Kelly Laura Sixtos v. State ( 2014 )


Menu:
  • AFFIRMED; Opinion Filed August 26, 2014.
    S    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-13-00502-CR
    KELLY LAURA SIXTOS, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 265th Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. F-1259374-R
    MEMORANDUM OPINION
    Before Justices Fillmore, Evans, and Lewis
    Opinion by Justice Evans
    A jury convicted Kelly Laura Sixtos of aggravated assault with a deadly weapon—her
    car—causing serious bodily injury to a member of her household—Abisai Martinez—and
    sentenced Sixtos to twenty-five years’ confinement. She brings five issues on appeal, arguing
    the trial court erred by: (1) sustaining the State’s Batson challenge to one of her peremptory
    strikes; (2) incorrectly charging the jury regarding mental state; (3) allowing the State to shift the
    burden of proof to her in closing argument; (4) failing to sua sponte instruct the jury on a
    necessity defense; and (5) entering judgment on legally insufficient evidence of her mental state.
    Deciding appellant’s issues against her, we affirm the trial court’s judgment.
    I. BACKGROUND
    One evening after work, appellant drove her car over Martinez with whom she had a
    romantic relationship. The night before the incident, appellant and Martinez had a physical fight
    after which she terminated his living in her apartment, requiring him to leave with his
    belongings. When appellant returned from work the next evening, Martinez was in the parking
    lot of the apartment complex. They had a verbal dispute and appellant attempted to leave in her
    car. A security camera recorded a dark, grainy video of the movement of appellant’s car as she
    began a three-point turn by backing up while turning and then paused. Martinez ran after her
    maintaining just a few feet between himself and the front of appellant’s car.          Appellant’s
    headlights brightly illuminated Martinez in a light colored, short sleeve shirt as he ran after her
    staying in front of her car as its reverse motion came to a stop. Appellant’s car then moved
    forward running over Martinez. The front left, then the rear left, of the car bounced as it passed
    over Martinez.
    Appellant was indicted and tried by a jury. In addition to the video shown to the jury,
    Jairo Vidales testified that he witnessed from an apartment balcony the verbal altercation
    between appellant and Martinez. He saw clothes, pants, shirts, and an iron thrown out of the
    window of the car. He did not see Martinez act aggressively toward appellant. Vidales saw
    appellant back up, “then just step on the gas,” she “didn’t bother to slow down,” and she “pretty
    much thrown him pretty good.” Vidales summarized, “she could have reversed or go around
    him but she didn’t, she just floored the gas, took off,” running over Martinez. Vidales testified
    appellant drove fast stating, “When she run over that guy over [sic], she took off fast peeling out
    of the parking lot.” He also testified, “she just floored the gas, took off.” Vidales testified the
    sound of something being run over was loud.
    Martinez testified he remembered seeing appellant driving the car into the parking lot and
    then his next memory is waking up in the hospital. He testified he was in a coma for two weeks.
    Dr. Laura Petrey, a double-board certified trauma surgeon, testified Martinez arrived at Baylor
    Hospital in a coma and was given the most seriously injured patient rating. She testified he
    –2–
    suffered two distinct brain injuries, a fractured skull, and numerous other injuries. Dr. Petrey
    testified Martinez’s injuries were serious bodily injuries using the statutory definition in section
    1.07(46) of the penal code.      She testified a motor vehicle could be a deadly weapon and
    Martinez’s injuries were consistent with blunt force trauma from being hit by a motor vehicle.
    Appellant testified in her own defense that she fled the scene because she feared
    Martinez due to the prolonged physical abuse he subjected her to and the severe fight they had
    had the night before the incident. Appellant testified the night before Martinez had grabbed her
    by her hair, picked her up from where she was sitting, shoved her against a wall, choked her until
    she almost passed out causing her to vomit, shoved her face into a pile of dog manure, and
    threatened to kill her and himself.
