Opinion issued May 1, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00507-CR ——————————— LADAMION LAMOND MAJORS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 54th District Court McLennan County, Texas Trial Court Case No. 2020-294-C2
MEMORANDUM OPINION
A jury convicted Ladamion Lamond Majors of the first-degree felony offense
of aggravated robbery.1 See TEX. PENAL CODE § 29.03(a)(3)(A), (b). Majors pleaded
1 Pursuant to its docket-equalization authority, the Texas Supreme Court transferred this appeal from the Tenth Court of Appeals to this Court. See Misc. Docket No. 22- 9050 (Tex. June 30, 2022); TEX. GOV’T CODE § 73.001(a) (authorizing transfer of true to two enhancement paragraphs, and the jury assessed his punishment at life
imprisonment. See id. §§ 12.32(a), 12.42(c)(1), (d). In two issues on appeal, Majors
contends that the trial court reversibly erred by submitting a jury charge that: (1) did
not tailor the culpable mental states to the three conduct elements present in the
offense of aggravated robbery; and (2) did not define “accomplice” or provide a
multiple-accomplice instruction. The State agrees that the charge was erroneous for
these reasons but disagrees that these errors were harmful. We affirm.
Background
S.J. “Sunny” Embery, the complainant, met Lakeisha Price online in 2019. He
lived in Georgia, and she lived in Hewitt, Texas. Embery began developing romantic
feelings toward Price, and he moved to Hewitt to live with her in December 2019.
He signed a lease on a house, and Price and her two children moved in with him.
Embery was eighty years old, and Price was in her late thirties.
Embery testified that on New Year’s Eve 2019, about a week after moving in
with Price, he was at home when the doorbell rang. He went to answer the door, but
Price rushed to the door, knocked Embery’s hand off the door handle, and opened it
herself. Majors, Iriana Rutledge, and Rutledge’s two minor children were at the door.
Embery did not know them. Price had previously dated Majors, but she introduced
cases). We are unaware of any conflict between the precedent of that court and of this Court on any relevant issue. See TEX. R. APP. P. 41.3. 2 him and Rutledge to Embery as her cousins. She told Embery that they were going
to stay at Embery’s house for a while.
Soon after the guests arrived, Majors and Embery were alone on the back patio
when Majors asked Embery if he wanted to meet and sleep with another woman and
have an orgy. Embery declined and said he was “cool” with Price. When they
returned inside, Majors would not let Embery talk to Price or get near her.
Majors and Price left Embery’s house soon after to buy whiskey. They
returned about two hours later and asked Embery to drink with them, but he declined,
prompting Majors to call him a “sissy.” Majors then said that they were leaving but
would return. He left with Price, Rutledge, and Rutledge’s two children while
Embery stayed home alone.
Majors, Price, and Rutledge returned to Embery’s house around dusk. Embery
opened the front door and, as he did so, Majors immediately confronted Embery,
asking what he had told Price. Majors got behind Embery and grabbed him. Embery
laughed because he believed Majors was kidding. He told Majors that he did not tell
Price anything, but Majors called him a liar. So Embery said that he had told Price
“just what you [Majors] asked me, about another woman for me.” Majors then
“started it.” He pushed Embery against a wall. As Embery fell, Price and Rutledge
grabbed him by the arms, and Majors hit him on the side of his head with “a hard
3 lick.”2 Embery was dazed, but he refused to go down because he was afraid for his
life.
When he hit Embery, Majors asked him, “Where’s my $500 at?” Embery
asked, “What $500?” Majors responded, “You owe me $500,” but Embery said he
did not owe Majors anything. Majors again demanded $500 from Embery. Price told
Embery that he was “gonna give [Majors] the $500. Make it easy on yourself.”
Embery asked why he would give Majors $500, and Majors said, “[Y]ou and me
made a deal, $500 to have sex with my girl.” Embery said, “Man, there ain’t no
woman in the world I’d pay $500 for no sex.”
Majors went outside and “came back in with a shotgun wrapped up in a
blanket.” As he removed the shotgun from the blanket, Embery grabbed the blanket,
it came off the shotgun, and Majors “threw the shotgun up.” Price grabbed the barrel
of the gun and told Majors to put it down. Majors put the gun on the floor and “ran
into [Embery] again,” causing Embery to fall to the floor. Embery was dazed and
could not get up. But he was a former Marine, so he decided to defend himself like
he had learned in the service. When Majors tried to hit him again, Embery reached
up, grabbed Majors’ head, and pulled it down to his chest. Holding Majors on top of
him, Embery “[tried] to suffocate” Majors, and Majors “couldn’t breathe.” Embery
2 Embery testified that he was unsure whether Majors hit him with his fist or with the butt of a shotgun. 4 “just started squeezing on him. And [Majors] started kicking.” Realizing Majors
could not breathe, Price and Rutledge told Embery he was going to kill Majors, so
they pried Embery’s hands loose. The fight ended, and Embery got up from the floor.
Embery announced that he was going to call the police and grabbed his cell
phone, but Price said he was not going to call the police. She knocked the phone out
of his hand and took it. Embery went into the garage and got inside his van. He heard
Majors tell Price and Rutledge to stop him, so they followed him into the garage.
Embery locked the door, started the van, and drove off while Price and Rutledge
were “still hanging on the van.” Embery drove to a nearby Walmart, and a store
manager called the police for him.
Hewitt Police Officers Yasmin Rahim and Michael Ordonez responded to the
call and met Embery in the Walmart parking lot. Rahim and Ordonez testified that
they observed a large contusion on the side of his head that was bruised and swollen.
