Erlinda Lujan v. the State of Texas

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ERLINDA LUJAN, § No. 08-22-00165-CR

Appellant, § Appeal from the

v. § 243rd Judicial District Court

THE STATE OF TEXAS, § of El Paso County, Texas

Appellee. § (TC# 20160D04874)

OPINION

This case arises out a series of interrelated kidnappings and a murder. A jury convicted

Appellant Erlinda Lujan in trial court case number 20160D04874 of engaging in organized

criminal activity associated with the murder of Anthony Trejo and of tampering with a human

corpse. The jury also convicted Appellant in trial court case number 20160D05527 of two counts

of engaging in organized criminal activity associated with the aggravated kidnappings of two

victims, Isaac Lujan (Isaac) and James Tyler Hall (Hall). 1

In appealing case number 20160D04874, Appellant raises four issues challenging her

conviction. First, she argues that the evidence is legally insufficient to support her conviction for

1 Appellant also appeals her conviction in trial court case number 20160D05527 under a separate appeal in cause number 08-22-00166-CR. engaging in organized criminal activity. Second, she argues that the jury charge erroneously

allowed the jury to use recklessly committed aggravated assault as a predicate offense to felony

murder, which in turn was used as a predicate offense to engaging in organized criminal activity.

Third, Appellant argues that the trial court abused its discretion by admitting autopsy photographs

of the victim because the risk of unfair prejudice substantially outweighed their probative value.

Fourth and finally, she argues that the trial court abused its discretion when it overruled Appellant’s

objection to the prosecutor’s closing argument comparing her to world leaders guilty of murder

and genocide. We affirm her conviction for the following reasons.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

(1) Facts associated with Hall’s kidnapping

Hall testified that in 2016, he moved to El Paso, Texas to work at a power plant. During

this time, Hall met Appellant and several others eventually involved with his kidnapping, including

Janet Lucero (Lucero), Isaac, Karen Castillo (or Dora), Anthony Trejo (or Lazy), and Roberto

Favela (or Filero). Hall began purchasing methamphetamine from Filero, and Hall consumed

methamphetamine together with Filero and Lucero.

The night before he was kidnapped, Hall was partying (“drinking, smoking meth”) with

Lucero, Isaac, and Castillo. That same night, they went together to a pawn shop to sell some tools

they found in a vehicle belonging to a man named Adrian Herrera. Hall was told he was the only

one in the group who had an ID with him, so he used it to pawn the tools for gas money to drive

to California to pick up drugs. The next day, Hall drove with Lucero and Trejo to a house on

Mariano Street. When they arrived, Trejo got out of the vehicle, pointed a firearm at Hall, and told

2 him to move into the passenger seat. Hall complied, and Lucero moved to the seat behind him,

threatened him with a knife, and told him, “Don’t do anything stupid.” Trejo drove the vehicle to

a car wash, and Herrera, Filero, and Appellant arrived in another vehicle. As Trejo, Lucero,

Herrera, Filero, and Appellant spoke to each other, Trejo punched Hall in the face, laughed about

it, then fired a round out of the firearm (that seemed to have hit Trejo’s own foot), causing Trejo

and Herrera to become nervous and drive away with Hall.

Trejo drove the group to a house on Ortega Court where Filero forced Hall into the house

and threw him on the floor. Filero and another man, Phillip Esquer, bound Hall’s feet and hands

with rope and began to question him regarding whether he was an undercover police officer and

regarding the tools from Herrera’s vehicle that had been pawned. The men demanded Hall’s wallet

and the PIN number to his debit cards, which Hall provided. About three or four hours later, the

men blindfolded Hall with what he thought was electrical tape, threw him into a vehicle, and took

him to an apartment on Alameda Street, where they carried him upstairs and threw him or dropped

him on the apartment floor while his feet and hands were still bound.

Hall remained at the Alameda Street apartment for several days, during which time Herrera

and others physically tortured and questioned Hall. He was dragged around the carpet by his feet

and got carpet burns. Hall was also water boarded, subjected to questioning, had guns stuck in his

mouth, got cut with a knife by Herrera (after being threatened that his finger would be cut off), got

shot once by Herrera with a high-powered pellet rifle, and subjected to Herrera putting his penis

in Hall’s face. As Hall was tortured and questioned about drugs and the pawned tools, Appellant

was present taking notes. She did not torture him herself. At some point when the others had left

the apartment, Appellant removed Hall’s blindfold, brought him “a dollar burger from

3 McDonald’s” and water, and smoked THC and methamphetamine with him. Appellant also “beat

up” Lucero for a few minutes during Hall’s captivity, “almost like [a] parent disciplining a child

in a violent way.” Hall later saw Trejo, who looked “pretty rough,” lying in a bathtub in the

apartment.

After Isaac had been brought to the apartment, Appellant gave Hall some clothing and

threatened him to keep silent about what had happened before releasing him; Herrera also

threatened Hall to keep quiet. Hall believed Appellant had made the decision to release him and

recalled Appellant assuring him that he would not be killed. Hall left the apartment and eventually

gave a statement to a detective. Hall admitted that this first statement was untruthful due to his

claims that he did not use narcotics and that the kidnapping began in a parking lot or at a traffic

light. Hall subsequently rode a bus to Louisiana and gave another statement to detectives while he

was there. Hall credited Lujan for releasing him.

(2) Facts associated with Isaac’s kidnapping

The State called Isaac to testify and asked if he had been abducted, but Isaac only testified

that Appellant had saved his life before invoking his right to avoid self-incrimination under the

Fifth Amendment. After Isaac refused to answer any questions, the trial court struck his statement

from the record and found him in contempt but later apologized to him.

