Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-16-00144-CR
Anthony Lee SMITH, Appellant
v.
The STATE of Texas, Appellee
From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR10000 Honorable Jefferson Moore, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: July 19, 2017
AFFIRMED
After finding Appellant Anthony Lee Smith guilty of Daniel Cantu’s murder, the jury
assessed punishment at life imprisonment in the Institutional Division of the Texas Department of
Criminal Justice. On appeal, Anthony1 contends the trial court erred in (1) denying the motion to
suppress his custodial statement; (2) admitting evidence for which the State failed to prove a proper
1 Because Appellant Anthony Smith shares the same surname with many of the witnesses, the appellant and many of the witnesses are referred to by their first names for purposes of this opinion. 04-16-00144-CR
chain of custody; and (3) improperly including an instruction on the law of parties. We affirm the
trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Investigation Leading to Anthony’s Arrest
On the morning of July 28, 2013, San Antonio Police officers responded to a 911 call for
a deceased individual near the community mailboxes at the Banyan Tree apartments. With the
exception of a single bullet wound, the deceased did not appear to have additional injuries.
Attached to the individual’s belt was a chain, described as the type commonly attached to a “biker
wallet.” The officers also found broken chain links located near the body. The wallet was never
recovered. Absent other identification, the officers originally identified the deceased, Daniel
Cantu, by a “gym tag membership” on Cantu’s keyring.
Officers canvassed the area and located two individuals who saw Cantu’s body earlier that
morning, but mistakenly believed he was “passed out and drunk.” Both individuals were excluded
as suspects. The medical examiner’s autopsy determined Cantu was shot once through his torso,
with either a .38 or a .357 handgun.
On August 13, 2013, San Antonio Police Sergeant Ricky Lopez contacted Crime Stoppers’
tipster Jean Smith, Anthony’s maternal aunt. Jean provided a written statement that, the day after
the murder, Anthony confessed to shooting Cantu. Jean’s written statement included unreleased,
detailed information about the murder, including: the type of firearm used, the proximity of the
gunshot wound, and the approximate amount of money stolen from Cantu. Shortly thereafter,
officers interviewed Lynell Simmons, another maternal aunt with whom Anthony was living at the
time of the murder. Lynell also provided a written statement to officers implicating Anthony in
the murder.
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The following day, on August 14, 2013, a Bexar County Sheriff’s Deputy arrested Anthony
for possession of marijuana charges; prior to being booked on the marijuana charges, the deputy
transported Anthony to the San Antonio Police Department and released Anthony into the police
department’s custody. After interviewing Anthony, Sergeant Lopez obtained a warrant and
arrested Anthony for Daniel Cantu’s murder.
B. Testimony before the Trial Court
An indictment was returned on November 7, 2013, and Anthony’s jury trial began on
March 7, 2016. The State’s case-in-chief, presented over a three-day period, included testimony
from eighteen witnesses, several of which the trial court declared adverse to the State.
During Jean’s testimony, she acknowledged calling Crime Stoppers and providing a
statement to officers, but denied many of the assertions contained in her sworn statement. She
contended that the statement included “a lot of stuff in here I probably said but I don’t remember
saying.” Jean testified that when she asked Anthony, “did he do it. He said yes.” The following
day, Jean called the Crime Stoppers’ hotline. During her testimony, Jean acknowledged receiving
$5,000.00 for her call, but was adamant that she did not report Anthony for the money or in
retaliation for a statement that Anthony provided in an unrelated murder conviction of her son
Rafael. Jean denied telling officers the type of weapon used, where Cantu was shot, that Anthony
took Cantu’s money, or implicating her nephew, Gary Smith, in the murder. “I was doing it
because I love my nephew [Anthony] and I’d rather see him in jail than to see him dead on the
street.” As for her sister, Lynell Simmons, Jean described her as “evil” and “dishonest.”
