NUMBER 13-18-00053-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RODOLFO ALVAREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa Memorandum Opinion by Chief Justice Contreras
Appellant Rodolfo Alvarez appeals his conviction for felony murder, a first-degree
felony. See TEX. PENAL CODE ANN. § 19.02(b)(3) (West, Westlaw through 2017 1st C.S.).
By one issue, appellant argues the trial court failed to limit the definitions of culpable mental states in the jury charge to the conduct elements required by the offense. We
affirm.
I. BACKGROUND
Appellant was involved in a high-speed vehicle collision that injured Y.C. and killed
Y.C.’s nine-year-old daughter P.C.1 On January 26, 2017, appellant was indicted for one
count of felony murder. The indictment included four paragraphs that alleged four
different ways in which appellant had committed the underlying felony offense. Later, the
State amended the indictment and removed the first two paragraphs. The State
proceeded to trial on felony murder based on the allegations that appellant caused the
death of P.C. while committing the felony of: (1) intoxication assault of Y.C.; and/or (2)
aggravated assault of Y.C. See TEX. PENAL CODE ANN. §§ 19.02(b)(3), 22.02(a),
49.07(a)(1) (West, Westlaw through 2017 1st C.S.).
Y.C. testified that she was driving late at night to Wal-Mart in Victoria, Texas. P.C.,
who was wearing a seat belt, was asleep in the backseat of her vehicle, a 2001 Ford
Expedition. As Y.C. neared Wal-Mart, Y.C. noticed a vehicle turning on the road behind
her. She observed a vehicle’s headlights approaching at a high rate of speed in her
driver’s side mirror. The next thing Y.C. remembered was waking up in the emergency
room. Y.C. suffered a broken arm, eight broken ribs, lacerations to her head, and a
collapsed lung. Y.C. was informed by her husband and hospital staff that P.C. was in a
coma and would likely never regain consciousness. She decided with her husband to
remove P.C. from life support.
1 We use initials to refer to the minor decedent and her family to protect their privacy. See TEX. R. APP. P. 9.8 cmt.; Salazar v. State, 562 S.W.3d 61, 63 n.1 (Tex. App.—Corpus Christi 2018, no pet.).
2 Jeorg-Ann Nevins, a friend of Y.C., testified that on the night of the accident she
carried a sleeping P.C. to Y.C.’s vehicle. Nevins explained that she placed P.C. in the
driver’s side back seat and secured her seat belt with the shoulder strap in front of P.C.
Caesar Villarreal, a corporal with the Texas Department of Public Safety, testified
that he reviewed data downloaded from the airbag control module of appellant’s vehicle.
The data showed that appellant’s vehicle was travelling at eighty-nine miles per hour at
the point of impact, which caused appellant’s vehicle to slow down by 21.97 miles per
hour on impact. Appellant’s vehicle was a Ford F-350 truck weighing 7,000 pounds, and
it collided with Y.C.’s vehicle with an energy of 1.8 million foot-pounds. Villarreal
explained the data from appellant’s vehicle indicated that nothing was mechanically
wrong with the truck. The data also indicated appellant did not depress the brakes at any
time prior to impact or take any evasive action. Villarreal explained they were unable to
retrieve the data from Y.C.’s vehicle and that, in any event, the recording system in a
vehicle like Y.C.’s 2001 Expedition would not have collected any data from a rear-end
collision.
Athena Baldwin, a physician’s assistant who treated appellant on the night of the
collision, testified that appellant informed her he drank occasionally and had diabetes.
Baldwin examined appellant about two and one-half hours after the collision. She
explained appellant smelled of alcohol and seemed intoxicated. Baldwin testified that
there was nothing in the medical records to suggest that appellant was suffering from a
diabetic episode at any time on the evening of the collision, and that appellant told her
that he drank alcohol and drove a vehicle that night. Appellant told Baldwin he had not
lost consciousness.
3 Matthew Janzow, M.D., treated Y.C. for her injuries. Dr. Janzow testified about
the injuries suffered by Y.C. and stated that Y.C. was at risk of death and permanent
disfigurement had her injuries not been treated. Dr. Janzow explained that he ordered
morphine for Y.C. shortly after her arrival and that it was therefore expected that lab work
performed later at the hospital would show opiates in her system. He explained that Y.C.
took an initial drug screen upon her admission that was negative for all the drugs tested.