They also saw minor cuts and bruises on his arms and wrists. The officers took
Embery to the police station, where they photographed his injuries and obtained a
written statement. The photographs and the written statement were admitted into
evidence at trial. Embery testified that he hurt for a couple months after the incident.
Embery also identified Majors and Price from their driver’s license
photographs, and he identified a red car that Rutledge was driving. The officers
asked Embery to stay at a hotel for the night out of concern for his safety, but Embery
5 declined. So the officers escorted him home and searched the house to make sure no
one was there. They also decided to conduct additional patrols around Embery’s
house that night.
Around 5 a.m. the following morning on New Year’s Day, Hewitt Police
Sergeant Stephen Cooney was patrolling near Embery’s house. He saw Rutledge’s
red car arrive at Embery’s house, and he recognized Majors, Price, and another
woman—later identified as Rutledge—try to go in the front door of Embery’s house.
Cooney requested backup and approached the three suspects. Majors, Price, and
Rutledge initially refused to comply with Cooney’s orders to lie on the ground, but
Cooney was eventually able to arrest them. When backup officers arrived, Cooney
searched Rutledge’s car and found Majors’ shotgun unloaded and wrapped in a
blanket in the trunk.
Embery awoke around 6 a.m. to red lights outside his house. He went outside
and saw that policed had arrested Majors, Price, and Rutledge and had confiscated
the shotgun. Police officers also confiscated five or six phones on the three suspects.
Embery found his phone, which Price had taken from him, and police let him have
it. Embery moved back to Georgia that day “when the daylight came.” He later tried
to reconcile with Price, but he realized he made a mistake when she “tried to
proposition [him] out of some more money.”
6 At some point, Embery wrote a letter to Price’s attorney stating that he did not
believe Price was involved in the incident but instead had tried to save his life. The
letter was not admitted into evidence, but Embery testified that he wrote the letter to
minimize Price’s involvement in the incident because he still had feelings for her.
He later realized, however, that Price was not helping him because she only grabbed
Embery while Majors attacked him. If she had been trying to save him, she also
would have grabbed Majors. He realized that she was attacking him and trying to
hurt him, she and Rutledge scratched his wrist, and she took his phone and tried to
stop him when he got in his van. He clarified at trial that Majors had hit him in the
head.
In February 2019, Majors was indicted for the first-degree felony offense of
aggravated robbery. The indictment alleged that Majors, “while in the course of
committing theft of property and with intent to obtain or maintain control of the
property, intentionally, knowingly, and recklessly cause[d] bodily injury to S.J.
Embery, a person 65 years of age or older, by grabbing or kicking or striking or
pushing him.” The indictment contained two enhancement paragraphs alleging that
Majors had been finally convicted of two prior felonies: aggravated assault and
assault on a public servant. Majors was arrested pursuant to an arrest warrant.
7 Price and Rutledge were also arrested and indicted as accomplices. However,
the State dismissed the charges against them in exchange for their testimony against
Majors.
At trial, Embery, Price, Rutledge, and the three police officers—Rahim,
Ordonez, and Cooney—testified as witnesses. Neither Majors nor the State objected
to the jury charge.
The jury found Majors guilty of aggravated robbery. During the punishment
phase, Majors pleaded true to both prior felony convictions alleged in the
enhancement paragraphs. The jury sentenced Majors to life imprisonment. He did
not file any post-judgment motions. This appeal followed.3
Jury Charge
In two issues on appeal, Majors contends that the trial court erred by
submitting erroneous jury charge instructions.4
3 Majors’ initial appointed appellate counsel filed an Anders brief in this Court arguing that the appeal is wholly frivolous, and counsel moved to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). We reviewed the record and determined that nonfrivolous issues may exist. See id. We struck the Anders brief, granted the motion to withdraw, abated the appeal, and remanded the case to the trial court to appoint new appellate counsel. See id. 4 In addition to raising these two issues, Majors’ appellate brief includes an Anders analysis arguing that no additional issues of reversible error exist in the record. According to Majors, the Tenth Court of Appeals from which this appeal originated requires this additional analysis even when an appellant raises issues of reversible error. See TEX. R. APP. P. 41.3. We disagree. See Cummins v. State, 646 S.W.3d 605, 614 (Tex. App.—Waco 2022, pet. ref’d) (stating that appellant must file brief raising issue of reversible error or file Anders brief, and “nonreversible errors can 8 A. Standard of Review and Governing Law
The trial court must deliver to the jury “a written charge distinctly setting forth
the law applicable to the case.” TEX. CODE CRIM. PROC. art. 36.14. Jury instructions
must inform the jury of the applicable law and how to apply it to the facts adduced
at trial. Alcoser v. State, 663 S.W.3d 160, 164–65 (Tex. Crim. App. 2022).
Jury charges contain both abstract paragraphs and application paragraphs. Id.
at 165. Abstract paragraphs “serve as a glossary to help the jury understand the
meaning of concepts and terms used in the application paragraphs of the charge.” Id.
(quoting Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012)).
Generally, an abstract instruction contains reversible error only when the instruction
is an incorrect or misleading statement of a law that the jury must understand to
implement the commands of the application paragraph. Id. (quotation omitted).
Application paragraphs, on the other hand, apply the “pertinent penal law,
abstract definitions, and general legal principles to the particular facts and the
indictment allegations.” Id. (quotation omitted). The application portion allows the
jury to convict a defendant of a particular offense. Crenshaw, 378 S.W.3d at 466.