When the State called Lynell as a witness, she also disavowed her written statement; Lynell
testified that she could not read or write, in direct contradiction to the officer’s testimony who took
her statement. Once again, through impeachment, the State elicited testimony that when Lynell
questioned Anthony about the murder, Anthony replied, “[H]e wasn’t worried about it. ‘Auntie, -3- 04-16-00144-CR
they don’t have a description. They think it was a Mexican that killed a Mexican.’” Also contrary
to her written statement, Lynell denied telling officers that Anthony told her that he shot Cantu in
the heart, that he robbed him, or that he only “got 100 bucks off of him.” Lynell “did not recall”
telling officers that she knew Anthony was lying when he told her that Cantu had a knife. She
acknowledged making Anthony leave her house, but denied telling Anthony that he could not stay
there “because of what he did” or knowing that Anthony owned a .38 handgun. Lynell further
acknowledged speaking to the officers out of concern that her son, Gary, would be implicated in
the murder. Lynell described her sister Jean as “a liar” and a “money-hungry person.”
Anthony’s cousin, Tatjana Smith, testified that Anthony was with her, Gary, and a third
cousin, Tirion, the evening before the murder. Anthony left the apartment well before Gary and
Tirion, both of whom ultimately decided to “go to the club.” Tatjana was babysitting Tirion’s
children when, in the early morning hours, Anthony came back to the apartment. Tatjana testified
that she did not let Anthony into the apartment because Tirion was not home.
Darryl King testified that in October of 2013, he was in the Bexar County Jail on a parole
violation and housed in the same unit as Anthony. King was also hostile to the State resulting in
the trial court declaring King an adverse witness. King described Anthony as “talking” about the
murder to different people on many occasions—“that’s what they do in jail.” More specifically,
Anthony said he “killed the white guy” by the mailboxes and that his relatives “snitched” on him.
King provided a possible motive when Anthony told him the man “disrespected him at the flea
market.” Anthony further described that, after shooting Cantu, he ran from the Banyan Tree
apartments to the parking lot behind an industrial building with “stoves.” Anthony said there was
a pipe sticking out of the ground.
The State also called several officers and forensic analysts. Sergeant Lopez presented the
clothing Cantu was wearing at the time of his death, specifically his jeans, shirt, belt, and belt -4- 04-16-00144-CR
buckle. Sergeant Lopez testified the medical examiner’s office removed Cantu’s clothing during
the autopsy; after completing her examination and marking each object with a unique identification
number, the medical examiner released Cantu’s clothing to Sergeant Lopez’s office for further
testing. The packaging, which Sergeant Lopez unsealed in the courtroom, was marked with the
unique identification number, initials, and dates on several different locations. Sergeant Lopez
testified, and the trial court agreed, the belt buckle and the black shirt, including a small hole, were
unique and identifiable in the pictures previously admitted and taken at the crime scene.
During the autopsy, a sample of Cantu’s blood was also marked with the same unique
identification number. On August 28, 2013, pursuant to a search warrant, Sergeant Lopez
collected DNA samples from Anthony. All of Anthony’s DNA samples were marked with the
unique identifier, initials, and dates. Forensic scientist Jamie Pomykal, with the Bexar County
Crime Lab, conducted two different DNA analyses on a sample of material removed from the front
hip pocket of Cantu’s jeans. Pomykal identified her initials and dates on the packages; she also
noted the unique identification number assigned by the Bexar County Medical Examiner’s Office.
Pomykal testified, “Anthony Smith was not excluded as a contributor to the DNA profile that I
obtained on the swab from the pockets.” Pomykal was asked to quantify the likelihood of the
DNA sample not belonging to Anthony Smith. Pomykal’s testimony and report, which was
admitted at trial, indicated that she would expect to see the particular sample, in the given
populations:
African American: 1 in 21,610,000,000,000,000,000,000 Caucasian: 1 in 11,650,000,000,000,000,000,000,000 Hispanic: 1 in 28,220,000,000,000,000,000,000,000
At the conclusion of the testimony, the trial court presented the court’s proposed jury
charge. Defense counsel objected to the inclusion of the instruction on the law of parties. “[A]ll
of their witnesses testified that [Anthony] was the shooter. There [weren’t] any witnesses that -5- 04-16-00144-CR
testified that [Anthony] had participated in the murder in any way other than that.” The trial court
overruled the objection explaining that because the testimony included “conflicting evidence”
whether Gary Smith was also present at the time of the murder, the instruction on the law of parties
was properly included in the court’s charge.
The jury subsequently found Appellant Anthony Smith guilty of Daniel Cantu’s murder
and, following a punishment hearing, assessed punishment at life imprisonment in the Institutional
Division of the Texas Department of Criminal Justice. This appeal ensued.