During his opening statement, defense counsel had suggested that the opiates in Y.C.’s
system could have contributed to the collision.
The deputy chief medical examiner of the Travis County Medical Examiner’s office,
Satish Chundru, M.D., also testified. Dr. Chundru explained that P.C. had a dislocated
cervical vertebra, bruise of the spinal cord, a laceration to her liver, and a severe head
injury that included severe hemorrhage and bruising of the brain. Dr. Chundru explained
that “[i]t takes a significant amount of forces to cause bruising on the brain, and [P.C.] had
a significant amount of it.” Dr. Chundru explained that the injuries sustained by P.C.
were typically fatal and could not be attributed to the way P.C. was removed from the
vehicle by police or during her transportation to the hospital. During trial and his opening
statement, defense counsel had suggested that the act of removing P.C. from the
wrecked vehicle could have caused or contributed to her injuries and death.
Javed Qureshi, M.D., a radiologist, testified he read the images of the scans
performed on P.C. Dr. Qureshi noted that P.C. had a significant amount of intraventricular
hemorrhage within her head. He explained that the removal of P.C. from the crushed
vehicle and her transportation of fifteen or more feet to an ambulance could not have
caused the brain injuries P.C. suffered.
4 Officer Jonathan Houser of the Victoria Police Department testified he was
performing a late-night safety check at a bar down the road with three other officers when
the accident occurred. He explained that he and two other officers went to Y.C.’s vehicle
and found P.C. breathing but unconscious. Shortly after checking P.C.’s vitals, the
officers realized P.C. was no longer breathing and had no pulse. Houser testified that
Officer Blair Cerny of the Victoria Police Department cut P.C.’s seatbelt, removed her
from the vehicle, and handed her to Houser. Houser then carried P.C. to an ambulance
that had arrived, which was fifteen to twenty feet away. Houser explained that no
backboard was used because none was available, and he explained how fellow officers
Zambrano and Cerny removed P.C. from the vehicle before placing her in Houser’s arms.
Houser testified this was done very gently and that there were no violent movements to
the child’s back or neck.
Officer John Maresh of the Victoria Police Department ran to appellant’s car.
Officer Maresh testified that appellant was still in the truck and was unaware that a
collision had occurred. After appellant got out of the truck, Maresh had a brief discussion
with appellant during which appellant admitted to drinking alcohol.2 Officer Maresh
moved appellant to a safe area and performed field sobriety tests, which indicated that
appellant was intoxicated.3 Appellant declined Officer Maresh’s request for a voluntary
2 A video recording of Maresh’s encounter with appellant was entered into evidence and played for the jury. 3 Maresh performed a horizontal gaze nystagmus test, and appellant demonstrated six out of six possible clues of intoxication. Maresh then had appellant take ten steps heel-to-toe and walk in a straight line while counting out loud the number of steps in one direction, and then turn around and repeat the task while walking back to the starting point. Going away from the starting spot, appellant counted thirteen steps in total but also took some steps that he didn’t count. Walking back towards the start spot, appellant took nine steps. The walk-and-turn test has eight possible clues of intoxication and only two are needed for a decision that an individual is intoxicated; Maresh noted in his report that appellant exhibited four of the clues and stated at trial that, after reviewing the video, he noticed six. Finally, Maresh had appellant perform a
5 blood specimen. Officer Maresh obtained a search warrant to secure a sample of
appellant’s blood and then transported appellant to a hospital where he observed the
drawing of the blood. The trial court admitted a laboratory report prepared by the Texas
Department of Public Safety Crime Laboratory which showed that appellant’s blood
alcohol concentration was 0.101 grams of alcohol per 100 milliliters.4
Austin Carter, an E.M.T. with the City of Victoria Fire Department, approached
appellant while he was being questioned by Officer Maresh. Carter explained that
appellant did not want to go to the hospital, did not appear to have any injuries, and was
not exhibiting any symptoms associated with a diabetic episode or with a concussion.
Carter stated that appellant had a very strong smell of alcohol and that appellant told him
he had three or four beers.