    Appellant testified the next evening when she drove into the parking lot she saw Martinez
    walking fast towards her with a shirt and towel on one arm and an iron in his other hand. She
    testified she “knew” he was going to hit her and take the car so she testified she “put the car in
    reverse as fast as I could back to avoid him.” Appellant testified, “he was putting his hand in his
    pocket to get the spare key and trying to open the door to the driver door. And I freaked out, I
    got scared. That’s when I took off.” Appellant testified Martinez ran out in front of the car to try
    to stop her from leaving; that is when she “took off. Because I knew what was going to happen.
    We fought like that before, he’s done it before.” She testified when she hit the gas it was
    because she feared for her life because he usually hits her and the night before threatened to kill
    her and had choked her. She summarized, “I just wanted to get out of there. I wasn’t trying to
    hurt him. I was trying to get out of there . . . .” Photographs of her injuries from the evening
    before were introduced into evidence.
    –3–
    The jury convicted appellant of aggravated assault with a deadly weapon causing serious
    bodily injury to a member of her household. See TEX. PENAL CODE ANN. § 22.02(b)(l) (West
    2011). Appellant timely filed this appeal.
    II. ANALYSIS
    A. First Issue: the State’s Batson Challenge to Sixtos’s Peremptory Strike of Juror One
    During voir dire, appellant questioned prospective Juror One in the following exchange:
    [APPELLANT’S COUNSEL]: Mr. [Juror One’s name]?
    PROSPECTIVE JUROR [ONE]: Yes, sir.
    [APPELLANT’S COUNSEL]: Are you an engineer?
    PROSPECTIVE JUROR [ONE]: Yes.
    [APPELLANT’S COUNSEL]: What -- I always like to find out about
    folks who are engineers because they seem to be typically very analytical, very
    organized. And from my perspective, that’s the kind of juror I want. What kind
    of engineer are you?
    PROSPECTIVE JUROR [ONE]: I actually did field engineer recording
    equipment, 911, that type stuff. I’m retired now.
    [APPELLANT’S COUNSEL]: Oh okay. Who did you work for, if you
    don’t mind me asking?
    PROSPECTIVE JUROR [ONE]: I worked for Dictaphone and then I went
    to work for Nice Systems.
    [APPELLANT’S COUNSEL]: All right.
    PROSPECTIVE JUROR [ONE]: Dictaphone was purchased by Nice
    Systems.
    [APPELLANT’S COUNSEL]: When you say related to 911 calls, was
    that -- were you -- did you do work for law enforcement?
    PROSPECTIVE JUROR [ONE]: For the city of Dallas, yes.
    [APPELLANT’S COUNSEL]: Oh okay.
    PROSPECTIVE JUROR [ONE]: I repaired their equipment, 911.
    –4–
    [APPELLANT’S COUNSEL]: All right. But that--other than contracting
    with the City of Dallas, you didn’t have some relationship with law enforcement
    or something like that?
    PROSPECTIVE JUROR [ONE]: No.
    Appellant peremptorily struck prospective Juror One in addition to other males. The
    State challenged appellant’s peremptory strikes of males, including prospective Juror One, as
    violating Batson v. Kentucky, 
    476 U.S. 79
    , (1986), arguing “I don't think [appellant’s trial
    counsel] wants any males that will sympathize with a male being a victim of domestic violence.”
    Appellant responded that when asked about his employment Juror One’s “responses were curt,
    short, and I thought that he simply was of the opinion that either he didn’t want to be here at all
    or he didn’t like me personally.” The State responded, “I don't think there was a reason given
    that would supercede [sic] my motion for Batson.” The trial court repeated appellant’s trial
    counsel’s stated reason for striking Juror One (“curt answers”) and sustained the State’s Batson
    challenge to prospective Juror One, but overruled the remainder of the State’s Batson challenges
    granting appellant’s peremptory challenges to the other males.
    When we review a trial court’s ruling on a Batson challenge, we “should not overturn the
    trial court’s resolution of the Batson issue unless [we] determine[] that the trial court’s ruling
    was clearly erroneous.” Blackman v. State, 
    414 S.W.3d 757
    , 765 (Tex. Crim. App. 2013) (citing
    Herron v. State, 
    86 S.W.3d 621
    , 630 (Tex. Crim. App. 2002)); see Davis v. State, 
    329 S.W.3d 798
    , 815 (Tex. Crim. App. 2010) (“The trial court’s determination is accorded great deference
    and will not be overturned on appeal unless it is clearly erroneous.”). We review the entire
    record of voir dire, see 
    Blackman, 414 S.W.3d at 765
    , and do so in the light most favorable to the
    trial court’s ruling. 