MOTION TO SUPPRESS
A. Standard of Review
An appellate court reviews a trial court’s ruling on a motion to suppress on a bifurcated
standard of review; a reviewing court must
give almost total deference to the trial court’s rulings on (1) questions of historical fact, even if the trial court’s determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. But when application-of- law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court’s rulings on those questions de novo.
Wilson v. State, 442 S.W.3d 779, 783 (Tex. App.—Fort Worth 2014, pet. ref’d) (citing Amador v.
State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)); see also Valtierra v. State, 310 S.W.3d 442,
447 (Tex. Crim. App. 2010); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).
This court must “uphold the trial court’s ruling on appellant’s motion to suppress if that ruling was
supported by the record and was correct under any theory of law applicable to the case.”
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (citing State v. Ross, 32 S.W.3d
853, 856 (Tex. Crim. App. 2000). We will reverse the trial court’s suppression decision if it is
unsupported by the record, “arbitrary, unreasonable, or ‘outside the zone of reasonable
disagreement.’” State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
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In the present case, Anthony did not request express findings of fact and conclusions of
law.
[W]hen the trial court makes no explicit fact findings and neither party has timely requested findings and conclusions from the trial court[,] . . . the appellate court implies the necessary fact findings that would support the trial court’s ruling if the evidence (viewed in the light most favorable to the trial court’s ruling) supports these implied fact findings.
State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006); see also State v. Cullen, 195 S.W.3d
696, 698 (Tex. Crim. App. 2006) (holding that, in the context of a motion to suppress ruling, even
though the trial court had no obligation to make findings of fact or conclusions of law, nevertheless
the trial court must do so when timely requested by the losing party).
B. Argument of the Parties
Anthony contends the trial court erred, in denying the motion to suppress, on two grounds:
(1) when Anthony was questioned about Cantu’s murder, he was not under arrest for the murder;
therefore, when the reason for his arrest ended (i.e. the officer decided the marijuana case would
be charged at large), Anthony should have been released and his statement suppressed; and (2)
Anthony attempted to invoke his right to counsel on three different occasions during the recorded
statement.
The State counters Anthony was lawfully in custody, and properly Mirandized; Anthony
waived his rights and elected to speak to Sergeant Lopez when the statement was taken.
C. Custody
Anthony concedes he was lawfully arrested by the Bexar County Sheriff’s Office deputy
for the possession of marijuana. He argues that because the deputy never intended to book him
into jail for the possession charge, his detention and transfer of custody to Sergeant Lopez and the
San Antonio Police Department was illegal. We disagree.
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In Devenpeck v. Alford, 543 U.S. 146, 153 (2004), the Supreme Court explained that, if
probable cause was present for the arrest, the officer’s subjective intent was irrelevant.
[The officer’s] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.
Id. (internal quotations omitted). In the present case, the probable cause supporting the deputy’s
arrest of Anthony for the possession of marijuana charge is uncontested. Anthony’s concession
supports that the totality of the circumstances allowed a reasonable officer to conclude that
Anthony was engaged in criminal activity. See Parker v. State, 206 S.W.3d 593, 599 (Tex. Crim.
App. 2006). Whether the deputy decided to arrest Anthony because of the outstanding request by
the San Antonio Police Department is irrelevant. See State v. Rascbaum, No. PD-1221-05, 2007
WL 1706035, at *2 (Tex. Crim. App. June 13, 2007) (per curiam) (not designated for publication)
(explaining that because defendant acknowledged initial traffic stop was valid, he conceded that
he committed a traffic offense; because officers were authorized to arrest defendant for the traffic
violation, whether officer’s subjective intent was to arrest for driving while intoxicated is
irrelevant).
We conclude Anthony was properly in custody for the possession of marijuana offense
when questioned by Sergeant Lopez and overrule Anthony’s arguments contending the interview
was the result of an unlawful detention.
D. Invocation of Right to Counsel
Anthony was in custody and not free to leave when he was interviewed by Sergeant Lopez.
The interview constituted a custodial interrogation and prior to any questioning by officers, the
Fifth Amendment required Anthony to be apprised of specific warnings regarding his right to
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consult with an attorney and to have counsel present during custodial interrogation. See Miranda
v. Arizona, 384 U.S. 436, 444 (1966) (“[C]ustodial interrogation . . . mean[s] questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.”); TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)
(West Supp. 2014) (requiring warnings only when interrogation is custodial); see also Herrera v.