Detective Nicholas Alvarado of the El Paso Police Department testified that on September

13, 2016, he was dispatched with his partner to a fire station because the firefighters needed a

handcuff key. When Alvarado arrived, he saw Isaac with the firefighters outside the fire station.

Isaac had handcuffs on, which appeared to have been on his wrists for a long time. Alvarado

released Isaac, who went on his way.

4 (3) Facts associated with Trejo’s murder

(a) Esquer’s testimony

The State called Phillip Esquer to testify regarding Trejo’s abduction and murder, but he

also invoked his Fifth-Amendment right to avoid self-incrimination despite the fact that the State

had granted him immunity in exchange for his testimony. After the trial court ordered Esquer to

testify, he stated that he had been convicted of engaging in organized criminal activity associated

with kidnapping Hall. In September 2016, Esquer was living with Filero at the Ortega Court house.

On September 12, 2016, Filero and Trejo got into an argument at the house, and Esquer saw Filero

and two other men, Romuldo Trujillo (or Sean) and Stephen Ramirez, assaulting Trejo. After the

assault, Esquer gave Trujillo some cord, and Filero and Trujillo took Trejo away from the house

to an unknown place. Later that night, Appellant arrived at the Ortega Court house and asked for

some rags and grocery bags that Esquer later learned were used in disposing Trejo’s body. Several

days later, Esquer saw Trejo in the front seat of a car driven by Castillo when she arrived at the

Ortega Court house, but Esquer could not determine Trejo’s physical condition. Esquer did not see

Trejo again after that day.

(b) Castillo’s testimony

Castillo testified that in September 2016, she knew Appellant and Filero and had also met

Trejo on several occasions. On the night of his abduction, Trejo picked Castillo up and took her to

the Ortega Court house where Filero and Appellant were present. While Appellant was present in

the room, Filero asked Castillo about what had happened to some tools, but Castillo was unaware

of what had happened to them. Filero looked at Appellant during the questioning for “reassurance,”

and Appellant responded, “What are you looking at me for?” Trejo later came into the room and

5 told Appellant and Filero that he would take her with him, but he did not threaten Castillo. Trejo

drove with Castillo to another location and sexually assaulted her. Castillo fell asleep after the

assault and woke up at the Alameda apartment. Castillo and a “white man” were tied up in the

apartment. Castillo saw that the white man’s leg was bleeding and she later learned that he had

been shot with a pellet gun.

Eventually, Appellant and others arrived at the apartment. Castillo went into the bathroom

and saw Trejo, who was unconscious, in the bathtub. Castillo overheard Appellant and another

person talking about cleaning Trejo up, and she recalled hearing something to the effect of, “We

can’t leave him like this. Somebody has to clean him up and do something about it.” Castillo found

some wipes in the bathroom and began cleaning Trejo, then Trejo woke up and asked where he

was and what had happened to him. Appellant eventually told Castillo she did not need to clean

Trejo and told her to leave the bathroom. While she was still in the bathroom, Appellant told

Castillo to pretend to scream in pain to lead the others to believe Appellant was physically

assaulting her, and Castillo complied. After perhaps a day in the apartment, Appellant told Castillo

that she needed to leave, gave her some money and drugs, and allowed her to leave the apartment.

Castillo left the apartment and went to her father’s house.

(4) Law-enforcement investigation

Detective Jose Ochoa of the El Paso Police Department testified that he was assigned to

conduct surveillance at the Ortega Court house after receiving information that a missing person

was associated with that address. Officers subsequently obtained and executed a search warrant on

the Ortega Court house, and their search showed that stained carpet had been removed from the

house. Through interviewing people who came and went from the house, Ochoa learned the

6 missing person was potentially deceased. Ochoa also learned of possible evidence at another house

in Chaparral, New Mexico. When Ochoa went there, he found an extinguished bonfire with the

remains of a firearm. When Ochoa learned of the connection between the Alameda apartment and

the missing-person investigation, officers obtained and executed a search warrant on the apartment

and found zip ties, suspicious stains on the floor, and cleaning supplies. Officers subsequently

determined Appellant’s potential involvement in the offenses, arrested her, and interviewed her at

a police station.

During the interview, Appellant told Ochoa that after Trujillo told her they had abducted

Trejo, Appellant went with Trujillo and Filero and saw that Trejo had been beaten. The men told

Appellant that Trejo was “a piece of shit” and that he needed to die for everything he had done,

but Appellant wanted him to live. After the men dragged Trejo’s body out of Trujillo’s truck,

Trujillo directed Appellant to take Trujillo’s truck and drive Trejo to Mexico, but Appellant

refused. Appellant went with Trejo to the Alameda apartment, fed him, and told Filero and Trujillo

to release him, but they refused and said that they were going to kill him. The men also threatened

to kill Lucero, Appellant’s friend who was like a daughter to Appellant, because she was a “snitch”

and knew too much. Appellant later learned that Filero and Trujillo had killed Trejo. Days later,

Trujillo and Filero directed Appellant to collect four bags containing parts of Trejo’s body and

duct-tape them together so that if they “go down” for this, Appellant would, too. After she duct-

taped the bags together inside another bag, Appellant drove with Filero and Trujillo in Trujillo’s

truck to drop off the body. Appellant traveled with Filero and Trujillo to an unpaved road in a

desert area, but Appellant left the truck before arriving at the location where Trejo was dumped.

Appellant subsequently directed the detectives to where the Trejo was buried. Officers eventually

7 found Trejo’s body, which had been dismembered. After performing an autopsy, a medical

examiner testified that Trejo’s cause of death was “homicide by unspecified means.”

