’s head, and even used a vehicle parked nearby as leverage to add to the
impact as they kicked him. When police arrived, they found Ramirez in “agonizing pain,” and
photos of his face demonstrated that he had been severely beaten in the attack to the point that his
face was barely recognizable. The State also introduced evidence of Ramirez’s medical records
that showed he suffered a concussion, a contusion of his eyeball, an orbital fracture of his left eye
socket, a small left medial wall fracture, a hematoma, and a lacerated lip. Given the manner in
which Appellant used his feet to assault Ramirez, together with the extent of Ramirez’s injuries, a
rational jury could have inferred that Appellant used his feet as a deadly weapon during his attack
on Ramirez, and that he therefore had the specific intent to kill Ramirez. See, e.g., Powell, 939
S.W.2d at 718-19 (record supported an inference that defendant used his foot as a deadly weapon,
where he violently kicked his victim in the head with enough force to raise his head off the ground
and to cause a concussion); see also Roberson v. State, 144 S.W.3d 34, 38-40 (Tex.App--Fort
Worth 2004, pet. ref'd) (jury could have inferred that defendant had the specific intent to kill his
victim, where he knocked victim to the floor and stomped on the left side of victim’s head with
his foot, using a chair for leverage).
Despite the above, Appellant contends that the evidence was insufficient to support an
inference that he intended to kill either of his victims, because the State failed to introduce any
medical evidence to establish that the lives of either Vargas or Ramirez were ever in danger. We
note, however, that no such evidence is required to sustain a conviction for attempted murder. To
the contrary, “attempted murder does not require that the victim sustain a life-threatening injury,
but rather, that the actor intended to bring about the desired result.”6 Fulford v. State, No. 05-10-
6 In fact, the offense of attempted murder does not require the State to prove that the victim suffered any actual physical harm. The fact that a victim may have been able to successfully defend himself against a defendant’s attack does not negate an intent to kill, as it would be a “dismal day for victims [if a court] required actual harm to occur before a defendant’s murderous intent could be inferred.” Moreno v. State, 755 S.W.2d 866, 869-70 (Tex.Crim.App.
11 00820-CR, 2012 WL 752623, at *2-3 (Tex.App.--Dallas Mar. 8, 2012, no pet.) (not designated for
publication); see also Roberson, 144 S.W.3d at 39 (recognizing that the State is not required to
prove severe bodily injury as an element of attempted murder).
Accordingly, given the nature of Appellant’s attacks on his victims, and in particular, his
use of a deadly weapon during the course of those attacks, we conclude that a rational trier of fact
could have inferred that Appellant had the specific intent to kill both of his victims.
Appellant’s Issue Three is overruled.
V. CHARGE ERROR
In Issues One and Two, Appellant contends that the jury charge erroneously defined the
offense of attempted capital murder in a manner that would have allowed the jury to convict him
of attempted capital murder without finding that he had the specific intent to kill his victims, and
that he was egregiously harmed by the error.
When analyzing claimed error in a jury charge, we utilize a two-pronged test. Ngo v.
State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005) (en banc); Almanza v. State, 686 S.W.2d 157,
171 (Tex.Crim.App. 1984) (en banc). The first prong requires us to determine whether error
exists. Ngo, 175 S.W.3d at 743. If no error is found, then the analysis ends; however, if charge
error is found, the error is analyzed for harm. Almanza, 686 S.W.2d at 171.
The amount of harm necessary to warrant a reversal depends on whether the accused
objected to the jury charge, and thereby preserved the error. Ngo, 175 S.W.3d at 743; Almanza,
686 S.W.2d at 171; see also Neal v. State, 256 S.W.3d 264, 278 (Tex.Crim.App. 2008). If the
error was preserved by a timely objection, we review the record to determine if the error caused
1988) (en banc).