State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (explaining Miranda warnings “safeguard an
uncounseled individual’s constitutional privilege against self-incrimination during custodial
interrogation”).
When a suspect asserts his right to counsel, all interrogation must cease until counsel is
provided or until the suspect personally reinitiates the conversation. Edwards v. Arizona, 451 U.S.
477, 484–85 (1981); Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). The right to
counsel is invoked when a person indicates that he desires to speak to an attorney or to have an
attorney present during questioning. Dinkins, 894 S.W.2d at 351. “An invocation must be clear
and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer’ without more, does not
automatically invoke the right to counsel.” Id.; see also Davis v. United States, 512 U.S. 452, 462
(1994) (holding “Maybe I should talk to a lawyer,” was not a request for an attorney); Davis v.
State, 313 S.W.3d 317, 341 (Tex. Crim. App. 2010) (concluding “I should have an attorney,” was
not a request or an express statement that the suspect wanted an attorney). To sufficiently invoke
the right to counsel, the suspect “must articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances would understand the statement to be
a request for an attorney.” Davis, 512 U.S. at 459; see also Pecina v. State, 361 S.W.3d 68, 79
(Tex. Crim. App. 2012).
When reviewing alleged invocations of the right to counsel, we look at the totality of the
circumstances surrounding the interrogation, as well as the alleged invocation, to determine -9- 04-16-00144-CR
whether a suspect’s statement can be construed as an actual invocation of his right to counsel.
Dinkins, 894 S.W.2d at 351; Castillo v. State, 742 S.W.2d 1, 4 (Tex. Crim. App. 1987). “The test
is objective: whether the suspect articulate[d] his desire to have counsel present sufficiently clearly
that a reasonable police officer in the circumstances would understand the statement to be a request
for an attorney.” Davis, 313 S.W.3d at 339. If a defendant clearly invokes his right to counsel, all
interrogation by the police must cease until counsel is provided or until the suspect initiates further
conversation. Davis, 512 U.S. at 458; State v. Gobert, 275 S.W.3d 888, 892–93 (Tex. Crim. App.
2009).
Anthony argues that, on two different occasions during the interview, he clearly invoked
his right to counsel and Sergeant Lopez was required to cease any questioning. The record reflects
that about half-way through the interview, Anthony told Sergeant Lopez, “I don’t got no attorney
present.” The interview continued.
Towards the end of the interview, Anthony stated, “I’d rather talk to you with my court-
appointed.” Sergeant Lopez stopped all questions and explained, “because you said that, ‘cause
you . . . you just told me that, I gotta stop. . . . If you change your mind and you wanna talk about
it, I gotta read you your rights again and we gotta start all over. But that’ll be up to you.” Sergeant
Lopez informed Anthony that he was free to use the phone and then left the room.
After some time, Sergeant Lopez returned to the room and Anthony asked where the
officers were taking him. Sergeant Lopez explained that he could not talk about the case with
Anthony without reading his rights again. Anthony told the officer that he wanted to talk to him.
Sergeant Lopez again recited each of the Miranda warnings to Anthony. Anthony affirmatively
stated that he understood his rights and that he wanted to talk with the officer. Anthony continued
to waffle on whether he wanted to discuss Cantu’s murder. Sergeant Lopez explained that if
Anthony did not want to talk about it, he was going to leave. Anthony replied, “I just don’t know - 10 - 04-16-00144-CR
where I’m gonna go if I sit here and talk to you, man.” At that point, Sergeant Lopez stopped the
interview.
Although Anthony mentioned the word “attorney” and “court appointed,” neither of these
statements were unambiguous invocations of his right to counsel. Simply mentioning a lawyer, or
making comments about a lawyer, does not reach the unambiguous invocation required in Davis,
512 U.S. at 458, and its progeny.
Based on a totality of the circumstances surrounding the interview, and considering the
evidence in the light most favorable to the fact finder’s conclusions, we cannot conclude a
reasonable officer would have understood Anthony’s statement as a Fifth Amendment invocation
of his right to counsel. See id.; Davis, 313 S.W.3d at 339.
Accordingly, we overrule Anthony’s appellate issue regarding any violation of his right to
counsel.