Brandon Allen, an officer with the Victoria Police Department, testified concerning
his investigation of the accident, which included a reconstruction of the collision. Officer
Allen’s testimony was consistent with Villarreal’s, and he testified that the speed limit at
the site of the collision was fifty miles per hour. As a result of the impact, Y.C.’s vehicle
left the roadway before coming to rest in a ditch 441 feet away. Officer Allen stated that
even at such a high rate of speed, appellant should have been able to avoid colliding with
Y.C.’s vehicle. Officer Allen testified that no other vehicles contributed to the collision
between the two cars.
standing test, where appellant performs a one-legged stand. Appellant also failed to successfully complete this test. Maresh explained it was his opinion, after performing the field sobriety tests, that appellant was intoxicated. 4Under the Texas Penal Code, a person is intoxicated if their blood alcohol concentration is more than .08 grams of alcohol per 100 milliliters of blood. See TEX. PENAL CODE ANN. § 49.01(2)(B) (West, Westlaw through 2017 1st C.S.).
6 At trial, appellant questioned the reliability of the lab results and some of the
evidence, as well as the thoroughness of the police investigation and reconstruction of
the accident. Appellant also questioned whether the manner of P.C.’s removal from the
car contributed to cause her neck injuries and whether Y.C. or other vehicles could have
been a contributing factor to the crash.
The jury found appellant guilty of felony murder and assessed punishment at life
imprisonment in the Texas Department of Criminal Justice Institutional Division and a
$10,000 fine. This appeal followed.
II. DISCUSSION
By his sole issue, appellant argues the trial court failed to limit the definitions of
culpable mental states in the jury charge to the conduct elements required by the offense.
A. Standard of Review
“[I]n each felony case . . . tried in a court of record, the judge shall, before the
argument begins, deliver to the jury . . . a written charge distinctly setting forth the law
applicable to the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw
through 2017 1st C.S.).
Our first duty in analyzing an alleged jury-charge error is to determine whether
error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If we
find error, then we analyze that error for harm. Id. The degree of harm necessary for
reversal depends on whether the appellant preserved the error by objection. Id. “When
the defendant fails to object or states that he has no objection to the charge, we will not
reverse for jury-charge error unless the record shows ‘egregious harm’ to the defendant.”
Id. at 743–44.
7 Egregious harm is a difficult standard to prove and such a determination must be
made on a case-by-case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App.
2011); see, e.g., Hutch v. State, 922 S.W.2d 166, 172–74 (Tex. 1996) (en banc); Anaya
v. State, 381 S.W.3d 660, 665–68 (Tex. App.—Amarillo 2012, pet. ref’d); Chaney v. State,
314 S.W.3d 561, 568–73 (Tex. App.—Amarillo 2010, pet. ref’d). Egregious harm exists
when the error was calculated to injure the rights of the defendant or deprived the
defendant of a fair and impartial trial. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim.
App. 2009); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc)
(op. on reh’g); see TEX. CODE CRIM. PROC. ANN. art. 36.19 (West, Westlaw through 2017
1st C.S.). An error results in egregious harm if it affects the very basis of the case,
deprives the defendant of a valuable right, vitally affects the defensive theory, or makes
a case for conviction clearly and significantly more persuasive. Taylor, 332 S.W.3d at
490; Ngo, 175 S.W.3d at 750. To determine whether there was egregious harm, we
review “the entire jury charge, the state of the evidence, including the contested issues
and weight of the probative evidence, the arguments of counsel, and any other relevant
information revealed by the record of the trial as a whole.” Warner v. State, 245 S.W.3d
458, 461 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171.
B. Felony Murder
Appellant was charged under the felony murder statute, which provides that an
individual commits the offense of felony murder when he or she:
commits or attempts to commit a felony, other than manslaughter, and in the course of the commission or attempt . . . he commits . . . an act clearly dangerous to human life that causes the death of an individual.
TEX. PENAL CODE ANN. § 19.02(b)(3); Miles v. State, 259 S.W.3d 240, 246 (Tex. App.—
Texarkana 2008, pet. ref’d). In other words, felony murder is, essentially, “an 8 unintentional murder committed in the course of committing a felony.” Rodriguez v. State,
454 S.W.3d 503, 507 (Tex. Crim. App. 2014) (op. on reh’g). In Lomax v. State, the Texas
Court of Criminal Appeals explained that, because the very essence of felony murder is
that an individual unintentionally murders when he causes another person’s death during
the commission of some type of felony, there is no culpable mental state attached to
felony murder under penal code subsection 19.02(b)(3). 233 S.W.3d 302, 305 (Tex. Crim.