Appellate courts analyze claims of jury-charge error in two steps. Alcoser, 663
S.W.3d at 165. First, the court determines whether the charge contained error,
be raised in an Anders brief”). Because Majors raises issues of reversible error, we decline to address the Anders analysis on appeal. 9 regardless of whether the error was preserved. Id. If error exists, the court then
determines whether the error caused the appellant harm. Id.; see Hutch v. State, 922
S.W.2d 166, 174 (Tex. Crim. App. 1996) (“A defendant is entitled to be convicted
upon a correct statement of the law.”).
Where, as here, the defendant did not object to the alleged jury charge error
in the trial court, the defendant must demonstrate that any error caused “egregious
harm.” Alcoser, 663 S.W.3d at 165 (quotation omitted). To assess harm, we consider
(1) the entire jury charge; (2) the state of the evidence, including the contested issues
and weight of the probative evidence; (3) the argument of counsel; and (4) any other
relevant information revealed by the trial record as a whole. Id. (quotation omitted).
A finding of egregious harm must be based on actual harm rather than
theoretical harm. Id. (quotation omitted). Egregious harm is a difficult standard to
meet, and the analysis is fact-specific. Id. Jury charge error causes egregious harm
if it affects the very basis of the case, deprives the accused of a valuable right, or
vitally affects a defensive theory. Id. Neither party bears the burden to show harm.
Id.
B. Conduct Elements
In his first issue, Majors argues that the jury charge was erroneous because
the definitions of the applicable culpable mental states were not tailored to each
10 conduct element to which they applied. The State agrees that the mental-state
definitions in the charge were erroneous, but it argues that the error was harmless.
Majors was charged with aggravated robbery. As relevant here, a person
commits aggravated robbery if the person both commits robbery and causes bodily
injury to another person who is 65 years of age or older. TEX. PENAL CODE
§ 29.03(a)(3)(A). A person commits robbery “if, in the course of committing theft
as defined in Chapter 31 and with intent to obtain or maintain control of the property,
he . . . intentionally, knowingly, or recklessly causes bodily injury to another.” Id.
§ 29.02(a)(1); see id. §§ 29.01(1) (defining “in the course of committing theft” as
“conduct that occurs in an attempt to commit, during the commission, or in
immediate flight after the attempt or commission of theft”), 31.03(a) (defining theft
as unlawful appropriation of property with intent to deprive owner of property).
A conduct element is an element of the offense that criminalizes a defendant’s
conduct. See McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989); Fields
v. State, 966 S.W.2d 736, 739 (Tex. App.—San Antonio 1998), rev’d on other
grounds, 1 S.W.3d 687 (Tex. Crim. App. 1999). Penal Code section 6.03 recognizes
three conduct elements: nature of conduct; result of conduct; and circumstances
surrounding conduct. TEX. PENAL CODE § 6.03; see McQueen, 781 S.W.2d at 603.
A particular criminal offense “may contain any one or more of these ‘conduct
elements’ which alone or in combination form the overall behavior which the
11 Legislature has intended to criminalize.” McQueen, 781 S.W.2d at 603. “[I]t is those
essential ‘conduct elements’ to which a culpable mental state must apply.” Id.
A nature-of-conduct element refers to “specific acts [that] are criminalized
because of their very nature” rather than a specified result, and the applicable
“culpable mental state must apply to committing the act itself.” Id.; Hill v. State, 265
S.W.3d 539, 542 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). A result-of-
conduct element does not specify the nature of the conduct, which is inconsequential
to the commission of the crime. Hill, 265 S.W.3d at 542. The unspecified conduct is
“criminalized because of its result” and “requires culpability as to that result.”
McQueen, 781 S.W.2d at 603; see Hill, 265 S.W.3d at 542. A circumstances-
surrounding-conduct element refers to “otherwise innocent behavior [that] becomes
criminal because of the circumstances under which it is done,” and “a culpable
mental state is required as to those surrounding circumstances.” McQueen, 781
S.W.2d at 603; see Hill, 265 S.W.3d at 542.
Section 6.03 also recognizes four culpable mental states applicable to criminal
offenses. TEX. PENAL CODE § 6.03. Three of the culpable mental states are relevant
here: acting intentionally, acting knowingly, and acting recklessly. See id. § 6.03(a)–
(c). Section 6.03 defines these culpable mental states by reference to the various
conduct elements:
(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his 12 conscious objective or desire to engage in the conduct or cause the result. (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. (c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or 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. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
The abstract portion of a jury charge must include definitions of the culpable
mental states relevant to the charged offense, and the definitions must be tailored to
the applicable conduct elements of the offense. Price v. State, 457 S.W.3d 437, 441
(Tex. Crim. App. 2015); Hill, 265 S.W.3d at 541–42. Even if the charged offense
contains all three conduct elements, a trial court errs if it does not limit each mental-
state definition to the applicable conduct element. Patrick v. State, 906 S.W.2d 481,
492 (Tex. Crim. App. 1995); Herrera v. State, 527 S.W.3d 675, 678 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d).
13 Aggravated robbery contains all three conduct elements: causing bodily injury
is a result-of-conduct element;5 unlawful appropriation is a nature-of-conduct
element; and requiring that an injury occur in the course of committing a theft is a
circumstances-surrounding-conduct element. Herrera, 527 S.W.3d at 678; Sutton v.