ADMISSION OF EVIDENCE
A. Argument of Parties
In his third issue, Smith contends the State failed to prove a proper chain of custody and
the trial court erred in admitting Cantu’s clothes and the testimony regarding the DNA tests.
B. Standard of review
We review a trial court’s decision to admit or exclude evidence under an abuse of discretion
standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Weatherred v. State,
15 S.W.3d 540, 543 (Tex. Crim. App. 2000); Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—
Austin 2013, no pet.). A trial court abuses its discretion if it acts arbitrarily or unreasonably,
without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380
(Tex. Crim. App. 1991) (op. on reh’g); accord Thompson v. State, 274 S.W.3d 776, 778 (Tex.
App.—San Antonio 2008, no pet.). When considering a trial court’s decision to admit or exclude - 11 - 04-16-00144-CR
evidence, we will not reverse the ruling unless it falls outside the “zone of reasonable
disagreement.” McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007); see also Jessop v.
State, 368 S.W.3d 653, 686 (Tex. App.—Austin 2012, no pet.).
Proof of chain of custody authenticates evidence under rule of evidence 901(a). See TEX.
R. EVID. 901(a); Druery v. State, 225 S.W.3d 491, 503 & n.30 (Tex. Crim. App. 2007). Upon a
showing of authenticity, an appellate court affords the trial court great discretion in admitting the
evidence at trial. Druery, 225 S.W.3d at 503; accord Butler v. State, 459 S.W.3d 595, 600 (Tex.
Crim. App. 2015) (holding appellate courts apply liberal standard ensuring trial court’s
determination is within the zone of reasonable disagreement). Generally, the State satisfies chain
of custody when evidence establishes where the chain begins and ends, especially if it ends in a
laboratory. Mitchell v. State, 419 S.W.3d 655, 659 (Tex. App.—San Antonio 2013, pet. ref’d).
Evidence of fraud or tampering relating to the gaps in the chain of custody affect the weight given
to, not admissibility of, the evidence. See id. at 660; Dominguez v. State, 441 S.W.3d 652, 660
(Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Lagrone v. State, 942 S.W.2d 602, 617
(Tex. Crim. App. 1997)). “The chain of custody is conclusively proven if the officer is able to
identify that he or she seized the item of physical evidence, put an identification mark on it, placed
it in the property room, and then retrieved the item being offered on the day of trial.” Hartsfield
v. State, 200 S.W.3d 813, 818 (Tex. App.—Texarkana 2006, pet. ref’d).
“Any gaps in the chain of custody go to the weight of the evidence, not admissibility;
however, proof should be shown as to the beginning and end of the chain.” Id. It is within the
jury’s purview “to determine whether an item of evidence is indeed what its proponent claims; the
trial court need only make the preliminary determination that the proponent of the item has
supplied facts sufficient to support a reasonable jury determination that the proffered evidence is
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authentic.” Butler, 459 S.W.3d at 600 (citing Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim.
App. 2012).
C. Analysis
We note Anthony’s complaint is based on alleged gaps in the chain of custody; he does not
assert any alleged tampering of the evidence. Anthony also concedes Cantu’s shirt was distinct,
but contends the jeans and belt were not.
Sergeant Lopez and the medical examiner identified the jeans, belt, belt buckle, and shirt
as belonging to Cantu. The medical examiner testified that Cantu arrived at the morgue fully
clothed. She removed the clothes and marked them with a unique identification number.
Similarly, Sergeant Lopez collected Anthony’s DNA pursuant to a valid search warrant.
The buccal swabs were marked with the unique identification number, initials, and date. Like the
portion of the jean pocket from which the DNA was obtained, the forensic scientist testified that
she verified all of the tested samples were marked with the same unique identifier. The DNA
testing occurred on two different occasions; on each occasion, the forensic scientist verified the
unique markings prior to testing. After completing the tests, the forensic scientist resealed the
package, and proceeded to mark the packaging with her initials and the date.