App. 2007); Lopez v. State, No. 04-16-00774-CR, __ S.W.3d __, __, 2018 WL 3129467,
at *11 (Tex. App.—San Antonio June 27, 2018, pet. ref’d). Thus, the State must prove
the elements of the underlying felony, including the culpable mental state for that felony.
Lomax, 233 S.W.3d at 306–07; Lopez, __ S.W.3d at __, 2018 WL 3129467 at *11; Munoz
v. State, 533 S.W.3d 448, 453 (Tex. App.—San Antonio 2017, pet. ref’d).
C. Conduct Elements of Culpable Mental States
An offense’s required culpable mental state may apply to one or more of three
conduct elements: (1) the nature of the conduct, (2) the result of the conduct, and (3) the
circumstances surrounding the conduct. Rodriguez v. State, 24 S.W.3d 499, 502 (Tex.
App.—Corpus Christi 2000, pet. ref’d); see TEX. PENAL CODE ANN. § 6.03 (West, Westlaw
through 2017 1st C.S.). An offense may apply a culpable mental state to any number of
these conduct elements to form a criminalized behavior. Rodriguez, 24 S.W.3d at 502;
McQueen, 781 S.W.2d at 603. A trial court errs when it fails to limit the definitions of the
culpable mental states to the manner in which they related to the conduct elements
required in a particular offense. Rodriguez, 24 S.W.3d at 502; Fraser v. State, 523
S.W.3d 320, 341 (Tex. App.—Amarillo 2017, pet. ref’d) (“Because the applicable mental
state of a result-oriented offense relates to the ‘result of the conduct’ rather than the
9 ‘nature of the conduct,’ a charge containing the full statutory definition of the applicable
mens rea is erroneous.”); see Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994)
(en banc).
With a result-oriented offense, the State must prove more than just that the
appellant engaged in conduct with the requisite criminal intent; the State must also prove
that the appellant caused the result with the requisite criminal intent. Delgado v. State,
944 S.W.2d 497, 498 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d); see Cook, 884
S.W.2d at 490 (“Engaging in conduct is not an element in a ‘result of conduct’ offense
and is not relevant unless the voluntariness of the act is an issue.”); Alvarado, 704 S.W.2d
at 39 (noting that, for a result of conduct offense, “[w]hat matters is that the conduct
(whatever it may be) is done with the required culpability to effect the result the Legislature
has specified”); Chaney v. State, 314 S.W.3d 561, 567 (Tex. App.—Amarillo 2010, pet.
ref’d) (“The court’s charge for a result oriented offense such as murder should not allow
a jury to convict a person based solely on a finding that the accused intentionally or
knowingly engaged in conduct which happened to cause death”).
D. Analysis
Here, the State alleged in its indictment that appellant was guilty of felony murder
because he caused the death of P.C. while committing one or more of the following
felonies: (1) intoxication assault of Y.C. and/or (2) aggravated assault of Y.C. causing
serious bodily injury. See TEX. PENAL CODE ANN. §§ 19.02(b)(3), 22.02, 49.07(a)(1). The
jury charge instructed the jury that it could convict appellant of felony murder if it found
beyond a reasonable doubt that appellant committed: (1) intoxication assault of Y.C.;
and/or (2) aggravated assault of Y.C. with a deadly weapon; and/or (3) aggravated
10 assault of Y.C. causing serious bodily injury. See id. §§ 19.02(b)(3), 22.02(a),
49.07(a)(1).
Appellant argues that the definitions of the culpable mental states included in the
jury charge (intentionally, knowingly, and recklessly) were not limited to apply to only the
result of his conduct, but instead also included that they applied to the nature of his
conduct and surrounding circumstances. In the abstract part of the jury charge, the
culpable mental states were defined as follows:
A person acts intentionally, or with intent, with respect to the nature of his conduct or a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
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.
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.