State, No. 01-07-00776-CR, 2008 WL 5102374, at *6 (Tex. App.—Houston [1st
Dist.] Dec. 4, 2008, pet. ref’d) (mem. op., not designated for publication).
Here, the jury charge defined the three applicable culpable mental states—
intentionally, knowingly, and recklessly—by quoting nearly verbatim their entire
statutory definitions, which appear in the block quote above. See TEX. PENAL CODE
§ 6.03(a)–(c). The charge thus included all three conduct elements and specified
which mental state applied to the various conduct elements:
• “Intentionally” applied to nature-of-conduct and result-of-conduct elements; • “Knowingly” applied to nature-of-conduct, circumstances-surrounding- conduct, and result-of-conduct elements; and • “Recklessly” applied to circumstances-surrounding-conduct and result-of- conduct elements.
As Majors acknowledges, the definitions thus correctly stated the law and tracked
the statutory definitions of the culpable mental states.
5 Majors does not address whether causing bodily injury to a person who is 65 years of age or older is a separate conduct element of the charged offense. See TEX. PENAL CODE § 29.03(a)(3)(A). Our research has not revealed any relevant authority on this point. We do not address this issue because it is unnecessary to our disposition. See TEX. R. APP. P. 47.1. 14 The mental-state definitions in the charge did not, however, state which
culpable mental state applied to each conduct element involved in the offense of
aggravated robbery. For example, Majors argues that a correct definition of the
“causing bodily injury” element would have instructed the jury that this element is
a result-of-conduct element and defined the applicable mental states accordingly.
Thus, an example of an appropriate jury charge would read:
The following definitions apply to the mental state in causing bodily injury: A person acts intentionally, or with intent, with respect to a result of his conduct when it his conscious objective or desire to cause the result. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. 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 result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
See Herrera, 527 S.W.3d at 679 (providing same example for culpable mental states
of acting intentionally and acting knowingly); see also Hughes v. State, 897 S.W.2d
285, 296 n.16 (Tex. Crim. App. 1994) (providing similar example of charge limiting
definitions of culpable mental states for charged offense of capital murder); Fields,
966 S.W.2d at 739. The charge should also provide similar instructions for the
15 remaining elements of the offense, applicable mental states, and applicable conduct
elements. Herrera, 527 S.W.3d at 679.
We therefore agree with the parties that the jury charge contained error
because it did not tailor the definitions of the applicable culpable mental states to
indicate which conduct element applied to each element of aggravated robbery.
On appeal, Majors concedes that he did not object to the jury charge in the
trial court, and thus the error is reversible only if he suffered egregious harm. See
Alcoser, 663 S.W.3d at 165. Majors’ entire argument concerning harm in this issue
states: “This error permitted the jury to convict on an incorrect application of law.”
The State responds that the jury charge otherwise applied the mental states to the
various conduct elements; the abstract portions of the charge properly defined terms
relevant to the charged offense; the evidence supported the jury’s finding that Majors
committed aggravated robbery; and Majors’ mental state was not in dispute at trial.6
6 Alternatively, the State appears to argue that Majors waived this issue because he did not provide any argument or record citations showing how he was harmed by the mental-state instructions. Generally, an appellant’s brief “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). The Court of Criminal Appeals has held that an appellant’s failure to address harm resulting from jury- charge error constitutes inadequate briefing resulting in waiver of the issue. Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). However, Cardenas was decided before the court decided Warner v. State, which clarified that “[t]o dispel any lack of clarity in our cases, we affirm that burdens of proof or persuasion have no place in a harm analysis” of jury charge error. 245 S.W.3d 458, 464 (Tex. Crim. App. 2008); accord Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022) (“Neither party bears the burden to show harm.”). At least one of our sister courts has questioned the validity of Cardenas, which “was decided [when] an 16 As stated above, when addressing harm, we consider the entire jury charge;
the state of the evidence, including contested issues and the weight of the probative
evidence; the argument of counsel; and any other relevant information provided by
the trial record as a whole. Id.
1. Jury Charge as a Whole
When “assessing harm resulting from the inclusion of improper conduct
elements in the definitions of culpable mental states, we may consider the degree, if
any, to which the culpable mental states were limited by the application portions of
the jury charge.” Hughes, 897 S.W.2d at 296 (quotations omitted).
The application paragraph informed the jury that it could convict Majors if it
found, among other elements, that he “intentionally, knowingly, or recklessly
cause[d] bodily injury” to Embery “by grabbing or kicking or striking or pushing
him.” This is a result-of-conduct element. Herrera, 527 S.W.3d at 678. Each
definition of the culpable mental states in the jury charge provided a definition
corresponding to a result-of-conduct element. When these definitions are viewed in
their factual context, it is apparent that causing bodily injury is a result-of-conduct
appellant arguably had the burden of persuasion to show harm on charge error. But that is no longer true.” Franklin v. State, No. 02-23-00105-CR, 2024 WL 976800, at *1 n.2 (Tex. App.—Fort Worth Mar. 7, 2024, no pet.) (mem. op., not designated for publication) (relying on Warner and other cases). Neither party provides any legal authority or analysis concerning whether the Court should rely on Rule 38.1 and Cardenas or Warner and Alcoser in determining whether Majors waived error. Because the State’s appellate brief addresses harm for this issue, we will consider it. 17 element. See Hughes, 897 S.W.2d at 296. “Intentionally,” “knowingly,” and
“recklessly” directly modified “cause[d] bodily injury,” and the jury could refer to
the definitions of the culpable mental states and infer that the “result of conduct” and
“cause the result” language in each definition of the culpable mental states were the
applicable portions of the definitions. See id. Moreover, the application paragraph
specifically described the manner and means of the committing the offense—“by
grabbing or kicking or striking or pushing him”—which tends to limit the culpable
mental states to the result of Majors’ conduct. See Ash v. State, 930 S.W.2d 192, 195
(Tex. App.—Dallas 1996, no writ).