At trial, Sergeant Lopez confirmed the numbers on the outside of the packaging matched
the unique identification number. Although the blood sample packages remained sealed, Sergeant
Lopez opened the exhibits containing the clothing in the courtroom and visually confirmed the
contents. The State offered the packaging, including the unique markings. The trial court found
the clothing, specifically the belt buckle, possessed fairly unique and readily identifiable
characteristics. On the record, the trial court compared the belt buckle in evidence with the belt
buckle depicted in the crime scene photographs. The State presented evidence of the beginning,
the middle, and the end of the chain. See Mitchell, 419 S.W.3d at 659–60. We cannot conclude - 13 - 04-16-00144-CR
the trial court’s findings were arbitrary or unreasonable. See Montgomery, 810 S.W.2d at 380;
Thompson, 274 S.W.3d at 778. Thus, the trial court did not abuse its discretion in denying the
motion to suppress based on Anthony’s chain of custody complaints. See Rodriguez, 203 S.W.3d
at 841.
We overrule Anthony’s chain of custody issues on appeal.
JURY INSTRUCTION
Smith argues that because there is no evidence as to Gary’s involvement in the shooting,
the trial court erred by charging the jury under the law of parties.
Appellate courts review potential jury charge errors in a two-step process. See Hines v.
State, 383 S.W.3d 615, 626 (Tex. App.—San Antonio 2012, pet. ref’d) (citing Kirsch v. State, 357
S.W.3d 645, 649 (Tex. Crim. App. 2012)). The appellate court must first determine whether the
charge is erroneous. Kirsch, 357 S.W.3d at 649. If error exists, the court analyzes the level of
harm incurred by the defendant; the level of harm is contingent on whether the error was preserved.
Id.
Here, because error was preserved, Anthony need only show he suffered “some harm” to
prevail on appeal. See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (citing
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g), superseded on
other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App.
1988); see also Rivas v. State, 486 S.W.3d 640, 649–50 (Tex. App.—San Antonio 2016, pet. ref’d).
For harm to result, however, the record must show “‘actual, rather than merely theoretical, harm.’”
Segovia v. State, 467 S.W.3d 545, 556 (Tex. App.—San Antonio 2015, pet. ref’d) (quoting Reeves,
420 S.W.3d at 816). “Neither the State nor the defendant has a burden to prove harm.” Reeves, - 14 - 04-16-00144-CR
420 S.W.3d at 816. To determine “some harm,” the appellate court evaluates “(1) the jury charge
as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant
factors present in the record.” Id. (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.
2013)); see also Segovia, 467 S.W.3d at 556.
Assuming, without deciding, that the inclusion of the instruction on the law of parties was
erroneous, we find the error, if any, was harmless. See Cathey v. State, 992 S.W.2d 460, 466 (Tex.
Crim. App. 1999); see also Gilmore v. State, 397 S.W.3d 226, 244 (Tex. App.—Fort Worth 2012,
pet. ref’d). In general, an instruction on the law of parties may be given to the jury whenever there
is sufficient evidence to support a jury verdict that the defendant is criminally responsible under
the law of parties. See TEX. PENAL CODE ANN. § 7.01 (West 2011) (providing a person may be
charged in an offense committed by his conduct, if he acted as a principal, or that of someone else,
if the party acted as an accomplice); Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999);
accord Gilmore, 397 S.W.3d at 244. However, “[e]ven where proper objection is made at trial,
. . . [if] the evidence clearly supports a defendant’s guilt as the primary actor, error in charging on
the law of parties [is] harmless.” Cathey, 992 S.W.2d at 466; accord Ladd, 3 S.W.3d at 564–65.
Neither defense counsel nor the State concentrated on Gary as the shooter; Gary was simply
offered to create reasonable doubt as to Anthony being the shooter. Several witnesses testified
that Anthony confessed to the shooting and provided details only someone present during the
offense would know. Additionally, the DNA evidence strongly supports Anthony’s presence at
the crime scene.
Anthony contends, and we agree, there was no evidence tending to show his guilt as a
party. We, thus, conclude the jury likely did not rely on the law of parties’ instruction in arriving
at its verdict. The record does not support the trial court’s decision to include the instruction on - 15 - 04-16-00144-CR
the law of parties was calculated to injure Anthony’s rights or that Anthony suffered even “some
harm” as a result of the instruction. See Reeves, 420 S.W.3d at 816; Almanza, 686 S.W.2d at 171.
Accordingly, we overrule Anthony’s final issue on appeal.
CONCLUSION
Having overruled each of Appellant Anthony Smith’s issues on appeal, we affirm the trial
court’s judgment.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
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