In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-24-00164-CR __________________
DERWIN DEWAYNE BELL, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 19th District Court McLennan County, Texas Trial Cause No. 2021-1275-C1 __________________________________________________________________
MEMORANDUM OPINION
Derwin Dewayne Bell was indicted for two counts of the second-degree
felony offense of aggravated assault with a deadly weapon. Tex. Penal Code Ann. §
22.02.1 A jury found Bell guilty in Count I, and the trial court declared a mistrial in
Count II. In two issues, Bell complains that the jury charge contained an improper
1 This case was transferred from the Tenth Court of Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas. See Tex. Gov’t Code Ann. § 73.001. 1 definition of “firearm” which caused egregious harm to Bell, and that the evidence
was insufficient to support the verdict. For the reasons discussed below, we affirm
the judgment of the trial court.
Background
The grand jury indicted Bell for aggravated assault with a deadly weapon,
alleging in Count I:
[T]hat DERWIN DEWAYNE BELL, hereinafter called Defendant, on or about the 7th day of June, 2021, in said county and state did then and there intentionally and knowingly threaten ROBERT CURRY with imminent bodily injury by shooting at ROBERT CURRY with a firearm, and did then and there use or exhibit a deadly weapon, namely, a firearm, during the commission of the assault[.]
Count II of the indictment alleged:
[T]hat the said DERWIN DEWAYNE BELL, in the County of McLennan and State aforesaid on or about the 7th day of June, 2021, did then and there intentionally, knowingly, and recklessly cause bodily injury to ALEXANDRIA GOODMAN by shooting ALEXANDRIA GOODMAN with a firearm, and the Defendant did then and there use or exhibit a deadly weapon, namely a firearm, during commission of the assault[.]
Several witnesses testified at trial. We summarize their testimony below.
Linda Farley
Linda Farley was the programmer at the Dewey Recreational Center. The
Dewey Recreational Center is a community center that, among other things, has a
gym where people play basketball. Farley worked at the front desk where she signed
in individuals who wanted to use the recreational center. Through Farley, the State 2 admitted the sign-in sheet from the Dewey Recreational Center on the night of June
7, 2021. The sign-in sheet showed three individuals relevant to this case that were at
the Dewey Recreational Center the night of the shooting: Danacion Presha, Robert
Curry, and Derwin Bell.
Farley testified that the police arrived at the Dewey Recreational Center the
night of the shooting. She was working at the front desk when two girls came in and
asked her if her Mercedes was sitting outside. The girls told Farley that her “car just
got shot up.” Photos admitted at trial showed her vehicle with several bullet holes.
Cody Weiser
Weiser is a K9 officer with the City of Waco Police Department. On the night
of June 7, 2021, he heard a shooting call come out over the radio. He proceeded
towards Dewey Park and knew his commander was behind the suspect vehicle. His
commander was trying to catch up with the suspect vehicle but had lost it. The
vehicle was described as a purple Challenger. Weiser was able to locate the purple
Challenger. He described how the vehicle caught his attention “because of the way
it was driving.” The vehicle ran a stop sign. Weiser activated his radar because he
could tell the vehicle was going fast and did not appear to have its lights on. Weiser
caught the purple Challenger going over 50 miles an hour according to his radar, and
Weiser drove “just shy of 100 miles an hour trying to catch up to them.” Weiser ran
the license plate number and determined that Bell was associated with driving the
3 vehicle and that there was a familial relationship between the registered owner of
the vehicle and Bell. Weiser was unable to catch the purple Challenger that night.
On cross-examination, Weiser testified that he “had prior contact with that car
running from me” and believed that Bell was the driver. However, he never saw Bell
in the driver’s seat of the vehicle. Weiser believed that on the night of June 7, Bell
was operating the car because the previous time he pursued the vehicle, “other
investigators had actually seen who they believed was Derwin Bell. That’s why he
was listed as a suspect -- -- in the initial pursuit.”
John Hazel
John Hazel is a crime scene investigator with the Waco Police Department.
On the night of the shooting, Hazel was first dispatched to a residence “where some
people involved in the shooting had driven to.” He photographed a GMC Yukon that
sustained damage as well as the people in that vehicle. After taking photographs of
the Yukon, Hazel went to the Dewey Recreational Center where the main shooting
had happened.