12 the accused “some harm.” Ngo, 175 S.W.3d at 743; Almanza, 686 S.W.2d at 171. However, if
no objection was lodged, as Appellant concedes here, we review the unpreserved jury-charge error
for egregious harm. Almanza, 686 S.W.2d at 171. Egregious harm is actual, rather than
theoretical harm, and must be of such a nature that it affected the very basis of the case, deprived
the accused of a fair and impartial trial, or otherwise vitally affected the accused’s defensive theory
at trial. See Villarreal v. State, 453 S.W.3d 429, 433 (Tex.Crim.App. 2015); Cosio v. State, 353
S.W.3d 766, 777 (Tex.Crim.App. 2011). “Egregious harm is a ‘high and difficult standard’ to
meet, and such a determination must be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d
at 433, quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex.Crim.App. 2013). In making an
egregious harm determination, we examine: (1) the entire charge; (2) the state of the evidence,
including contested issues and the weight of the evidence; (3) arguments of counsel; and (4) any
other relevant information revealed by the record of the trial as a whole. See Allen v. State, 253
S.W.3d 260, 264 (Tex.Crim.App. 2008).
1. Error in the Jury Charge
As explained above, although the offense of murder may be committed with either a
specific intent to kill or with the intent to cause an individual serious bodily injury, the offense of
attempted murder requires a specific intent to kill the victim. Accordingly, the jury may not
convict a defendant of attempted murder based solely on a finding that he had the intent to cause
serious bodily injury to his victim. Flanagan, 675 S.W.2d at 741; see also Robbins, 145 S.W.3d
at 309. Appellant points out that the abstract portion of the jury charge instructed the jury on both
definitions of murder as follows:
Our law provides that a person commits the offense of murder when he intentionally or knowingly causes the death of an individual; or if he intends to cause serious bodily injury and intentionally or knowingly commits an act clearly dangerous to
13 human life that causes the death of an individual during the same criminal transaction [emphasis added].
The charge then defined the offense of attempt as follows:
A person attempts to commit 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.
Appellant argues that when the instructions are read together, the jury was effectively
instructed that it could convict him of attempted capital murder if it found that he only harbored
an intent to cause his victims serious bodily injury. A proper jury charge, however, should only
define murder as requiring a specific intent to kill, thereby making it clear to the jury that it could
only convict him of attempted capital murder if it found that he had the requisite intent to kill his
victims.
The State does not contest this point, and we agree with Appellant that in an attempted
murder case, the jury charge should define murder using only the “specific intent to kill” definition,
and should not include any surplus reference to the alternative definition of murder in which a
defendant may commit the offense with only an intent to cause his victim serious bodily injury.
See White v. State, 642 S.W.2d 238, 240 (Tex.App.--Houston [14th Dist.] 1982, no pet.) (trial court
incorrectly included both definitions of murder in the jury charge in an attempted murder case).
However, because Appellant did not object to this portion of the jury charge, we next consider
whether Appellant suffered any egregious harm as the result of this error.
2. Egregious Harm Analysis
We first consider the jury charge as a whole in determining whether Appellant was
egregiously harmed by the error in the abstract or definitional portion of the jury charge. Allen,
253 S.W.3d at 264. The application part of the charge made it clear to the jury that it could only
14 convict Appellant of attempted capital murder if it found beyond a reasonable doubt that that he
had the intent to kill his victims:
If you find from the evidence beyond a reasonable doubt that on or about the 4th day of August, 2013 in El Paso County, Texas, [Appellant] did then and there, with the specific intent to commit the offense of capital murder, intentionally or knowingly while in the course of committing or attempting to commit the offense of burglary, attempt to cause the death of Joseph Vargas, an individual, by stabbing Joseph Vargas about the body with a deadly weapon, to-wit: a knife, said act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended and the said defendant, [Appellant], did then and there use or exhibit a deadly weapon, to-wit: a knife, that in the manner of its use or intended use was capable of causing death or serious bodily injury during the commission of or immediate flight from said felony offense [emphasis added].
If you find from the evidence beyond a reasonable doubt that on or about the 4th day of August, 2013 in El Paso County, Texas, [Appellant] did then and there, with the specific intent to commit the offense of capital murder, intentionally or knowingly while in the course of committing or attempting to commit the offense of burglary, attempt to cause the death of Michael Ramirez, an individual, by kicking Michael Ramirez about the head with a deadly weapon, to-wit: a foot, said act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended and the said defendant, [Appellant], did then and there use or exhibit a deadly weapon, to-wit: a foot, that in the manner of its use or intended use was capable of causing death or serious bodily injury during the commission of or immediate flight from said felony offense [emphasis added].