The application paragraph required the element of unlawful appropriation to
occur “with intent to obtain and maintain control of the [unlawfully appropriated]
property.” This is a nature-of-conduct element. Herrera, 527 S.W.3d at 678. The
intent definition provided that a person acts with intent “with respect to the nature
of his conduct . . . when it is his conscious objective or desire to engage in the
conduct.” The abstract portion of the charge also defined “appropriation” as “to
acquire or otherwise exercise control over property other than real property.”
Viewing these definitions in their factual context, it is apparent that unlawful
appropriation is a nature-of-conduct element. In the application paragraph, “intent”
directly modified “to obtain and maintain control” of stolen property. The definition
of “appropriation” confirmed that acquiring or exercising control over property is
18 the gravamen of this element. The jury could infer that “nature of his conduct” and
“conscious objective or desire to engage in the conduct” was the applicable portion
of the definition of intent. Cf. Hughes, 897 S.W.2d at 296.
Finally, the application paragraph included the element of causing bodily
injury while “in the course of committing theft.” This element is a circumstances-
surrounding-conduct element. Herrera, 527 S.W.3d at 678. The abstract portion of
the charge defined acting “knowingly” with respect to circumstances surrounding
conduct as being “aware . . . that the circumstances exist,” and it defined acting
“recklessly” with respect to circumstances surrounding conduct as being “aware of
but consciously disregard[ing] a substantial and unjustifiable risk that the
circumstances exist[.]” The abstract portion also defined “in the course of
committing theft” as “conduct that occurs in an attempt to commit, during the
commission, or in immediate flight after the attempt or commission of theft.”
Viewing these definitions in their factual context, it is apparent that the “in the course
of committing theft” element is a circumstances-surrounding-conduct element. Cf.
Hughes, 897 S.W.2d at 296. The definition of “in the course of committing theft”
clarified that this element applied to circumstances surrounding a theft, and the
definitions of knowingly and recklessly likewise clarified that the relevant conduct
element was the circumstances surrounding the theft.
19 Thus, viewing the jury charge as a whole weighs in favor of finding that no
egregious harm resulted from the failure to tailor the mental state definitions to the
applicable conduct elements of the offense. See Alcoser, 663 S.W.3d at 165 (stating
that abstract instruction contains reversible error only when it contains incorrect or
misleading statement of law that jury must understand to implement commands of
application paragraph).
2. State of the Evidence and Counsel Argument
None of the contested issues at trial or the arguments of counsel focused on
whether Majors acted with the requisite mental states. See Herrera, 527 S.W.3d at
680 (“The issue of appellant’s mental state was not at all a focus of the trial or the
closing arguments.”); Ash, 930 S.W.2d at 195. Embery, Price, and Rutledge all
consistently testified that Majors demanded $500 from Embery. When Embery
refused and said he did not owe Majors any money, Majors punched Embery in the
head and brandished a shotgun. Officers Rahim and Ordonez, who met Embery in
the Walmart parking lot, testified that they observed injuries to Embery, including a
swollen, bruised contusion on his head.
Defense counsel’s cross-examination of the witnesses focused on establishing
whether the officers interviewed Price after she was arrested, whether they searched
Majors after he was arrested, whether Majors was trying to enter Embery’s house
before he was arrested, and whether the shotgun was loaded when police found it.
20 Defense counsel cross-examined Embery on whether Price attacked him, injured
him, took his phone, and tried to stop him leaving in his van. Counsel cross-
examined Price on her prior convictions and trustworthiness, whether a theft was
completed, and whether she injured Embery. Counsel also established that Price was
under the influence of drugs during the robbery attempt and that Rutledge was
arrested on New Year’s Day following the incident for her participation in the
aggravated robbery and for possession of Ecstasy, a controlled substance. Defense
counsel’s examination of witnesses did not focus on whether Majors acted with the
requisite mental culpability concerning the three conduct elements involved in
aggravated robbery.
Moreover, defense counsel’s closing argument made two primary points
unrelated to Majors’ mental culpability. First, counsel argued that Embery, Price,
and Rutledge offered confusing testimony: “It was almost like three people were in
a different place.” Second, counsel argued that Majors did not commit a robbery at
all because Price—not Majors—took Embery’s phone. Defense counsel did not,
however, address the testimony that Majors had demanded $500 from Embery.
Rather, counsel agreed that Majors may have attempted to take something from
Embery, but she argued that this attempt did not constitute the offense of aggravated
robbery.
21 The State’s closing argument summarized parts of the jury charge including
the definitions of culpable mental states, but the State did not delineate the culpable
mental states and conduct elements for each element of the charged offense. The
State also argued that attempted theft is sufficient for an aggravated robbery offense.
Therefore, neither the trial evidence nor the argument of counsel focused on
or disputed whether Majors acted with the requisite culpable mental states for each
conduct element. Moreover, the State’s case against Majors was strong, and Majors
did not dispute that he attempted to steal $500 from Embery or that he punched
Embery in the head when Embery refused to pay him. See Campbell v. State, 664
S.W.3d 240, 252 (Tex. Crim. App. 2022) (concluding that state of evidence weighed
against finding of egregious harm because “State’s case for guilt was exceedingly
strong”); Campbell v. State, 227 S.W.3d 326, 331 (Tex. App.—Houston [1st Dist.]