B. Procedural history

In cause number 20160D05527, the State charged Appellant with two counts of engaging

in organized criminal activity arising from the aggravated kidnappings of Isaac (Count I) and Hall

(Count II). The State also charged Appellant in cause number 20160D04874 with (1) engaging in

organized criminal activity arising from the murder of Trejo (Count I); (2) tampering with a human

corpse (Count II); and (3) tampering with physical evidence, to wit: the carpet from the Ortega

Court house (Count III).

The trial court granted the State’s motion to consolidate cause numbers 20160D05527 and

20160D04874, and both cases were tried to a jury in the same trial. During the trial, the State

offered three photographs of Trejo’s body taken during his autopsy, and Appellant objected on the

basis that their probative value was substantially outweighed by the risk of unfair prejudice. After

the State withdrew one of the photographs, the trial court admitted the other two photographs over

Appellant’s objection.

The jury found Appellant guilty of both counts of engaging organized criminal activity in

case number 20160D05527. Regarding case number 20160D04874, the jury found Appellant

guilty of engaging in organized criminal activity arising from the murder of Trejo and tampering

with a human corpse, and it found Appellant not guilty of tampering with physical evidence.

During closing arguments on punishment, the prosecutor compared Appellant to world leaders

who “have not gotten their hands dirty that have been responsible for … murder [and genocide.]”

Appellant objected that the prosecutor’s argument was an improper appeal to the jury’s emotions,

8 and the trial court overruled the objection. In 20160D05527, the jury assessed five years’

imprisonment for Count I and fifteen years’ imprisonment for Count II. In 20160D04874, the jury

assessed fifty-five years’ imprisonment for Count I and seventeen years’ imprisonment for Count

II.

This appeal followed. Appellant challenges her convictions in 20160D04874 in four issues,

arguing that (1) the evidence is legally insufficient to support her conviction for engaging in

organized criminal activity; (2) the jury charge erroneously allowed the jury to find that Appellant

recklessly committed aggravated assault as a predicate offense to felony murder used to support

the engaging-in-organized-criminal activity charge, thus violating the “merger doctrine”; (3) the

trial court abused its discretion by admitting the autopsy photographs over her Rule-403 objection;

and (4) the trial court abused its discretion by overruling her objection to the prosecutor’s closing

argument comparing Appellant to world leaders who commit murder and genocide.

II. LEGAL SUFFICIENCY

In her first issue, Appellant argues that the evidence is legally insufficient to support her

conviction for engaging in organized criminal activity associated with Trejo’s murder. For the

following reasons, we disagree.

A. Standard of review

The Fourteenth Amendment’s due process guarantee requires that legally sufficient

evidence support every conviction. See Jackson v. Virginia, 443 U.S. 307, 315–16 (1979); Brooks

v. State, 323 S.W.3d 893, 912 (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.

9 Jackson, 443 U.S. at 318–19; Brooks, 323 S.W.3d at 912 (establishing legal sufficiency under

Jackson v. Virginia as the only standard for review of the evidence).

We recognize that the jury is the sole arbiter of witness credibility and the weight attached

to witness testimony. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020); Dobbs, 434

S.W.3d at 170. Only the jury acts “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 any 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 defer to that determination. Dobbs v. State, 434 S.W.3d

166, 170 (Tex. Crim. App. 2014) (citing Jackson, 443 U.S. at 319). In conducting a legal-

sufficiency review, “[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. (quoting

Jackson, 443 U.S. at 318).

We consider the sufficiency of the evidence by measuring it against the hypothetically

correct jury charge, which “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 theories of

liability, and adequately describes the particular offense for which the defendant was tried.”

Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex. Crim. App. 2018) (citation omitted).

10 B. Applicable law

On appeal, Appellant challenges her conviction for engaging in organized criminal activity

associated with Trejo’s murder. As applicable here, a person commits engaging in organized

criminal activity “if, with the intent to establish, maintain, or participate in a combination . . . , the

person commits or conspires to commit . . . murder[.]” TEX. PENAL CODE ANN. § 71.02(a)(1). A

“combination” means “three or more persons who collaborate in carrying on criminal activities.”

Id. § 71.01(a). “Conspires to commit” means “that a person agrees with one or more persons that

they or one or more of them engage in conduct that would constitute the offense and that person

and one or more of them perform an overt act in pursuance of the agreement. An agreement

constituting conspiring to commit may be inferred from the acts of the parties.” Id. § 71.01(b).

The State charged Lujan under the combination theory, alleging that she “with the intent

to establish, maintain, or participate in a combination or in the profits of a combination with Steven

Ramirez, Roberto Favela, Romuldo Trujillo, or Adrian Herrera, did then and there commit the

criminal offense of Murder.” Because the State relied on the combination theory, it was required

to prove continuity in the combination in which Appellant and at least two other persons intended

and “agreed to work together in a continuing course of criminal activities.” See Nguyen v. State, 1

S.W.3d 694, 697 (Tex. Crim. App. 1999) (en banc) (citation omitted). The State had to prove that

the defendant “intended to ‘establish, maintain, or participate in’ a group of three or more, in which

the members intend to work together in a continuing course of criminal activities.” Id. All of the

acts associated with the alleged criminal activity need not be criminal offenses themselves, and the

acts viewed in the context of furthering a criminal activity may provide evidence of intent to do

more than agree to commit a single crime. See id.

11 In this case, the State alleged murder as the predicate criminal activity associated with the

engaging-in-organized-criminal-activity charge. A person commits murder if she (1) intentionally

or knowingly causes the death of another individual; (2) intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an individual; or (3)

commits or attempts to commit a felony, other than manslaughter, and in the course and

furtherance of the commission or attempt, she commits or attempts to commit an act clearly

dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN. §§

19.02(b)(1)–(3).

