Opinion filed August 20, 2026
In The
Eleventh Court of Appeals
__________
No. 11-24-00256-CR
__________
ARMANDO BARBA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court Midland County, Texas
Trial Court Cause No. CR56869
MEMORANDUM OPINION
Appellant, Armando Barba, entered open pleas of guilty to the offenses of failure to stop and render aid in an accident that resulted in death, a second-degree felony, and tampering with physical evidence, a third-degree felony. See TEX. TRANSP. CODE ANN. § 550.021(c)(1)(A) (West Supp. 2025); TEX. PENAL CODE ANN. § 37.09(a)(1), (c) (West Supp. 2025). On the conviction for failure to stop and render aid, the jury assessed Appellant’s punishment at confinement for fifteen years in the
Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. For the conviction of tampering with physical evidence, the jury assessed his punishment at confinement for ten years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. Notably, the jury rejected Appellant’s request for community supervision and declined to recommend that the judge suspend the imposition of his sentences. In a single issue on appeal, Appellant contends that he was egregiously harmed by the trial court’s failure to adequately instruct the jury that the trial court would set the applicable conditions for community supervision. We affirm.
Background Facts
At approximately midnight on June 6, 2021, Appellant was driving a Mercury Grand Marquis in an area where bars are located in Midland. Two of his friends, Jorge Alvarez and Israel Diaz Ornelas, were with him in the car. Appellant struck and killed a pedestrian, Theron Brown, with the front driver’s side of his car. A bystander witnessed Appellant’s car driving away after the impact with Brown. She testified that Appellant’s car did not appear to slow down after striking Brown. Officers that responded did not find any brake marks or skid marks in the area of impact.
Alvarez testified that he was riding in the passenger seat of Appellant’s car at the time of impact. Alvarez stated that he heard “a thump” and that he looked up and saw that the windshield was broken. When Alvarez asked Appellant what happened, Appellant replied that “he didn’t see what it was.” Alvarez testified that Appellant kept driving without slowing down. At some point, Appellant pulled over to work on the car’s headlights. Ornelas, who was riding in the backseat, made the same observation of hearing “a thud,” and no one knowing what caused the sound. Ornelas testified that he and Alvarez asked Appellant to pull over but that Appellant
3
did not. Ornelas estimated that Appellant did not stop until six or seven minutes later.
The police were able to determine the make and model of the car from pieces of it that were left at the scene. Through their investigation, the police were able to determine that Appellant’s car was the vehicle that struck Brown. When officers made contact with Appellant, he had already replaced the windshield and hood on the car. Alvarez and Ornelas testified that they assisted Appellant in repairing the car. In that regard, Appellant was unable to buy salvage car parts because he did not have a valid driver’s license. The police were able to recover Appellant’s damaged windshield and hood as a part of their investigation.
Alvarez detailed the activities of Appellant, Ornelas, and himself on the night of the incident. Alvarez testified that the group was “just hanging out” and drinking. The trio traveled to an HEB in Midland to purchase alcohol. In Appellant’s car, the police found a receipt for the purchase of alcohol from HEB at 10:18 p.m. on June 5, 2021. At the time of the accident, the trio was driving down Industrial Avenue heading to a bar called “Woody’s Hideaway.”
Analysis
In his sole issue on appeal, Appellant contends that the trial court’s charge erroneously omitted an instruction informing the jury that the trial court sets the conditions of community supervision. Additionally, Appellant contends that the trial court should have instructed the jury on the purposes of community supervision. Appellant acknowledges that he did not object to either of these alleged omissions in the trial court’s charge. He contends that he was egregiously harmed because these omissions caused the jury to decline to recommend community supervision.
The trial court is required to give the jury a written charge “setting forth the law applicable to the case.” TEX. CRIM. PROC. ANN. art. 36.14 (West 2007); Vega v. State, 394 S.W.3d 514, 518 (Tex. Crim. App. 2013). A review of alleged jury-charge
4
error involves a two-step analysis. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994). We must first determine whether the charge contained any actual error. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d at 731–32. If there was actual error, we must next determine whether the error resulted in sufficient harm to require reversal. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d at 731–32. If an appellant fails to object to or present a properly requested charge, any error in the charge “should be reviewed only for ‘egregious harm’ under Almanza.” Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
The trial court’s charge in this case instructed the jury as follows:
In this case, the Defendant has filed, before trial, a sworn motion in which the Defendant prays that in the event he is convicted that he be granted community supervision. If the punishment assessed by you as to each count is not more than ten years confinement in prison and you further find that the Defendant has never before been convicted of a felony in this State or any other State, you may recommend that the penitentiary time you assess the Defendant be suspended and that the Defendant be placed on community supervision, and if you assess a fine, you may recommend whether the fine be paid or suspended.
If the jury recommends in their verdict that the confinement in prison assessed be suspended, the Court must suspend imposition of the sentence and place the Defendant on community supervision for any term of years NOT LESS THAN TWO YEARS OR MORE THAN TEN YEARS. If the jury does not wish to suspend the imposition of the sentence and grant the Defendant community supervision, you will say nothing about suspending the imposition of sentence or community supervision in your verdict.
As previously noted, Appellant did not object to the trial court’s charge as given or request any additional instructions with respect to the matters asserted on appeal.
Relying upon a suggested charge contained in a legal treatise, Appellant contends that the trial court’s charge should have instructed the jury that the trial
5
court determines the conditions of community supervision and may alter or modify them as needed.1 Additionally, Appellant contends that the trial court’s charge should have instructed the jury that the trial court “may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the Defendant.”