2007, no pet) (concluding that state of evidence weighed against finding of egregious
harm because testimony of defendant’s assaultive actions was uncontradicted, and
“the overwhelming weight of the evidence supported the jury’s verdict”). Thus,
these factors also weigh against a finding of egregious harm.
3. Other Relevant Information
Nothing in the appellate record indicates that the jury was confused by the
charge, specifically the mental state definitions. See Torres v. State, 691 S.W.3d 138,
154 (Tex. App.—Austin 2024, pet. ref’d). During its deliberations in the guilt-
22 innocence phase, the jury sent four notes to the trial court. Two of the notes requested
to review evidence, but none of the notes concerned the jury instructions. See
Murrieta v. State, 578 S.W.3d 552, 556 (Tex. App.—Texarkana 2019, no pet)
(noting that “the jury did not send any notes to the trial court regarding” challenged
jury instructions); Shavers v. State, 985 S.W.2d 284, 292 (Tex. App.—Beaumont
1999, pet. ref’d) (“There is no evidence the jury was confused about the instructions
in the charge.”).
We conclude that the appellate record does not establish that the erroneous
failure to tailor the definitions of culpable mental states to the applicable conduct
elements caused actual harm to Majors that affected the very basis of the case,
deprived him of a valuable right, or vitally affected his defensive theory. See Alcoser,
663 S.W.3d at 165. We therefore hold that the charge error concerning the mental-
state definitions is harmless.
We overrule Majors’ first issue.
C. Accomplice-Witness Instructions
In his second issue, which contains two sub-issues, Majors argues that the
accomplice instructions were erroneous because they (1) omitted a definition of
accomplice and (2) omitted a multiple-accomplice instruction prohibiting the jury
from using one accomplice-witness’s testimony to corroborate the other accomplice-
witness’s testimony. The State implicitly concedes that the charge erroneously
23 omitted a definition of accomplice and explicitly concedes that the charge
erroneously omitted a multiple-accomplice instruction. The parties dispute whether
the error caused harmed Majors.
“An accomplice is a person who participates in the offense before, during, or
after its commission with the requisite mental state.” Smith v. State, 332 S.W.3d 425,
439 (Tex. Crim. App. 2011). An accomplice “must have engaged in an affirmative
act that promotes the commission of the offense that the accused committed.” Id.
Texas law prohibits a conviction “upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed.” TEX. CODE CRIM. PROC. art. 38.14. This corroboration requirement
reflects “a legislative determination that accomplice testimony implicating another
person should be viewed with a measure of caution, because accomplices often have
incentives to lie, such as to avoid punishment or shift blame to another person.”
Zamora v. State, 411 S.W.3d 504, 509 (Tex. Crim. App. 2013) (quotation omitted).
If the trial evidence raises an issue of a witness’s status as an accomplice, the trial
court must instruct the jury regarding the corroboration requirement because it is law
applicable to the case. Id. at 513 (quotation omitted). The required jury instruction
depends on the particular facts of each case. Id. at 510.
A witness may be an accomplice as a matter of law or as a matter of fact. Id.
“A witness is an accomplice as a matter of law when the witness has been charged
24 with the same offense as the defendant or a lesser-included offense, or when the
evidence clearly shows that the witness could have been so charged.” Id. (quotations
omitted). If the State charges a witness with the same or a lesser-included offense
but dismisses the charges, the witness is no longer an accomplice as a matter of law
unless the State dismissed the charges in exchange for the witness’s testimony
against the defendant. Ash v. State, 533 S.W.3d 878, 884 (Tex. Crim. App. 2017). If
a witness is an accomplice as a matter of law, the trial court instructs the jury that
the witness is an accomplice and that the accomplice’s testimony must be
corroborated. Zamora, 411 S.W.3d at 510.
By contrast, a witness is an accomplice as a matter of fact when the evidence
is conflicting or inconclusive regarding the witness’s complicity in the defendant’s
charged offense. Id. The jury must decide whether the witness is an accomplice and
then apply the corroboration requirement accordingly. Id.
When multiple accomplices testify at trial, one accomplice’s testimony cannot
corroborate that of another accomplice. Chapman v. State, 470 S.W.2d 656, 660
(Tex. Crim. App. 1971); Taylor v. State, 7 S.W.3d 732, 736 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref’d); see TEX. CODE CRIM. PROC. art. 38.14 (prohibiting
conviction based “upon the testimony of an accomplice unless corroborated by other
evidence tending to connect the defendant with the offense committed”). In this
circumstance, the jury charge must instruct the jury that it cannot use one
25 accomplice’s testimony to corroborate another accomplice’s testimony. Aston v.
State, 656 S.W.2d 453, 454 (Tex. Crim. App. 1983); Taylor, 7 S.W.3d at 736.
1. Definition of Accomplice
In this case, the jury charge instructed the jury that Price and Rutledge were
both accomplices as a matter of law, and the parties do not challenge this instruction.