The State’s case further rested on the notion that Appellant participated in Trejo’s murder

as a party. Under the law of parties, “A person is criminally responsible as a party to an offense if

the offense is committed by his own conduct, by the conduct of another for which he is criminally

responsible, or by both,” and “[e]ach party to an offense may be charged with commission of the

offense.” TEX. PENAL CODE ANN. §§ 7.01(a), (b). As applicable here, a person is criminally

responsible for another’s conduct if, “acting with intent to promote or assist the commission of the

offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense.” Id. § 7.02(b). Thus, the law of parties allows the State to enlarge a defendant’s criminal

responsibility to acts in which she may not be the primary actor, which depends at least in part on

the conduct of another person. Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996) (en

banc). Although mere presence at the scene of an offense is not sufficient to support a conviction

under a parties theory, it is a relevant circumstance tending to show guilt that, when combined

with other facts shown through direct or circumstantial evidence, may establish the defendant’s

12 status as a participant to the offense. See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App.

1987) (en banc).

C. Analysis

Appellant does not challenge the legal sufficiency of the evidence establishing that her

activities constituted a combination as that term is defined under the Penal Code. Instead, she

argues that evidence of her involvement as a party in the underlying offense of Trejo’s murder is

legally insufficient. She contends that the only evidence establishing her promotion or assistance

to the commission of the murder was (1) her presence when Trejo held Hall at gunpoint; (2) her

presence at the Ortega Court house after Filero, Trujillo, and Ramirez assaulted Trejo; (3) her

refusal to Filero and Trujillo’s insistence that she kill Trejo or take him to Mexico in Trujillo’s

truck; (4) her presence with Trejo at the Alameda apartment; (5) her discussion of whether to clean

Trejo and her statement to Castillo that Trejo did not need to be cleaned up; and (6) her assistance

in taking the bags containing parts of Trejo’s body to the desert.

However, contrary to Appellant’s assertion, the record indicates more than Appellant’s

mere presence or passive participation in Trejo’s murder and other associated criminal activity, all

of which occurred continuously over a span of at least several days. The evidence suggests that

Appellant first became directly involved with Trejo’s murder in the immediate aftermath of his

beating by Filero, Trujillo, and Stephen Ramirez. After Filero and Trujillo assaulted Trejo and

took him out of the Ortega Court house, Appellant appeared at the house, apologized to Esquer,

and asked for some rags and bags. As the State argues, this evidence circumstantially supports the

notion that Appellant took at least some responsibility for Trejo’s beating and abduction and was

involved in the clean-up process.

13 Following the assault, Appellant admitted that she transported Trejo in Trujillo’s truck, but

she apparently refused Filero’s and Trujillo’s demand that she kill Trejo or take him to Mexico.

Trejo eventually ended up at the Alameda apartment, and Hall and Castillo testified that they saw

him lying in the bathtub in a badly beaten condition while he was going in and out of

consciousness. According to Castillo, Appellant took charge of Trejo’s captivity, and Castillo

overheard Appellant talking about Trejo with another person to the effect of, “We can’t leave him

like this. Somebody has to clean him up and do something about it.” When Castillo began to clean

Trejo, Appellant told her that she did not need to do so and ordered her to leave the bathroom.

After Trejo’s death, Appellant admitted to bagging his dismembered corpse and traveling to the

desert with other members of the group to dispose of the body. From this evidence, the jury could

have reasonably inferred that Appellant, who had engaged in concealing evidence that Trejo had

been assaulted and had taken charge of Trejo’s custody at the apartment, knew that he was going

to be killed. Moreover, this evidence established that she aided Filero, Trujillo, and others in

accomplishing Trejo’s eventual murder by concealing evidence of his assault and continuing to

hold him and assume responsibility for his confinement until he could be killed. Thus, the record

supports a finding of Appellant’s intent to participate in Trejo’s murder as a party.

Regarding the combination element, the evidence shows that Appellant and others

participated a continuous course of criminal activity motivated by revenge for the victims’ actions.

This activity lasted at least several days, involved multiple victims, and constituted kidnappings,

physical torture, and murder. In Hall’s and Isaac’s cases, Appellant and others kidnapped them

because they had stolen and pawned tools from Herrera’s truck. In Trejo’s case, his assault,

kidnapping, and eventual murder seem to have stemmed, at least in part, from his sexual assault

14 of Castillo, with whom Appellant had a close relationship to the point where Appellant considered

her like a daughter.

While there is no direct evidence that Appellant herself led the kidnapping, torturing, or

killing of any person, the evidence shows that she was a relatively constant fixture and assisted in

committing these crimes. For example, when Hall was interrogated and physically tortured at the

Alameda apartment, Appellant was present in the room and recorded Hall’s responses on a

notepad, showing her direct involvement in the interrogation process and something more than her

mere presence while the criminal activity was ongoing. Appellant also removed Hall’s blindfold,

gave him food and water, and consumed narcotics with him while he was being imprisoned and

tortured before she eventually released him after warning him not to say anything about his

captivity.

When Trejo was beaten and taken from the Ortega Court house, Appellant appeared shortly

afterward, apologized for the incident, and asked for cleaning supplies, which could reasonably be

inferred to be for concealing the evidence that the assault had been committed. The evidence

further suggests that Appellant took charge of custody over at least Hall and Trejo when they were

being held at the Alameda apartment. And although she expressed reticence about disposing of

Trejo’s body parts (an act constituting the criminal offense of tampering with a human corpse),

she nonetheless directly assisted Filero, Trujillo, and others in doing so. All of this evidence

suggests a continuing course of criminal activities Appellant participated in with at least two other

people, and thus the combination element was proven. See TEX. PENAL CODE ANN. § 71.01(a)(1).