Photographs of the Yukon show that the vehicle had a flat front right tire and
damage consistent with a bullet defect on the lower left area of the front bumper.
Additionally, the photographs showed bullet defects on the front and rear driver’s
side doors and windows. The front windshield had a glass fracture that was
consistent with a bullet defect. Hazel testified there were eight bullet holes in the
4 vehicle, all on the driver’s side. Hazel stated that depending on the direction from
which the bullet entered, there was a possible consistency between a front-seat
passenger being hit in the left arm and the bullet hole in the windshield of the Yukon.
The photos of the crime scene at the Dewey Recreational Center showed an
Altima had defects consistent with being struck by a bullet. There were also several
photos admitted at trial that showed shell casings in the parking lot, designated by
orange cones. Hazel explained that the groupings of casings in the parking lot
indicated that there were shots being fired all over the parking lot consistent with a
shooter who is moving. Hazel collected a total of thirty-five casings in the parking
lot. The casings Hazel collected were not of the same brand, but he testified that it
is not uncommon for brands of ammunition from one handgun to be mixed.
On cross-examination, Hazel testified that he did not know whether the thirty-
five casings represented one gun, two guns, or three guns. Hazel could not determine
how many weapons or shooters were involved but testified that other investigators
may be able to determine other facts in the investigation.
Kenneth Hall
Hall works as a recreational aid in the gym at the Dewey Recreational Center.
On the night of the shooting, he remembers an argument occurring on the basketball
court. He told the participants that “if you don’t settle down, you know, we’re going
to have to shut it down. Eventually, we winded up shutting it down and everybody
5 went outside.” Although Hall did not hear any shots outside the Dewey Recreational
Center, someone ran inside the center and “said that they were out there shooting.”
Daniel Kent
Kent is a detective with the Waco Police Department. He assisted his partner,
Detective Conner, with conducting a photographic lineup of the suspect in the
shooting. As Conner prepared the lineup, Kent did not know which photo was the
suspect. Kent showed the photos sequentially. The lineup was shown to both Robert
Curry and Alexandria Goodman at their residence. He showed the lineups separately
from one another. Both of them made a positive identification from the lineup. Curry
identified photo number five, which is a photograph of Bell. Curry signed and dated
the photo and stated that “he’s 100 percent sure that is the person that committed the
offense.” Goodman identified Bell as well, signed and dated the photo, and put “that
she’s 95 percent sure that that’s the person that committed the offense.” Goodman
and Curry did not have an opportunity to confer with each other before Goodman
was shown the lineup.
Robert Curry
At the time of the shooting, Curry was dating Goodman, and they were living
in her family’s house. Curry regularly went to the Dewey Recreational Center to
play basketball. On the date of the shooting, Curry went by himself to the Dewey
6 Recreational Center to play basketball and he did not see anyone he knew. After he
finished playing basketball, Curry went back home.
Curry later received a phone call from an individual named Danacion whom
he knew through playing basketball. Danacion called Curry to get a ride home from
the Dewey Recreational Center, which was not unusual. Goodman, who was seven
months pregnant with Curry’s son, accompanied Curry to pick up Danacion. Curry
drove Goodman’s GMC Yukon to pick up Danacion.
Curry backed into a parking spot and got out of the vehicle to get Danacion.
Curry and Danacion were standing outside the vehicle talking when Goodman told
Curry, “Something don’t look right” and the shots started. At that point, Curry was
standing next to the open driver’s side door. Goodman was in the passenger seat with
the door closed. Curry “[b]lacked out” for a moment, but remembered getting into
the vehicle but couldn’t find the keys. While he was getting into the vehicle, Curry
remembers “[t]he truck was getting shot at.” At that point in time, he did not know
if either he or Goodman had been hit. Curry then drove off and made it down the
street when Goodman told Curry that “she’d been grazed.” Photos admitted at trial
show an injury to Goodman’s left arm. Curry did not get hit that night.
Curry testified that he was not aware that he was driving on a flat tire. When
he parked the Yukon, he noticed a hole in the front of the vehicle. When the vehicle
was being shot at, Goodman was able to get on the floorboard. Curry was able to get
7 a look at the individual who shot at him that night. He confirmed that he was 100
percent certain that the person he identified in the photo lineup was the person that
committed the crime. Curry made an in-court identification of Bell.