When, as here, the application portion of a jury charge correctly instructs the jury on the
required elements of the charged offense, any error in the abstract or definitional portion of the
charge is not considered egregious. See, e.g., Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App.
1999) (en banc); Patrick v. State, 906 S.W.2d 481, 493 (Tex.Crim.App. 1995) (en banc). This is
because the application paragraph of a jury charge, which is the “heart and soul” of the charge,
“explains to the jury, in concrete terms, how to apply the law to the facts of the case.” Whitington
v. State, No. 08-13-00102-CR, 2015 WL 3653326, at *8 (Tex.App.--El Paso Apr. 24, 2015, pet.
ref’d), citing Vasquez v. State, 389 S.W.3d 361, 367 (Tex.Crim.App. 2012); Yzaguirre v. State,
394 S.W.3d 526, 530 (Tex.Crim.App. 2013); In re I.L., 389 S.W.3d 445, 453-4 (Tex.App.--El Paso
15 2012, no pet.) (finding that error in the abstract portion of the jury charge incorrectly defining the
requisite mental state did not cause egregious harm where the application paragraph correctly
pointed the jury to the correct mental state required). In other words, it is “the application
paragraph of the charge, not the abstract portion, that authorizes a conviction.” Whitington, 2015
WL 3653326, at *8.
At least two of our sister courts have recognized, even if the abstract portion of a jury
charge in an attempted murder case incorrectly includes the definitions of both forms of murder,
i.e., specific intent murder and murder with the intent to cause serious bodily injury, any such error
is cured by an appropriate application paragraph instructing the jury that it may only convict the
defendant if it finds that he had the requisite intent to kill his victim. See Kolar v. State, 705
S.W.2d 794, 798 (Tex.App.--Houston [1st Dist.] 1986, no pet.); White, 642 S.W.2d at 240-42.
Accordingly, we conclude that any error in the abstract portion of the jury charge in Appellant’s
case was cured by the application portion of the charge, which made it clear to the jury that it could
only convict him of attempted capital murder if it found that he had the intent to kill his victims.
Although our analysis may stop here, we note that two of the other harm factors--the state
of the evidence and the arguments of counsel--also cut against egregious harm. First, the record
contains ample evidence from which the jury could have inferred that Appellant acted with an
intent to kill his victims. As set forth above, the evidence demonstrated that Appellant engaged
in a protracted attack on both Ramirez and Vargas, using deadly weapons in both instances, and
that Appellant only stopped his attack when he was informed that the police were on their way.
See, e.g., Kolar, 705 S.W.2d at 794 (evidence of defendant’s use of a deadly weapon, which
allowed the jury to infer his intent to kill, was a factor in determining that any error in the jury
16 charge defining the requisite intent necessary to convict the defendant of attempted murder did not
cause the defendant egregious harm).
In addition, although the prosecutor admittedly referred to both definitions of murder
during voir dire and during her closing argument, she nevertheless emphasized throughout both
phases of trial that the offense of murder, and the offense of attempted murder in particular,
requires an “intent to kill.” 7 In addition, throughout her closing argument, the prosecutor
repeatedly pointed out to the jury that the evidence established that Appellant had attacked his
victims in such a manner that there could be no doubt that he harbored the intent to kill them.
Based on the above, we conclude that Appellant was not egregiously harmed by any error in the
jury charge.
Appellant’s Issues One and Two are overruled.
VI. CONCLUSION
Finding sufficient evidence to support Appellant’s conviction and finding no egregious
error in the jury charge, the trial court’s judgment is affirmed.
JEFF ALLEY, Chief Justice December 30, 2019
Before Alley, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
7 Appellant’s attorney did not focus on the issue of Appellant’s intent, and instead, primarily argued that the evidence was insufficient to place Appellant at the scene of the crime, noting that he had alibi witnesses who testified that he was at a party the night of the offense, and that there was insufficient evidence to support an inference that he had actually entered Vargas’s residence at the time the assaults took place, thereby suggesting that no burglary took place.