D. Conclusion

15 Given the strength of this circumstantial evidence, the jury could have rationally concluded

that through her words and actions, Appellant intended to act as a party by soliciting, encouraging,

directing, aiding, or attempting to aid in Trejo’s murder. See Clayton, 235 S.W.3d at 778

(recognizing that direct and circumstantial evidence are treated equally and that circumstantial

evidence is as probative as direct evidence in establishing a defendant’s guilt and can alone be

sufficient to establish guilt) (citation omitted). Viewing the evidence in the light most favorable to

the verdict, a rational jury could have found beyond a reasonable doubt that Appellant acted as a

party to Trejo’s murder while intending to participate in a continuous course of criminal activities

with at least two other people, thus establishing Appellant’s guilt of engaging in organized criminal

activity associated with Trejo’s murder through legally sufficient evidence. See Jones v. State,

05- 20-00304-CR, 2022 WL 4376713, at *8–9 (Tex. App.—Dallas Sept. 22, 2022, pet. ref’d)

(mem. op., not designated for publication) (holding that legally sufficient evidence supported the

defendant’s conviction for engaging in organized criminal activity under a combination theory

where the evidence showed the defendant (1) was involved in narcotics trafficking and multiple

murders; (2) participated in the criminal activity through his expressed desire to sell narcotics and

his surveillance of the victims before they were killed; and (3) assisted in covering up the

commission of the offenses).

Accordingly, we overrule Appellant’s first issue.

III. JURY CHARGE

In her second issue, Appellant argues that the jury charge was erroneous because it

permitted the jury to convict her of felony murder based on the predicate offense of aggravated

assault with a culpable mental state of recklessness. Appellant further argues that she was harmed

16 by this error, requiring reversal of the conviction. Although we agree that the charge was

erroneous, the error does not warrant reversal.

A trial court must charge the jury on the law applicable to the case. See TEX. CODE CRIM.

PROC. ANN. art. 36.14; Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011). “Appellate

review of a jury charge error involves a two-step process.” Frias v. State, No. 08-13-00325-CR,

2019 WL 101935, at *3 (Tex. App.—El Paso Jan. 4, 2019, pet. ref’d) (not designated for

publication). First, we must determine whether there was error in the jury charge; second, if there

was error, we must determine whether sufficient harm resulted so as to require reversal. Id.; see

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc).

B. The charge was erroneous

(1) The charge language

Within its abstract section, the charge defined “Murder” as follows.

A person commits “Murder” if he intentionally or knowingly causes the death of an individual; intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

The charge defined “Aggravated Assault” as follows.

A person commits “Aggravated Assault” if the person intentionally, knowingly, or recklessly causes bodily injury to another and the person uses or exhibits a deadly weapon during the commission of the offense or causes serious bodily injury.

Regarding “Engaging in Organized Criminal Activity,” the charge provided:

A person commits “Engaging in Organized Criminal Activity” if, with the intent to establish, maintain, or participate in a combination or in the profits of a

17 combination, he commits or conspires to commit the offense of murder or aggravated kidnapping.

The charge provided the following definitions for culpable mental states:

A person acts “intentionally,” or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.

A person acts “knowingly,” or with knowledge, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

The charge also provided the following language regarding the law of parties:

Under the law of parties, a person is criminally responsible for an offense committed by the conduct of another if “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”

And finally, the application paragraph regarding the count for the engaging-in-organized-criminal-

activity charge read in relevant part as follows.

Now if you find from the evidence beyond a reasonable doubt that on or about the 12th day of September 2016 in El Paso County, Texas the Defendant ERLINDA LUJAN, either acting alone or as a party, did then and there, with intent to establish, maintain, or participate in a combination or in the profits of a combination with Adrian Herrera, Roberto Favela, Romuldo Trujillo, or Steven Ramirez, did then and there commit the criminal offense of Murder . . . then you shall find Defendant ERLINA LUJAN guilty of Engaging in Organized Criminal Activity as alleged in Count I of the Indictment.

(2) Analysis

On appeal, Appellant argues that the charge was erroneous because the felony-murder

portion within the definition of “murder” allowed the jury to convict Appellant of murder by

recklessly committing aggravated assault—a lesser-included offense of manslaughter, which is

statutorily prohibited from use as a predicate offense for felony murder under the “merger”

doctrine. See TEX. PENAL CODE ANN. § 19.02(b)(3) (excluding manslaughter as an available

predicate felony in a felony-murder prosecution); Ghose v. State, Nos. 14-20-00313-CR, 14-20-

18 00314-CR, 2022 WL 320958, at *3 (Tex. App.—Houston [14th Dist.] Feb. 3, 2022, pet. ref’d)

(recognizing that recklessly committed aggravated assault is a lesser-included offense of felony

murder and cannot be used as a predicate offense under the merger doctrine).

Appellant relies on Keen v. State, where the Austin court of appeals considered a jury

charge in a murder prosecution that allowed the jury to convict the defendant of felony murder

with a predicate felony of aggravated assault causing bodily injury with a culpable mental state of

recklessness. No. 03-19-00744-CR, 2021 WL 4819078, at *6 (Tex. App.—Austin Oct. 15, 2021,

pet. ref’d) (mem. op., not designated for publication). The court found that the charge was

erroneous in this regard, reasoning that because recklessly committed aggravated assault and

manslaughter share the same culpable mental state, that form of aggravated assault is a lesser-

included offense of manslaughter (as opposed to either intentionally or knowingly committed

aggravated assault, which are not lesser-included offenses of manslaughter). Id. at *7. The court

further recognized that recklessly committed aggravated assault cannot serve as a predicate felony

for a felony-murder charge. Id. Thus, because the charge’s application paragraphs allowed the jury

to use aggravated assault, and the abstract paragraphs defined aggravated assault as capable of

being proven by recklessness, nothing in the charge prevented the jury from improperly using

reckless aggravated assault as the predicate felony for the felony-murder charge. Id.