On cross-examination, Curry explained that he was talking to Danacion, who
was standing behind the driver’s seat with the door open, when he saw something
unusual that made him think someone was going to start shooting at him. Curry
testified that he saw more than one person but did not remember how many people.
He did not know anyone that would have a reason to shoot him. Curry clarified that
he saw one person pull a gun and point it at him, but he did not know how many
shooters were there because he blacked out. Curry was looking in the direction of
where the shots came from and saw more than one person by a car. He had not seen
any of those individuals before.
Bobby King
King is a police officer with the City of Waco. He assisted Officer Weiser find
the suspect vehicle lost in the pursuit. King talked to the owner of the vehicle,
Treffany Jones. Jones is Bell’s mother. King talked to Jones at her apartment after
she had called to report the vehicle stolen. During the course of the shooting
investigation, police learned that the same vehicle that Jones was attempting to
report stolen was involved in the shooting. Law enforcement did not believe the
vehicle was stolen; rather, they believed that Bell drove the vehicle.
8 Alexandria Goodman
Goodman shares two children with Curry. On the night of June 7, 2021,
Goodman remembers riding with Curry in her 2004 Yukon “[t]o go pick up
Danacion to give him a ride home.” Goodman, who was seven months pregnant at
the time, sat in the front passenger seat while Curry drove. Curry backed into a
parking spot at the Dewey Recreational Center and took the keys out of the ignition.
Curry went inside the Dewey Recreational Center to get Danacion. While Curry
went inside, Goodman saw two boys sitting on the curb on her side of the vehicle.
The boys flashed a gun. Goodman described how the two boys “kept looking” and
that “one of them had messed with a gun and put it back and was looking[]” at
Goodman, towards her car, making her feel “uncomfortable.” Goodman then saw a
person getting out of a purple Challenger. That person “was on the phone [and] then
went back to the purple Challenger.”
Curry and Danacion walked out of the gym to the car. Curry opened the front
driver’s side door and Danacion opened the rear driver’s side door. After that,
Goodman saw “sparks.” Goodman only realized she had been hit by something when
they were getting ready to drive off from the Dewey Recreational Center. Curry and
Danacion were outside of the vehicle when the shots were fired. Danacion left the
rear driver’s side door open and ran off while Curry got into the vehicle. Goodman
had to get the keys to the Yukon and put them in the ignition. Goodman then got
9 down on the floorboard because she heard glass breaking when a bullet came through
the front windshield.
Goodman testified that the person who shot was the same person she saw
come out of the purple Challenger. As Curry and Goodman drove away from the
Dewey Recreational Center, shots continued to be fired.
Goodman confirmed the identification she made of the suspect in the shooting
from the photo lineup. She explained that the “95 percent” confidence level she
expressed at the time meant that she was “100 percent” sure and that she did not
have any doubts. Goodman also made an in-court identification of Bell.
On cross-examination, Goodman explained that the man in the purple
Challenger went over to the boys sitting on the curb, spoke with them, walked back
to the purple Challenger while talking on the phone, and grabbed a gun out of the
purple Challenger. She also saw that the two people sitting on the curb had a gun but
did not know “if they end[ed] up giving the boy in the Challenger the gun or what,
but he went to the car to get a gun.” When Curry and Danacion came out of the
Dewey Recreational Center, the man by the purple Challenger had a gun “[b]ecause
he started shooting right after that, . . . [.] He didn’t go back to the boys sitting on
the curb again after that.” Goodman recalled telling Curry and Danacion, “I don’t
know what’s going on. But these two boys sitting right here, and they keep on
10 looking, and they flashed a gun.” Goodman described one of the subjects sitting on
the curb as being 5’8” and 180 pounds.
Neither party objected to the jury charge. The abstract portion of the charge
provided the following definitions for “deadly weapon” and “firearm” applicable to
Count I:
“Deadly weapon” means a firearm or anything 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.
“Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.
The application portion of the jury charge stated:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 7th day of June, 2021, in McLennan County, Texas, the Defendant, Derwin DeWayne Bell, did then and there intentionally or knowingly threaten Robert Curry with imminent bodily injury by shooting at Robert Curry with a firearm, and did then and there use or exhibit a deadly weapon, namely a firearm, during the commission of the assault, then you will find the Defendant “Guilty” of Aggravated Assault as charged in Count I of the indictment.
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of Aggravated Assault as charged in Count I of the indictment, and say by your verdict “Not Guilty.”