    Davis, 329 S.W.3d at 815
    .
    The first step of a Batson challenge begins when a challenger makes a prima facie
    showing of discrimination in the opponent’s exercise of its peremptory strikes. See Davis, 329
    –5–
    S.W.3d at 815 (citing 
    Herron, 86 S.W.3d at 630
    ). Then, in the second step, the burden shifts to
    the party making the strikes to articulate gender-neutral explanations for its strikes. Guzman v.
    State, 
    85 S.W.3d 242
    , 246 (Tex. Crim. App. 2002). Once the party making the strikes has
    articulated a gender-neutral explanation, in the third step the burden shifts back to the
    challenging party to show that the explanations are a pretext for discrimination. See 
    Davis, 329 S.W.3d at 815
    . The trial court must then determine whether the challenging party has carried its
    burden of proving discrimination. 
    Id. When a
    party challenges an opponent’s strike on the basis of purposeful discrimination, if
    the trial court proceeds immediately to the second step by inquiring of the proponent whether he
    had a non-discriminatory purpose, a reviewing court is to assume that the opponent has satisfied
    his step-one obligation to make a prima facie case of purposeful discrimination and address only
    the second and third steps. Watkins v. State, 
    245 S.W.3d 444
    , 447 (Tex. Crim. App. 2008). At
    the second step of the analysis, there is no fact-finding to be done. The trial court simply accepts
    the explanation for the strike at face value and determines whether it is a reasonably specific
    discrimination-neutral reason. See Purkett v. Elem, 
    514 U.S. 765
    , 768 (1995). A discrimination-
    neutral explanation means any explanation based on something other than race, gender, or
    ethnicity. See id.; 
    Guzman, 85 S.W.3d at 245
    (Tex. Crim. App. 2002) (a litigant may not
    exercise a peremptory challenge based on the juror’s gender . . ., ethnicity, or race”) (citing
    J.E.B. v. Alabama ex rel. T.B., 
    511 U.S. 127
    (1994) (gender); Hernandez v. New York, 
    500 U.S. 352
    (1991) (ethnicity); 
    Batson, 476 U.S. at 100
    (race)).        Unless a discriminatory intent is
    inherent in the explanation, the reasons offered will be deemed discrimination-neutral. See
    
    Purkett, 514 U.S. at 768
    ; see also Fritz v. State, 
    946 S.W.2d 844
    , 847 (Tex. Crim. App. 1997)
    (discriminatory intent inherent in reason for peremptory challenge that males under the age of
    thirty would identify with opponent). “Thus, it is only at step three ‘that the persuasiveness of
    –6–
    the justification becomes relevant—the step in which the trial court determines whether the
    opponent of the strike has carried his burden of proving purposeful discrimination.’” 
    Guzman, 85 S.W.3d at 246
    (citing 
    Purkett, 514 U.S. at 768
    ).
    The State challenged appellant’s peremptory strikes of male prospective jurors. Because
    the trial court moved immediately to step two, we assume the validity of the State’s initial
    challenge. See 
    Watkins, 245 S.W.3d at 447
    . Appellant’s counsel then gave a reasonable,
    gender-neutral reason for his strike: Juror One’s answers were curt and short from which
    appellant’s counsel stated he inferred he did not think Juror One wanted to be a juror or did not
    like appellant’s counsel. In accordance with the second stage of a Batson challenge, the trial
    court merely accepted the proffered reason as gender-neutral, not whether it was persuasive.
    
    Guzman, 85 S.W.3d at 246
    (citing 
    Purkett, 514 U.S. at 768
    ).           The prosecutor challenged
    appellant’s counsel’s statement arguing she did not think it overcame her Batson challenge.