The charge before us included “recklessly” as a potential culpable mental state for

committing aggravated assault, which was one felony that could be used as a predicate for felony

murder. And in turn, the charge allowed felony murder as a potential predicate offense for the

charge of engaging in organized criminal activity. These instructions allowed for the jury to

possibly find that Appellant engaged in organized criminal activity by participating in murder,

19 including felony murder, which in turn could have been shown through Appellant’s intentional,

knowing, or reckless commission or attempted commission of aggravated assault. For these

reasons, the inclusion of “recklessly” in the definition of a lesser-included offense of manslaughter

(here, aggravated assault) that could have been used as a predicate offense for felony murder

constituted error under the merger doctrine. See id.

C. The error was not harmful

Although the charge erroneously included “recklessly” in the definition of aggravated

assault, for the following reasons we find that the error was not harmful.

(1) Egregious harm is the appropriate harm standard

For jury-charge error, the applicable harm standard depends on whether the defendant

objected to the error at trial. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Where

the defendant objected to the trial court’s proposed charge, the record must only show “some harm”

to justify reversal. Id. But if the defendant did not object to the error, the error must have been

“fundamental” in nature and must have caused egregious harm to warrant reversal. Id.

During the charge conference at trial, the trial court submitted a proposed definition of

murder as set forth above. Defense counsel objected to the charge and requested that “intends to”

be included immediately before the phrase “commit or attempts to commit [a felony]” within the

definition of murder. When asked why he wanted the language included, defense counsel

responded that “there should be a culpable mental state placed in that definition of murder,” or in

the alternative that the entire section of the definition for felony murder be removed. The State

responded that the proposed addition was unnecessary because the charge’s language properly

tracked TEX. PENAL CODE ANN. § 19.02(b), and the trial court agreed and overruled Appellant’s

20 objection. Defense counsel additionally objected that the language should be removed because the

evidence was insufficient to permit issuance of a charge on felony murder, and the trial court also

overruled that objection.

Although Appellant contends that she properly objected to the jury charge, the State

counters that while Appellant objected to this portion of the charge, she did not specifically object

to the charge’s definition of “aggravated assault” or request that the term “recklessly” be removed

from the charge, which would comport with Appellant’s complaint on appeal. The State argues

that because Appellant failed to properly object to the charge on that basis, the applicable harm

standard is egregious harm. We agree with the State that because Appellant did not specifically

object to the charge on the same basis as her appellate complaint, the standard for reversal is the

less stringent egregious-harm standard. See Reeves, 420 S.W.3d at 816. Regardless, in this case,

there was no reversable error.

(2) Egregious harm not shown

Under both the some-harm and egregious-harm analyses, “the reviewing court . . . [must]

find that the defendant suffered some actual, rather than merely theoretical, harm from the error”

to justify reversal. Id. (citation and internal quotation marks omitted). Actual harm is shown where

the charge error “affected the very basis of the case, deprive[d] the defendant of a valuable right,

or vitally affect[ed] a defensive theory.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App.

2011) (citation and internal quotation marks omitted). When assessing a record for egregious harm,

we examine (1) the entire jury charge; (2) the state of the evidence, including the contested issues

at trial and the weight of the probative evidence; (3) the parties’ arguments; and (4) any other

21 relevant information in the record. Id. (citation omitted); see Almanza, 686 S.W.2d at 171 (setting

forth these factors). We consider each factor in turn.

(a) The jury charge

The charge did not emphasize or even include a definition for the term “recklessly.” Other

than within the definition of “aggravated assault,” the term “recklessly” does not appear elsewhere

in the charge, including within the charge’s application paragraph. Moreover, the charge’s

definition section provided the statutory definitions for “intentionally” and “knowingly,” thus

focusing the jury’s attention on those culpable mental states that would properly support the use

of aggravated assault as the underlying felony for felony murder. See Ghose, 2022 WL 320958, at

*3. Finally, the charge’s application paragraph focused on Appellant’s intent to engage in criminal

activity in a combination, not her recklessness to do so. And absent evidence to the contrary, which

we do not find here, we must presume that the jury followed the trial court’s instructions, including

by applying the definitions for “intentionally” and “knowingly” as they relate to conduct in the

commission of aggravated assault. See Renteria v. State, 206 S.W.3d 689, 707 (Tex. Crim. App.

2006) (a jury is presumed to follow a trial court’s instructions absent evidence suggesting

otherwise).

Considering the charge as a whole, the risk of the jury improperly using recklessness as a

culpable mental state for aggravated assault was minimal, and this factor weighs against a harm

finding. See Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012) (“In a jury charge

alleging alternative theories, harm must be measured at least in part[] against the likelihood that

the jury’s verdict was actually based upon an alternative available theory of culpability not affected

by erroneous portions of the charge.”) (citation and internal quotation marks omitted).

22 (b) The state of the evidence

As recounted above, the record contains legally sufficient evidence that Appellant acted as

a party in engaging in organized criminal activity associated with Trejo’s murder. And as the State

contends, the evidence suggests Appellant’s intent to commit the acts associated with the charged

offense, not her recklessness through her conscious disregard of a substantial and unjustifiable risk

that Trejo’s death would result due to her actions. See TEX. PENAL CODE ANN. § 6.03(c) (“A person

acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but

consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result

will occur.”). This factor also weighs against a finding of harm. See Sanchez, 376 S.W.3d at

775– 76 (recognizing that a defendant is not usually harmed by the submission of erroneous

manner and means of committing an offense if the evidence otherwise suffices to prove any of the

alternative, non-erroneous manners and means of committing the offense).