(Emphasis added).5
Intoxication assault does not require a culpable mental state. Shelby v. State, 48
S.W.3d 431, 440 (Tex. Crim. App. 2014); see TEX. PENAL CODE ANN. § 49.07(a)(1)
(requiring only proof of intoxication); see also id. § 49.11 (West, Westlaw through 2017
1st C.S.) (providing that proof of culpable mental state is not required for conviction of
5These are the full definitions of the culpable mental states as they appear in the Texas Penal Code. See TEX. PENAL CODE ANN. § 6.03(a)–(c) (West, Westlaw through 2017 1st C.S.).
11 offenses under Chapter 49).6 This is because “intoxication can be viewed as an imputed
form of recklessness.” Shelby, 48 S.W.3d at 440; Stanley v. State, 470 S.W.3d 664, 670
(Tex. App.—Dallas 2015, no pet.). Thus, the culpable mental state definitions in the jury
charge that appellant complains of do not apply to the alleged underlying felony of
intoxication assault.7
Aggravated assault as pleaded here, however, is a result-oriented offense.
Stanley, 470 S.W.3d at 669; Sneed v. State, 803 S.W.2d 833, 836 (Tex. App.—Dallas
1991, pet. ref’d); see Garfias v. State, 424 S.W.3d 54, 60–61 (Tex. Crim. App. 2014); see
also TEX. PENAL CODE ANN. §§ 22.01, 22.02 (West, Westlaw through 2017 1st C.S.);
Shelby, 448 S.W.3d at 438 (“The gravamen of aggravated assault . . . is either causing
bodily injury or threatening bodily injury, depending on which theory has been pleaded in
the charging instrument”). Yet, the definitions of the culpable mental states were not
properly limited to only the result of the conduct and, thus, the jury charge was erroneous.
See Cook, 884 S.W.2d 490; Rodriguez, 24 S.W.3d at 502; Delgado, 944 S.W.2d at 498.
At trial, appellant did not object to the definitions submitted in the jury charge.
Accordingly, we proceed to review the entire jury charge, the state of the evidence, the
arguments of counsel, and any other relevant information revealed by the record of trial
6 “All of the offenses set forth in Chapter 49 [of the Texas Penal Code], Intoxication and Alcoholic
Beverages Offenses, require a showing that the defendant was intoxicated in public or was intoxicated or consumed or possessed alcohol while operating some type of motor vehicle or equipment implicating public safety.” Burke v. State, 28 S.W.3d 545, 549 (Tex. Crim. App. 2000) (citing TEX. PENAL CODE ANN. §§ 49.02 (public intoxication), 49.03 (consumption or possession of alcoholic beverage in motor vehicle), 49.04 (driving while intoxicated), 49.05 (flying while intoxicated), 49.06 (boating while intoxicated), 49.065 (assembling or operating amusement ride while intoxicated), 49.07 (intoxication assault), 49.08 (intoxication manslaughter) (West, Westlaw through 2017 1st C.S.)) (emphasis in original). “All of the offenses under Chapter 49 are strict liability offenses.” Id. (citing TEX. PENAL CODE ANN. § 49.11 (West, Westlaw through 2017 1st C.S.)). 7The abstract part of the jury charged provided that “intoxicated” means “either (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body; or (2) having an alcohol concentration of 0.08 or more.” See TEX. PENAL CODE ANN. § 49.01(2).
12 as a whole to determine whether appellant suffered egregious harm. Ngo, 175 S.W.3d
at 743; Almanza, 686 S.W.2d at 171.
1. Jury Charge
Here, the application paragraph in the jury charge stated that, in order to convict
appellant of felony murder, the jury needed to find beyond a reasonable doubt that
appellant:
as alleged in the indictment, did then and there; 1. commit the felony offense of: a. Intoxication Assault of [Y.C.]; and/or b. Aggravated Assault of [Y.C.] with a deadly weapon; and/or c. Aggravated Assault of [Y.C.] causing serious bodily injury.
(Emphasis added). For the underlying felony alleged under (c), the application paragraph
correctly pointed the jury’s focus to the result caused by appellant’s conduct by the use
of the word “causing.” 8 See Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App. 1995)
(en banc); Ash v. State, 930 S.W.2d 192, 195 (Tex. App.—Dallas 1996, no pet.); see,
e.g., Peterson v. State, 836 S.W.2d 760, 765–66 (Tex. App.—El Paso 1992, pet. ref’d)
(concluding that no harm was shown from inclusion of both conduct-oriented and result-
oriented definitions of “knowingly” because application instruction properly required the
jury to find that defendant knowingly caused bodily injury). “Where the application
paragraph correctly instructs the jury, an error in the abstract instruction is not egregious.”
Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (en banc); see Plata v. State,
926 S.W.2d 300, 302–03 (Tex. Crim. App. 1996), overruled in part on other grounds by
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (en banc); Patrick, 906 S.W.2d at
8 The jury charge provided that a person commits aggravated assault “if the person commits
‘Assault’ and the person: (1) causes serious bodily injury to another; or (2) uses or exhibits a deadly weapon during the commission of the ‘Assault.’” The jury charge provided that a person commits assault “if the person intentionally, knowingly, or recklessly causes bodily injury to another.”
13 491–93; see also Peterson, 836 S.W.2d at 765–66; but see Chaney v. State, 314 S.W.3d
561, 568–72 (Tex. App.—Amarillo 2010, pet. ref’d) (finding charge error to be egregious
and harmful when the application paragraph correctly limited the jury’s consideration to
the result of appellant’s conduct because the “vast majority [of the evidence that appellant
contested] dealt with appellant’s culpable mental state”). Thus, there was no egregious
harm if the jury based its verdict on (c). See Medina, 7 S.W.3d at 640; Plata, 926 S.W.2d
at 302–03 (noting that the inclusion of a merely superfluous abstraction never produces
reversible error in the court’s charge because it has no effect on the jury’s ability to fairly
and accurately implement the commands of the application paragraph).
Regarding the alleged underlying felony of intoxication assault under (a), as
previously noted, no culpable mental state is required. Thus, appellant’s argument does
not apply because he only complains of the definitions of the mental states applicable to
aggravated assault (intentionally, knowingly, and recklessly).
The only alleged underlying felony that was submitted in the application paragraph
in a manner that did not limit the jury’s consideration to the proper conduct element was
aggravated assault with a deadly weapon. See Cook, 884 S.W.2d 490; Rodriguez, 24
S.W.3d at 502; Delgado, 944 S.W.2d at 498. Nevertheless, the trial court’s instructions
regarding intoxication assault and aggravated assault causing bodily injury did limit the
jury’s consideration to the proper conduct element. There were, therefore, at least two
theories of the offense upon which appellant’s conviction was not affected by the charge
error. See Medina, 7 S.W.3d at 640; Nava v. State, 379 S.W.3d 396, 419–20 (Tex. App.—
Houston [14th Dist.] 2012), aff’d, 415 S.W.3d 289 (Tex. Crim. App. 2013); see also Cantu
v. State, No. 03-01-00231-CR, 2002 WL 1289882, at *9 (Tex. App.—Austin June 13,
14 2002, pet. ref’d) (mem. op., not designated for publication) (concluding that “the record
included substantial evidence for the jury to have concluded that appellant intentionally
or knowingly, as defined under the result-oriented concept, caused the death of the
victim”). As discussed below, there was overwhelming evidence presented that
supported a finding that appellant was guilty under either of those theories of the offense.
2. State of the Evidence
The second factor we analyze is the evidence admitted at trial, including the
contested issues and weight of the probative evidence. See Vega v. State, 394 S.W.3d
514, 521 (Tex. Crim. App. 2013). Here, there was testimony from Maresh that appellant
failed field sobriety tests and seemed intoxicated, and the video of the field sobriety tests
was admitted into evidence. Appellant can be heard saying on the video that he had
consumed alcohol before driving that night and probably had too much to drink, and
Maresh testified that appellant smelled of alcohol. On the video, a second officer can be
heard explaining to appellant that the officers believed appellant was intoxicated or had
been drinking and that he operated a motor vehicle, and appellant replied “yes” to both.
Appellant did not dispute Maresh’s testimony that he failed the field sobriety tests.
Appellant can be seen swaying in the video, and it is clear that he was unable to complete
the tests administered by Maresh. Baldwin and Carter also testified that appellant
smelled strongly of alcohol when they interacted with him on the evening of the crash.
Baldwin testified appellant admitted to drinking alcohol and appeared intoxicated.
Furthermore, a lab report was admitted into evidence showing that two hours after the
collision appellant had a blood alcohol content of 0.101, which is above the legal limit and
indicates he was intoxicated at the time of the collision. See TEX. PENAL CODE ANN.