We first note that pattern jury charges are advisory and not binding on the courts. Cochran v. State, 692 S.W.3d 891, 896 (Tex. App.—Dallas 2024, no pet.) (collecting cases). Appellant has not cited any provision of either the Texas Penal Code or the Texas Code of Criminal Procedure that requires the particular instructions that he contends were erroneously omitted. In the absence of authority otherwise, we conclude that the instructions that Appellant identifies on appeal were not required in addition to the instructions given by the trial court in this case in order for the jury to have properly considered Appellant’s request for community supervision. Accordingly, we conclude that the trial court’s charge was not erroneous.
Even assuming arguendo that the omission of the instructions constituted error, we conclude that Appellant was not egregiously harmed. “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.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). “Egregious harm is a ‘high and difficult standard’ to meet, and such a determination must be ‘borne out by the trial record.’” Id. (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). “An egregious harm determination must be based on a finding of actual rather than
1 Appellant bases his appellate contentions on Elizabeth Berry & George Gallagher, TEXAS CRIMINAL JURY CHARGES § 4:405 Punishment Charge-Plea of Guilty (Probation Eligible) (James Publishing 2023).
6
theoretical harm.” Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)).
Egregious harm is only shown when the error “created such harm that [the appellant] ‘has not had a fair and impartial trial.’” Almanza, 686 S.W.2d at 171. In Almanza, the Texas Court of Criminal Appeals outlined four factors that a reviewing court should consider when determining whether charge error resulted in egregious harm: (1) the charge itself; (2) the state of the evidence, including contested issues and the weight of the probative evidence; (3) the arguments of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. See Villarreal, 453 S.W.3d at 433.
First, we analyze the erroneous instruction in relation to the charge as a whole.
Id.; Almanza, 686 S.W.2d at 171. Here, Appellant does not assert that the trial court misstated the law in the charge. Instead, Appellant contends that the charge omitted instructions that would have assisted the jury. We note that the trial court instructed the jury in the charge that the trial court would be the entity that would “place” Appellant on community supervision if the jury recommended it. Thus, the instruction in the trial court’s charge apprised the jury of the trial court’s role in the community supervision process. As such, the charge given by the trial court does not support a determination of egregious harm.
Second, we examine the state of the evidence. Villarreal, 453 S.W.3d at 433;
Almanza, 686 S.W.2d at 171. This case arises from an open plea of guilty wherein the only contested issue was the appropriate punishment for Appellant. The State’s case in chief focused on law enforcement’s efforts to determine the identity of the driver that struck Brown, the physical evidence of the damage sustained by Appellant’s car, the nature of Brown’s injuries including bodycam footage of his last moments of life, and the impact of his death on his family. The State offered the testimony of the two young men that were with Appellant to describe their activities
7
that night including their underage consumption of alcohol, Appellant’s reaction to the impact with Brown, and the group’s efforts to conceal the damage to Appellant’s car.
Appellant’s trial counsel advised the jury that he was seeking community supervision. Appellant’s evidence focused on community supervision. He called a psychologist that specializes in children and adolescents to offer expert testimony about brain development in adolescents. In this regard, Appellant was nineteen at the time of the accident. The expert opined that the brain grows rapidly between the ages of sixteen and twenty-three, that the brain in an adolescent is learning how to respond to first-time experiences, and that the way humans “regulate” is not fully developed until a person is in their mid-twenties.
Appellant also called a community supervision officer to provide details about how community supervision operates. In addition to discussing some of the conditions of community supervision, she testified that the trial court could order a period of confinement as a part of community supervision. The community supervision officer also testified that the trial court determines the curfew hours for a probationer. During cross-examination, the State established that the trial court is the entity that determines how long a person is on community supervision and the number of community service hours a person must perform. Thus, a community supervision officer provided testimony at trial that established the role played by the trial court in the imposition and regulation of community supervision. This evidence addressed many of the points that Appellant contends should have been provided by the omitted instructions. Accordingly, the state of the evidence does not indicate that Appellant suffered egregious harm.
Third, we consider the arguments of counsel. Villarreal, 453 S.W.3d at 433;
Almanza, 686 S.W.2d at 171. During his opening statement, Appellant’s trial counsel stated:
8
We’re going to ask that the jury make a recommendation for probation. I want you to know that the Judge is the one that actually sets the condition on that probation. You can make that recommendation, but the Judge is the one that sets the conditions. You are going to have a witness testify as to what those conditions are. Some of those conditions may also require some jail time.
During closing argument, Appellant’s trial counsel argued that for someone placed on community supervision, that person has “to work, commit no [offenses] against the State, obey all rules and regulations, those imposed by the Court and the probation department, the State of Texas.” (Emphasis added). Thus, as was the case with the community supervision officer’s testimony, Appellant’s trial counsel’s arguments to the jury conveyed the same information that he contends should have been conveyed by the trial court’s charge. Accordingly, the arguments of counsel do not support a claim of egregious harm.
Fourth, we consider any other relevant information contained in the record.
Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171. There is nothing in the record to indicate that the jury was unable to render a correct verdict based on lack of understanding of how community supervision works or its purposes. The jury asked four questions during their deliberations but none of the questions inquired about the mechanics of community supervision. Further, the fact that the jury assessed a penalty of fifteen years on the conviction for failure to stop and render aid and the maximum sentence of ten years on the conviction for tampering with physical evidence as well as maximum fines for both offenses does not indicate that the jury struggled with whether to grant community supervision in this case.
Because none of the Almanza factors demonstrate that the error, if any, from the omitted instructions created such harm that Appellant “has not had a fair and impartial trial,” we overrule Appellant’s sole issue on appeal. See Almanza, 686 S.W.2d at 171.
9
This Court’s Ruling
We affirm the judgments of the trial court.
JOHN M. BAILEY CHIEF JUSTICE
August 20, 2026 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.