(c) The parties’ arguments

Like the evidence presented at trial, the parties’ arguments focused on Appellant’s intent

to commit the alleged acts, not her recklessness. During voir dire, the State provided the jury panel

the definitions for and examples of “intentional” and “knowing” behavior, but neither party

mentioned “recklessness” or an example of reckless behavior. Defense counsel also referred to a

defendant’s intent and used hypotheticals to emphasize that culpable mental state, but he did not

refer to recklessness. During closing arguments, defense counsel also referenced his use of “intent”

during voir dire and he argued that Appellant was required to have intentionally committed murder

or kidnapping to be convicted of the engaging-in-organized-criminal-activity charge. Finally,

neither party mentioned recklessness in closing arguments. Because neither party referred to

23 recklessness, the chance that the jury relied on that culpable mental state was correspondingly low,

and this factor also weighs against a finding of harm. See Frias, 2019 WL 101935, at *6

(recognizing that the parties’ emphasis on other issues than the matter forming the basis for charge

error made it unlikely that the error affected the jury’s decision).

(d) Other relevant information

Neither party points us to any other relevant information in the record, and we likewise

find no other information that would aid us in our decision.

In sum, although the charge erroneously contained the term “recklessly,” the majority of

the Almanza factors weigh against a finding of egregious harm. We thus conclude that the error

caused by the inclusion of “recklessly” in the definition for aggravated assault was harmless. See

Keen, 2021 WL 4819078, at *9–10 (holding that a charge’s error in including “recklessly” in a

predicate offense for felony murder was not egregiously harmful where (1) the charge otherwise

instructed the jury properly; (2) the evidence supported the defendant’s intentional and knowing

behavior instead of his reckless behavior; and (3) the prosecutors emphasized the defendant’s

knowing behavior and deemphasized his recklessness).

Accordingly, we overrule Appellant’s second issue.

IV. AUTOPSY PHOTOGRAPHS

In her third issue, Appellant argues the trial court abused its discretion by admitting two

autopsy photographs over her Rule-403 objection. For the following reasons, we disagree.

24 During the trial on punishment, the State announced its intent to offer State’s Exhibits 217,

218, and 219, which consisted of photographs of Trejo’s body taken during his autopsy. Although

Appellant conceded that the photographs were relevant, Appellant’s counsel objected to their

admission on the basis that the probative value of the photographs was outweighed by the risk of

unfair prejudice. The State countered that the photographs were admissible because (1) State’s

Exhibit 217, which showed Trejo’s face in a body bag, revealed the extent of the injuries to his

face; (2) State’s Exhibit 218, which showed Trejo’s body on the medical examiner’s table, depicted

the body as it was found with the head and limbs removed and a restraint on Trejo’s right wrist,

was probative of Trejo’s kidnapping; and (3) State’s Exhibit 219, which showed the lower portion

of Trejo’s torso and his severed legs with a restraint on his left ankle, was also probative of the

kidnapping.

After the parties and the trial court discussed relevant case law on the matter, Appellant

acknowledged that the photographs had probative value but argued that the evidence would

“potentially encourage the jury to make a decision based on an emotional basis.” The court asked

the State if it would withdraw State’s Exhibit 217, and the prosecutor agreed. The trial court

admitted State’s Exhibits 218 and 219 over Appellant’s Rule-403 objection.

B. Standard of review and applicable law

A trial court’s admission of autopsy photographs over a Rule-403 objection is reviewed for

an abuse of discretion. Chavez v. State, No. 08-16-00084-CR, 2018 WL 2715219, at *8

(Tex. App.—El Paso June 6, 2018, pet. ref’d) (not designated for publication) (citing Davis v.

State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010)). An abuse of discretion is not present where

25 the decision to admit or exclude the evidence is within the “zone of reasonable disagreement.”

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc).

Texas Rule of Evidence 403 allows a trial court to exclude otherwise relevant evidence if

its probative value is substantially outweighed by one or more of the following: “unfair prejudice,

confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative

evidence.” TEX. R. EVID. 403. “Rule 403 favors admissibility of relevant evidence, and the

presumption is that relevant evidence will be more probative than prejudicial.” Montgomery, 810

S.W.2d at 389. In performing a Rule-403 analysis, a court

must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

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

In addition to these factors, a trial court should also consider the following when a party

offers autopsy photographs into evidence: “(1) the number of photographs offered, (2) their

gruesomeness, (3) their detail, (4) their size, (5) whether they are black and white or in color, (6)

whether they are close-up, and (7) whether the body depicted is naked or clothed,” as well as the

availability of other means of proof and any other circumstances unique to each case. Chavez,

2018 WL 2715219, at *8 (citing Dawkins v. State, 557 S.W.3d 592, 605–06 (Tex. App.—El Paso

2016, no pet.)); see also Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (recognizing

these factors in considering whether the admission of photographs violates Rule 403).

26 Appellant argues that the record “does not give fair assurance that the erroneously admitted

photographs did not influence the jury or that it influenced the jury only slightly in assessing

appellant’s conviction or punishment.”

The photographs at issue showed Trejo’s body, which had been dismembered with the head

and limbs severed from the torso. Thus, the photographs depicted Trejo’s death and tended to

support Appellant’s participation in the crimes. Moreover, they tended to corroborate Appellant’s

admission that she had sealed plastic bags containing the body parts. The photographs also showed

restraints on Trejo’s wrist and ankle, corroborating other evidence establishing he had been bound

in the Alameda apartment prior to his death. For these reasons, the evidence was probative of

Appellant’s commission of the charged offenses and were useful to the State in proving its case

and corroborating other evidence the State presented.