15 § 49.01(2)(B) (West, Westlaw through 2017 1st C.S.). Thus, the probative evidence that
appellant was intoxicated was substantial.
There was also substantial evidence that indicated Y.C. suffered serious bodily
injury as a result appellant’s conduct. See id. § 22.02 (West, Westlaw through 2017 1st
C.S.). Serious bodily injury means “bodily injury that creates a substantial risk of death
or that causes death, serious permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.” Id. §1.07(a)(46) (West, Westlaw through
2017 1st C.S.). Here, it was undisputed that appellant was the driver of the vehicle that
collided with Y.C.’s car, and there was evidence obtained from the black box from
appellant’s car that indicated he was traveling at a high rate of speed and took no evasive
action before crashing into Y.C.’s vehicle. Testimony from the officers responding to the
scene and from the officers who reconstructed the accident supported these facts. Both
Y.C. and Dr. Janzow testified as to the extent of the severe injuries Y.C. suffered as a
result of the crash. Dr. Janzow testified Y.C. was at risk of permanent disfigurement and
death and Y.C. testified she had suffered prolonged loss of function in her right arm as a
result of the crash. Thus, the probative evidence in support of a conclusion that appellant
committed intoxication assault and aggravated assault causing serious bodily injury is
overwhelming. Additionally, there was no evidence that would have led the jury to find
that appellant had not caused the injuries to Y.C., cf. Rodriguez, 24 S.W.3d at 503, and
appellant never argued that his acts were involuntary or that he was not acting
intentionally, knowingly, or recklessly when he caused serious bodily injury to Y.C. This
indicates that appellant did not suffer egregious harm from the error in the abstract part
of the jury charge. See Medina, 7 S.W.3d at 640; Herrera v. State, 526 S.W.3d 800, 807
16 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (concluding that evidence of physical
trauma to victim’s neck belied appellant’s assertion of egregious harm from charge error
because the evidence left little risk that a reasonable jury could have concluded that
appellant was choking victim but was not aware that his conduct was reasonably certain
to cause serious bodily injury); Nava, 379 S.W.3d at 419–20; Render v. State, 316 S.W.3d
846, 853 (Tex. App.—Dallas 2010, pet. ref’d).
3. Arguments of Counsel
The State’s opening and closing arguments were inconsistent regarding where the
focus of the jury should be as to the conduct element of the culpable mental states. Parts
of the State’s opening argument and closing argument focused on the nature of the
conduct appellant engaged in and parts focused on the result of the conduct, and the
same can be said of defense counsel’s closing argument. However, during the entirety
of the trial proceedings, the State emphasized the nature of appellant’s conduct as
opposed to the result of his conduct. For example, the State asked all of the officers who
testified whether appellant’s acts of driving intoxicated, failing to yield right-of way, failing
to avoid a collision, and speeding were reckless.
However, as previously noted, appellant never disputed that he was acting
intentionally, knowingly, or recklessly. Instead, appellant’s defensive theories involved
questioning the thoroughness of the police investigation, the reliability of the lab results,
the credibility of the witnesses, whether Y.C. or other motorists were partially at fault for
the collision, and whether the responding officers could have been responsible for or
contributed to the injuries suffered by P.C. when they removed her from the vehicle.
4. Summary
17 After reviewing the jury charge, the state of the evidence, and the arguments of
counsel, we conclude that appellant did not suffer “egregious” harm from the erroneous
culpable mental state definitions included in the jury charge. As to two of the three
underlying felonies alleged as the means of committing the offense of felony murder, the
application paragraph limited the jury’s consideration to the conduct elements applicable
to the offense, and the evidence presented in favor of these two underlying felonies was
overwhelming. See Medina, 7 S.W.3d at 640; Nava, 379 S.W.3d at 419–20; see also
Cantu, 2002 WL 1289882, at *9. In light of the entire jury charge and the state of the
evidence, the inaccurate statements made by the State during trial regarding the
applicable conduct elements did not cause appellant egregious harm.
We conclude that the erroneous definition of the culpable mental states submitted
in the abstract portion of the jury charge did not affect the basis of the case, deprive
appellant of a valuable right, or vitally affect a defensive theory. See Ngo, 175 S.W.3d at
750.
We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS Chief Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 25th day of April, 2019.