11 The jury returned a verdict of guilty in Count I of the indictment, aggravated
assault with a deadly weapon against Curry. The jury sentenced Bell to thirty years
in prison.
Sufficiency of the Evidence
In his second issue, Bell complains that the evidence is legally insufficient to
convict Bell of aggravated assault. We address his second issue first as it would
afford Bell greater relief than his first issue. See Benavidez v. State, 323 S.W.3d 179,
182 (Tex. Crim. App. 2010) (“[A] finding of legal insufficiency on appeal would
interpose a jeopardy bar to retrial.”); see also Ex parte Reyes, 474 S.W.3d 677, 681
(Tex. Crim. App. 2015).
The jury is the exclusive judge of the credibility of the evidence and the weight
to be given to that evidence. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App.
2020). As such, the jury is responsible for resolving conflicts in the testimony, is
free to believe some, all or none of a witness’s testimony, and may assign as much
or as little weight to a witness’s testimony as it sees fit. Id. Jurors may also draw
reasonable inferences from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). “[A]n inference is a conclusion reached by considering other facts
and deducing a logical consequence from them.” Id. at 16.
When examining whether a criminal conviction is supported by legally
sufficient evidence, we compare the evidence to the elements of the offense as
12 defined by a hypothetically correct charge. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). We consider all the evidence, viewed in the light most
favorable to the verdict, along with the inferences that could reasonably be drawn
from the evidence. Hooper, 214 S.W.3d at 13. We do not assess the credibility of
the evidence, reweigh the evidence, nor substitute our judgment for that of the jury.
See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The evidence is legally sufficient to support the conviction if any rational trier
of fact could have found each of the essential elements of the offense beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). “Each fact
need not point directly and independently to a defendant’s guilt, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016)
(citation omitted); see also Garcia v. State, 667 S.W.3d 756, 761-62 (Tex. Crim.
App. 2023) (citation omitted) (“A proper review of evidentiary sufficiency considers
the cumulative force of the evidence.”).
A person commits aggravated assault if the person commits assault as defined
in Texas Penal Code section 22.01 and the person: (1) causes serious bodily injury
to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon
during the commission of the assault. Tex. Penal Code Ann. § 22.02(a). A person
commits the offense of assault if the person (1) intentionally, knowingly, or
13 recklessly causes bodily injury to another, including the person’s spouse; (2)
intentionally or knowingly threatens another with imminent bodily injury, including
a person’s spouse; or (3) intentionally or knowingly causes physical contact with
another when the person knows or should reasonably believe that the other will
regard the contact as offensive or provocative. Id. § 22.01(a).
On this record, the jury could have reasonably inferred that Bell intentionally
or knowingly threatened Curry with imminent bodily injury by shooting at Curry
with a firearm. The eyewitness accounts and the forensic evidence showed that the
shooting was in the direction of the gold Yukon which Curry was driving. Both
Curry and Goodman testified that they identified Bell in a photo lineup as the person
that committed the offense. Curry identified Bell with a 100 percent confidence level
and Goodman identified Bell with a 95 percent confidence level, but in court she
identified Bell with a 100 percent confidence level.
The evidence also supported a reasonable inference that Bell was at the Dewey
Recreational Center and was driving the purple Dodge Challenger that night. The
sign-in sheet from the night of the shooting shows that Bell signed in to the Dewey
Recreational Center. Law enforcement testified that the purple Dodge Challenger
fled the scene of the crime, speeding and driving without lights. Based on previous
encounters with the vehicle, law enforcement believed Bell drove the purple
Challenger, and Goodman identified Bell as the man that was in the purple
14 Challenger at the Dewey Recreational Center. Although the defense argued there
was a possibility of two shooters and that Bell was not the person who shot at Curry,
we must defer to the responsibility the jury has to resolve the conflicts in the
testimony, to weigh the evidence the trial court admits into evidence in the trial, and
to draw inferences from the basic facts to the ultimate facts the jury must decide to
resolve the issue in dispute in the trial. Hooper, 214 S.W.3d at 13. By its verdict, the
jury rejected the defense’s theory that Bell was not the shooter.