Lujan contends that the graphic nature of the photographs allowed the jury to render an

improper decision on an emotional basis. Although the photographs were gruesome in that they

showed Trejo’s decomposing body with the head and limbs severed from the torso, the

photographs depicted the nature and circumstances of the offenses Appellant and the other

involved parties committed against Trejo. To that end, nothing in the record indicates the jury was

unequipped to properly evaluate the probative force of the evidence. And although the State

established through other evidence that Trejo had been bound and subsequently buried, the

photographs were not merely cumulative because they tended to corroborate the State’s evidence

and presented a visual picture of what witness testimony could not depict. Moreover, the State did

not take an inordinate amount of time to develop or present the evidence.

27 The photographs were printed in color and showed Trejo’s naked body, potentially

increasing the likelihood of inflaming the jury’s emotions. However, the trial court only admitted

two photographs, reducing the likelihood of unfair prejudice. Additionally, the photographs did

not depict the body’s mutilated state caused by the autopsy. Instead, as Appellant’s interview

statements suggested, the photographs depicted the body as it had been found after one or more of

her collaborators had severed the head and limbs from the torso. Finally, the record indicates that

the prosecutor only held the photographs up rather than use a projector to magnify the photographs

while presenting them to the jury; nothing in the record indicates that they were oversized, shot

from a close-up angle, or otherwise improperly emphasized.

In sum, although the photographs were graphic and likely more graphic than what an

ordinary person is accustomed to seeing on a daily basis, applying the relevant factors to the facts

shows that their admission was not substantially outweighed by the risk of unfair prejudice. We

conclude that the trial court’s decision to admit the photographs was not outside the zone of

reasonable disagreement, and thus no abuse of discretion occurred. See Chavez, 2018 WL

2715219, at *9 (holding that the trial court properly admitted ten autopsy photographs over the

defendant’s Rule-403 objection where the photographs depicted the victim’s injuries, showed the

defendant’s involvement in the victim’s death, and helped to explain a medical examiner’s

testimony regarding her cause of death, notwithstanding the photographs’ gruesome nature, the

fact that they were in color, and the prosecutor’s use of a projector to show the photographs to the

jury).

Accordingly, we overrule Appellant’s third issue.

V. JURY ARGUMENT

28 In her fourth issue, Appellant argues the trial court abused its discretion by overruling her

objection to the prosecutor’s argument comparing Appellant to world leaders who commit murder

and genocide. For the following reasons, we disagree.

A. Standard of review and applicable law

We review a trial court’s ruling on an objection to a jury argument under the same abuse-

of-discretion standard set forth above. See Brodenx v. State, No. 08-13-00140-CR, 2014 WL

6873143, at *2 (Tex. App.—El Paso Dec. 3, 2014, no pet.) (not designated for publication) (citing

Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010)). Proper jury argument generally falls

within one of four areas: (1) summations of the evidence; (2) reasonable deductions from the

evidence; (3) answers to argument of opposing counsel; and (4) pleas for law enforcement. Davis,

329 S.W.3d at 821. We must examine the challenged jury argument in the context in which it

appears. Jackson v. State, 17 S.W.3d 664, 675 (Tex. Crim. App. 2000).

B. Analysis

During closing arguments in the punishment phase of trial, defense counsel argued that

Appellant should receive a reduced sentence because she was not the person who “actually was

doing the acts” or was the “mastermind” behind the offenses but rather that she was only a party

to the offenses. The prosecutor made the following statement in his closing argument:

So [defense counsel] talked about the defendant being a party and that her conduct was just that of a party. And because of that you, should show her mercy. You should be inclined to give her less [punishment] because she didn’t get her hands dirty. Let’s talk about history. We’ve had some horrible world history. I can think of several people that have not gotten their hands dirty that have been responsible for the murder of—

Defense counsel objected that the prosecutor’s argument was inappropriate, and the prosecutor

replied that he was responding to defense counsel’s argument. The trial court overruled the

29 objection, and the prosecutor continued, “There have been many world leaders that have

committed genocide.” Defense counsel objected again because the prosecutor’s argument

inappropriately appealed to the jury’s emotions, and the trial court again overruled the objection

and replied that defense counsel “opened the door . . . [by] trying to say that she was less guilty

because . . . of being a party” and that the prosecutor was “making an analogy.” The prosecutor

then moved on to other matters.

Considering the prosecutor’s remarks in context, we conclude that the prosecutor made the

argument at issue in response to defense counsel’s request that the jury consider a lesser sentence

because Appellant was not the person who directly committed the offenses. The prosecutor’s

argument that world leaders who enlist others to commit genocide are still morally culpable for

their indirect participation in the killing of others was an appropriate analogy to Appellant’s

commission of the offense because although she may not have directly committed the kidnappings

or murder, she nonetheless was a party to the offenses. See Guerrero Lara v. State, No.

13- 01- 099- CR, 2002 WL 1765543, at *4 (Tex. App.—Corpus Christi Aug. 1, 2002, no pet.) (not

designated for publication) (where during the punishment phase, defense counsel’s closing

argument referred to a witness’s testimony that the defendant was a good husband and father and

the State responded with, “This man may have been capable of kindness on some days, but that’s

like saying Adolf Hitler provided for his family or Charles Manson sometimes smiled . . . ,” the

trial court did not err by overruling an objection to the prosecutor’s argument because it was in

response to defense counsel’s argument).

The trial court acknowledged that defense counsel opened the door to the prosecutor’s

remarks, one of the areas of proper jury argument. See Davis, 329 S.W.3d at 821 (“an answer to

30 the argument of opposing counsel” is a general area of permissible jury argument). Because the

trial court was not outside the zone of reasonable disagreement when it overruled Appellant’s

objection to the prosecutor’s argument, the court did not abuse its discretion.

Accordingly, we overrule Appellant’s fourth issue.

VI. CONCLUSION

We affirm the judgment supporting Appellant’s conviction.

LISA J. SOTO, Justice

May 17, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

(Do Not Publish)