See Ash, 533 S.W.3d at 884. The parties agree that the charge did not define
“accomplice” or indicate that Price and Rutledge had each engaged in affirmative
acts promoting the aggravated robbery against Embery with the requisite mental
state. See Smith, 332 S.W.3d at 439. Although the charge stated that Price and
Rutledge were accomplices as a matter of law, it was important for the jury to fully
understand that Price and Rutledge were not merely witnesses to the offense. Rather,
they were active participants who had been charged with aggravated robbery, but
the charges were dismissed in exchange for their trial testimony against Majors. See
Zamora, 411 S.W.3d at 509 (emphasizing legislative determination that “accomplice
testimony implicating another person should be viewed with a measure of caution,
because accomplices often have incentives to lie, such as to avoid punishment or
shift blame to another person”). We conclude that it was error to omit a definition of
accomplice tailored to the facts of this case. See Zamora, 411 S.W.3d at 510.
Majors does not provide any argument showing how he was harmed, much
less egregiously harmed, by the omission of a definition of accomplice. The State
26 argues that the omission was harmless because the meaning of accomplice was clear
from the charge’s context, and counsel’s argument cautioned the jurors to be vigilant
of the corroboration requirement.
We disagree with the State that the meaning of accomplice was clear from the
context of the charge. Nothing in the jury charge stated or implied that Price and
Rutledge had been indicted for actively participating in the aggravated robbery with
the requisite mental culpability but the indictments were dismissed in exchange for
their testimony. See Ash, 533 S.W.3d at 884. Rather, the charge merely stated that
based upon “the law of accomplice witness testimony,” Price and Rutledge were
accomplices as a matter of law, and their testimony therefore must be corroborated.
Nevertheless, during its closing argument, the State referenced the
accomplice-witness instruction in the jury charge, reiterated that both Price and
Rutledge were accomplices as a matter of law, and stated that “[t]hey both were
indicted for the same offense as Ladamion Majors and so they are accomplices.”
Moreover, Price and Rutledge each testified that they had been indicted for
aggravated robbery and that the indictments against them had been dismissed in
exchange for their truthful testimony against Majors. Price also testified that she took
Embery’s phone from him during the incident, and Rutledge testified that both she
and Price held Embery’s arms down while Majors attacked him, which caused
injuries to Embery’s wrists or arms.
27 Reviewing the appellate record as a whole—including the entire jury charge,
the state of the evidence, argument of counsel, and other relevant information—the
jury possessed the requisite information to understand that Price and Rutledge were
accomplices as defined by Texas law. See id. Accordingly, we conclude that the
record does not show that Majors was harmed, much less egregiously harmed, by
the charge’s omission of an accomplice definition. See Alcoser, 663 S.W.3d at 165.
We therefore hold that this charge error is harmless.
2. Multiple-Accomplice Instruction
The jury charge also omitted a multiple-accomplice instruction prohibiting the
jury from using one accomplice’s testimony to corroborate the other accomplice’s
testimony. See Chapman, 470 S.W.2d at 660; Taylor, 7 S.W.3d at 736. The charge
instructed the jury that Price was an accomplice as a matter of law and that her
testimony must be “corroborated by other evidence tending to connect [Majors] with
the offense charged.” In separate paragraphs, the charge likewise instructed the jury
that Rutledge was an accomplice as a matter of law and that her testimony had to be
“corroborated by other evidence tending to connect [Majors] with the offense
charged.” But the charge did not prohibit the jury from using Price’s testimony to
corroborate Rutledge’s testimony or vice versa. See Aston, 656 S.W.2d at 454;
Taylor, 7 S.W.3d at 736. We conclude that the charge was erroneous for omitting
this multiple-accomplice instruction.
28 Majors argues that omission of the multiple-accomplice instruction caused
him egregious harm because only three witnesses testified about the offense—
Embery, Price, and Rutledge—and “Embery’s prior conflicting statements create[d]
a credibility problem for his testimony.” Thus, to convict him, the jury was required
to rely solely on Price’s and Rutledge’s testimony. The State responds that Price’s
and Rutledge’s testimony “essentially agreed with” and was therefore corroborated
by Embery’s testimony.
To assess whether the erroneous omission of a multiple-accomplice
instruction caused reversible harm, we eliminate from our consideration the
accomplices’ testimony, examine the remaining trial evidence, and decide whether
the remaining evidence tended to connect the defendant with the charged offense.
Chapman, 470 S.W.2d at 660; Taylor, 7 S.W.3d at 737; see TEX. CODE CRIM. PROC.
art. 38.14 (prohibiting conviction upon testimony of accomplice unless corroborated
by other evidence “tending to connect” defendant to charged offense). “Tendency to
connect” does not require that the corroborating evidence alone be legally sufficient
to establish guilt. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)
(stating that “accomplice-witness rule is not based upon federal or state
constitutional notions of sufficiency”).
Embery testified that he was eighty years old on New Year’s Eve 2019 when
Majors and Rutledge appeared at his home. Embery had never met Majors or
29 Rutledge, and Price introduced them to Embery as her cousins. While alone with
Embery shortly after arriving, Majors propositioned Embery to meet another woman
or have an orgy, but Embery declined because he liked Price. Soon after, Majors and
Price left Embery’s house to buy whiskey, and they returned about two hours later.
When Embery refused to drink alcohol with them, Majors insulted Embery and
decided to leave Embery’s house with Price and Rutledge.
When they returned several hours later, Majors immediately confronted
Embery by asking what he had told Price. Embery initially denied telling Price
anything, but then he said that he told Price “just what you [Majors] asked me, about
another woman for me.” And then Majors “started it.” He pushed Embery against
the wall and, as Embery fell, Price and Rutledge grabbed Embery by his arms while
Majors hit him with a “hard lick” on the side of his head, causing a “big knot.”