As the sole judge of the weight and credibility of the evidence, the jury bore
the burden of determining what to believe. See Metcalf, 597 S.W.3d at 855. Based
on the record before us, viewing all the evidence in the light most favorable to the
jury’s verdict, we conclude that a rational jury could have found, beyond a
reasonable doubt, that Bell committed the offense of aggravated assault with a
deadly weapon against Curry. See Tex. Penal Code Ann. § 22.02(a); see also
Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. Bell’s second issue is
overruled.
Jury Charge
In his first issue, Bell complains, “The trial court reached into Chapter 46 for
a definition of ‘firearm.’ The definition did not apply, but assuming it did, the trial
court did not include the portion of the definition that would have allowed Appellant
15 to argue the State had not carried its burden. The error was not objected to but caused
egregious harm.”
When reviewing alleged charge error, we determine whether error existed in
the charge and, if so, whether sufficient harm resulted from the error to compel
reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). “Only if we
find error do we then consider whether an objection to the charge was made and
analyze for harm.” Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st
Dist.] 2009, pet. ref’d) (citations omitted). If charge error exists but the defendant
did not object to the alleged error at trial, we may reverse the judgment only if the
resulting harm is so egregious that the defendant did not receive a fair and impartial
trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);
see also Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). “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.” Allen v. State,
253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (citation omitted). In assessing the
degree of harm, we must consider the entire jury charge, the state of the evidence,
the argument of counsel, and any other relevant information revealed by the record.
See id.; Almanza, 686 S.W.2d at 171. An appellant must have suffered actual harm,
not merely theoretical harm. See Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.
App. 2012) (citing Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986)).
16 As indicated above, according to Texas Penal Code section 22.01, a person
commits the offense of aggravated assault if the person commits an assault and uses
or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code
Ann. § 22.01. Section 1.07(a)(17) defines “deadly weapon” for purposes of the entire
Penal Code, necessarily including whether an assault qualifies as an aggravated
assault under section 22.01. Id. § 1.07(a)(17). The definition of “deadly weapon”
includes “a firearm.” Id. Therefore, if a person uses or exhibits a firearm during the
commission of an assault, the person has committed the offense of aggravated
assault.
Section 46.01(3) defines “firearm,” but only for purposes of Chapter 46 which
contains various prohibitions regarding the possession or carrying of certain
weapons in certain locations and under certain circumstances. Id. § 46.01(3). This
section indicates certain antique firearms, curio firearms, and replicas of such
firearms are not included in the definition of “firearm,” thereby making such items
exempt from Chapter 46’s prohibitions. Nothing in section 46.01(3) or any other
provision of the Penal Code makes it lawful for a person to assault another person
with an antique, curio or replica firearm, nor is there any Penal Code provision
indicating that an aggravated assault is not committed so long as the weapon being
used or exhibited during the commission of an assault is an antique, curio or replica
17 firearm. No evidence was presented at trial that any firearm involved in this case
was an antique, curio or replica.
Therefore, it would have been error for the court’s charge to have defined
“firearm” as that term is defined in section 46.01(3), because the inclusion of such a
definition would have given Bell a defense to which he was not entitled, to wit: that
the firearm used during the assault was an antique, curio or replica. But no such error
occurred, because the court’s charge did not define “firearm” as it is defined in
section 46.01(3). Instead, Bell complains that the court erred in failing to include
section 46.01(3)’s definition of “firearm” in its entirety, even though section
46.01(3) does not apply in this case. Bell cannot be heard to complain that the trial
court did not commit an error that would have worked in his favor. We conclude the
trial court did not err by omitting from the charge a definition that did not apply in
this case, either as an element of, or as a defense to, the charge of aggravated assault.
We overrule Bell’s first issue to the extent he argues the trial court erred by not
including section 46.01(3)’s definition of “firearm” in its entirety.
In addition to complaining about what the charge did not include, Bell
complains about what the charge did include. The charge defined “firearm” as: “any
device designed, made, or adapted to expel a projectile through a barrel by using the
energy generated by an explosion or burning substance or any device readily
convertible to that use.” Bell argues it was error to include this definition because it
18 comes from section 46.01(3) which does not apply in this case, and because it is
generally impermissible for a trial court to define terms which are not statutorily
defined.
We agree the trial court should not have included a definition of “firearm” in
the charge, not because the definition was derived from an inapplicable statute, but
because it was not derived from an applicable statute. See Walters v. State, 247
S.W.3d 204, 214 (Tex. Crim. App. 2007) (“Normally, if the instruction is not derived
from the code, it is not ‘applicable law.’”); see also Garrison v. State, 726 S.W.2d
134, 138 (Tex. Crim. App. 1987) (en banc). In Garrison, the charge included a
definition of “knife” derived from section 46.01(7). While the Court of Criminal
Appeals held that “the trial court should not have included such definition in an
aggravated robbery charge[,]” the Court clarified that “[i]t is difficult to characterize
the definition as ‘error’ because it is not that the definition does not fit the weapon
used by appellant, but simply that the specific definition is set out for use with
Chapter 46 offenses.” Garrison, 726 S.W.2d at 138-39. Assuming without deciding
the mistake constituted error, the Court ultimately concluded Garrison was not
deprived of a fair trial. Id. at 139.
Similarly, in this case, even if the definition of “firearm” in the charge
constituted error, we cannot reverse Bell’s conviction without first analyzing
whether or not the “error” constituted egregious harm by depriving Bell of a fair
19 trial. Almanza, 686 S.W.2d at 171. “Egregious harm is a ‘high and difficult standard’
to meet, and such a determination must be ‘borne out by the trial record.’” Villarreal
v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (quoting Reeves v. State, 420
S.W.2d 812, 816 (Tex. Crim. App. 2013)); see Nava v. State, 415 S.W.3d 289, 298
(Tex. Crim. App. 2013) (“[Egregious harm] is a difficult standard to meet and
requires a showing that the defendants were deprived of a fair and impartial trial.”).
An error results in egregious harm only “if it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory.”
See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). The harm must be
actual, not merely theoretical. Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App.
1986). When analyzing whether charge error results in egregious harm, we must
examine “the entire jury charge, the state of the evidence, including the contested
issues and weight of probative evidence, the argument of counsel and any other
relevant information revealed by the record of the trial as a whole.” Almanza, 686
S.W.2d at 171.
The charge as a whole required the jury to find Bell used or exhibited a deadly
weapon, to wit: a firearm, during the commission of an assault. The charge’s
definition of firearm has not been shown to deviate in any way from the commonly
understood meaning of the word. We conclude the charge as a whole weighs against
a finding of egregious harm.
20 The evidence at trial showed that a firearm was used. Hazel explained what
“casings” are, the components of a bullet, and the procedures he used for marking
where he found casings. Bell does not dispute that the evidence at trial showed that
the weapon in question could rapidly discharge a large quantity of bullets. The
photographs admitted at trial show bullet defects in the gold Yukon as well as the
Altima and Mercedes that were at the crime scene. Goodman testified that she saw
a gun on the night of the shooting, and both Curry and Goodman testified regarding
the shooting. We conclude the evidence admitted at trial weighs against a finding of
egregious harm.
In its closing argument, the State briefly addressed the use of the firearm in
terms of a deadly weapon: “A deadly weapon can be a lot of different things.
Obviously, in this case it’s a firearm. We’ve got 35 shell casings from that parking
lot to show that a firearm was used. And under the law, a firearm is automatically a
deadly weapon.”
Most of defense counsel’s argument to the jury discussed the possibility of
two shooters and the lack of a positive identification that Bell was driving the purple
Challenger. Defense counsel argued that none of the witnesses testified that Bell was
driving the purple Challenger on the day of the shooting. Moreover, Curry did not
testify that he saw Bell point the gun at him and shoot him. Defense counsel
contended that there were probably two shooters because of the number of shell
21 casings found on the scene, the testimony that shows there were two individuals on
the curb, and Goodman’s testimony gives rise to the possibility of three shooters.
Defense counsel’s arguments implied that one of the two individuals on the curb
could have been the shooter. We conclude the arguments of counsel weigh against a
finding of egregious harm.
After reviewing the record, including the entire charge, the state of the
evidence, the arguments of counsel and other relevant information, we conclude the
alleged error in the charge did not result in egregious harm because it did not affect
the basis of the case, it did not deprive Bell of a valuable right or vitally affect a
defensive theory, and Appellant was not deprived of a fair and impartial
trial. Almanza, 686 S.W.2d at 171. We overrule Bell’s first issue.
Conclusion
Having overruled Bell’s issues, we affirm the judgment of the trial court.
AFFIRMED.
KENT CHAMBERS Justice
Submitted on June 27, 2025 Opinion Delivered April 8, 2026 Do Not Publish
Before Johnson, Wright and Chambers, JJ.