Majors then demanded $500 from Embery. Embery told Majors he did not owe him
any money, but Majors demanded the money again. Price told Embery to give
Majors $500 to “[make] it easy on” himself. Embery asked why he would give
Majors $500, and Majors said because “you and me made a deal, $500 to have sex
with my girl.” Embery told Majors he would not pay $500 to sleep with any woman.
Majors then retrieved a shotgun from Rutledge’s car and pointed it at Embery.
At Price’s demand, Majors put the gun down, but he attacked Embery again and
caused Embery to fall on the floor. Embery defended himself, effectively ending
30 Majors’ attack. Embery got his cell phone and said he was calling the police, but
Price knocked his cell phone out of his hand, took the phone, and told Embery that
he was not going to call anyone. Embery eventually went into the garage and entered
his van, but Majors told Price and Rutledge to stop him. Their attempt to do so was
unsuccessful. Embery drove to a nearby Walmart and called the police. Embery
testified that the attack caused him significant pain that lasted for months.
Officers Rahim and Ordonez met Embery at Walmart. Both officers testified
that they immediately noticed injuries on Embery, including bruising and swelling
on his head. They took Embery to the police station, where they photographed his
injuries and took a statement from him. The photographs and Embery’s statement
were admitted into evidence at trial. Embery also identified Rutledge’s car and
Majors and Price from their driver’s license photographs. Embery declined the
officers’ request that he stay at a hotel for the night, so they escorted him home and
searched the house to ensure Majors, Price, and Rutledge had left. After Embery
went inside, officers set up additional patrols around Embery’s house out of concern
for his safety. Around 5 a.m. the following morning, Sergeant Cooney was patrolling
near Embery’s house when he saw Rutledge’s car in Embery’s driveway. Majors,
Price, and Rutledge were trying to enter the front door of Embery’s house. Cooney
called for backup and arrested Majors, Price, and Rutledge. He also found the
shotgun wrapped in a blanket in the trunk of Rutledge’s car.
31 After eliminating from our consideration Price’s and Rutledge’s trial
testimony, we conclude that the remaining trial evidence described above tended to
connect Majors with the charged offense of aggravated robbery. See Chapman, 470
S.W.2d at 660; Taylor, 7 S.W.3d at 737; TEX. CODE CRIM. PROC. art. 38.14.
Embery’s testimony established that Majors attempted to steal $500 from him and,
while in the course of committing theft and with intent to obtain control of the
money, Majors caused bodily injury to Embery, a person over 65 years old. See TEX.
PENAL CODE § 29.03(a)(3)(A); see also id. §§ 29.02(a)(1), 29.01(1), 31.03(a). The
testimony of Officers Rahim, Ordonez, and Cooney, as well as the photographs they
took of Embery’s injuries and their recovery of the shotgun Majors used in the
aggravated robbery, also tended to connect Majors to the offense.
We disagree with Majors that Embery’s prior statements created a credibility
issue that required the jury to convict him based solely on Price’s and Rutledge’s
uncorroborated testimony.
The trial court admitted into evidence the written statement Embery provided
to police officers on the night of the incident. The statement was generally consistent
with his trial testimony. For example, Embery stated that Majors retrieved a shotgun
covered in a blanket, pointed it at Embery, and put it down at Price’s request before
he pushed Embery against a wall and demanded $500. Embery refused, and Majors
hit him in the head while Price and Rutledge held his arms. When Embery said he
32 was calling the police, Price took his phone and told him he was not calling anyone.
He then went to his van. Price tried to stop him, but he was able to drive away to
Walmart and call the police.
Embery’s statement contained some minor inconsistencies with his trial
testimony. For example, he stated that Majors demanded his van keys before going
to get the shotgun. He also stated that Price or Rutledge kicked him in the left ribs
while he lay on the ground after Majors attacked him. Embery did not testify about
this injury, but Officer Rahim testified that Embery had complained of pain to his
left ribs when she met him at Walmart. None of the inconsistencies in Embery’s
written statement concerned Majors’ participation in the aggravated robbery or
tended to undermine Majors’ connection to the charged aggravated robbery. See
Chapman, 470 S.W.2d at 660; Taylor, 7 S.W.3d at 737; TEX. CODE CRIM. PROC. art.
38.14.
Embery also testified that he had written a letter to Price’s attorney
minimizing her role in the incident. The letter was not offered into evidence at trial.
But Embery testified that he wrote that he did not believe Price was involved in the
incident but was instead trying to save him. He wrote the letter because he still had
feelings for Price. But after he wrote the letter, he thought more about the incident
and recalled that Price and Rutledge had only grabbed his arms. Because they did
not also grab Majors, he doubted that Price was trying to help him. As with the minor
33 inconsistencies in his written statement to police, Embery’s statements in the letter
to Price’s attorney did not concern Majors’ involvement in the aggravated robbery
or tend to undermine his connection to it.
Reviewing the appellate record as a whole, we conclude that the jury charge’s
omission of a multiple-accomplice instruction prohibiting the jury from using one
accomplice’s testimony to corroborate the other accomplice’s testimony did not
cause Majors egregious harm. See Alcoser, 663 S.W.3d at 165. We therefore hold
that the charge error is harmless.
We overrule Majors’ second issue.
Conclusion
We affirm the judgment of conviction.
David Gunn Justice
Panel consists of Chief Justice Adams and Justices Gunn and Guiney.
Do not publish. TEX. R. APP. P. 47.2(b).