    When it announced its ruling on all the Batson challenges, the trial court singled out appellant’s
    reasons for peremptorily striking prospective Juror One from all the other similar peremptory
    challenges of male prospective jurors as the one involving “curt answers” and sustained the
    State’s challenge.   By so ruling, the trial court chose to disbelieve counsel’s reason and
    determined that appellant’s strike of Juror One violated Batson.
    Our review of the record supports the trial court’s ruling. First, Juror One addressed
    appellant’s counsel as, “Sir,” a respectful term. Second, Juror One’s answers were not curt; that
    is the answers were not terse, brusque, or abrupt. Instead, Juror One answered each question
    directly and volunteered additional information three times adding to three separate answers:
    “I’m retired now.”    “Dictaphone was purchased by Nice Systems.” and           “I repaired their
    equipment, 911.” Third, Juror One’s answers were not short. After the first two answers to
    identifying questions, Juror One answered with multiple sentences and multiple thoughts, clearly
    –7–
    providing helpful information to appellant’s counsel. Only Juror One’s last answer about not
    having a relationship with law enforcement was a short, “No.” When a party’s explanation for
    its peremptory strike is contradicted by the record, that is “persuasive evidence that its stated
    reason for striking [the prospective] Juror [] was pretextual.” Greer v. State, 
    310 S.W.3d 11
    , 18
    (Tex. App.—Dallas 2009, no pet.).
    In a Batson hearing, [t]he trial court is the sole judge of the credibility of the witnesses
    and may choose to believe or disbelieve all or any part of any witness’ testimony.” Wiltz v.
    State, 
    749 S.W.2d 519
    , 520 (Tex. App.—Houston [14th Dist.] 1988, no pet.) (sustaining trial
    court’s apparent disbelief of proffered race-neutral reason for peremptory challenges). The
    Supreme Court has consistently recognized that credibility determinations of the trial court
    should be given great deference on appellate review. See 
    Batson, 476 U.S. at 98
    n.21 (“Since the
    trial judge’s findings in the context under consideration here largely will turn on evaluation of
    credibility, a reviewing court ordinarily should give those findings great deference.”). Our
    review of the record fully supports the trial court’s ruling; nothing in the record supports
    appellant’s counsel’s stated reasons. See 
    Greer, 310 S.W.3d at 18
    (when a party’s explanation is
    not supported by the record it is presumptively pretextual). On this record we cannot say the trial
    court clearly abused its discretion. Accordingly, we overrule appellant’s first issue.
    B. Fifth Issue: Sufficiency of the Evidence Regarding Appellant’s Mental State
    In her fifth issue, appellant argues there was insufficient evidence to support the jury’s
    conviction of her for recklessly, knowingly, or intentionally causing serious bodily injury to
    Martinez. When an appellant challenges the sufficiency of the evidence to support a conviction,
    we review all the evidence in the light most favorable to the verdict to determine whether any
    rational trier of fact could have found the essential elements of the offense beyond a reasonable
    doubt. Wise v. State, 
    364 S.W.3d 900
    , 903 (Tex. Crim. App. 2012). Evidence is sufficient if
    –8–
    “the inferences necessary to establish guilt are reasonable based upon the cumulative force of all
    the evidence when considered in the light most favorable to the verdict.” 
    Id. If the
    evidence is
    conflicting, we “‘presume that the factfinder resolved the conflicts in favor of the prosecution’
    and defer to that determination.” 
    Id. (quoting Jackson
    v. Virginia, 
    443 U.S. 307
    , 326 (1979)).
    This standard is the same for both direct and circumstantial evidence. 
    Id. We measure
    the
    sufficiency of the evidence by the elements of the offense as defined by the hypothetically
    correct jury charge for the case. See Malik v. State, 
    953 S.W.2d 234
    , 240 (Tex. Crim. App.
    1997). “Such a charge would be one that 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.” 
    Id. One way
    a person commits assault is if she “intentionally, knowingly, or recklessly
    causes bodily injury to another.” TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2013). A
    person commits aggravated assault is if she commits assault “causing serious bodily injury to
    another” or “uses or exhibits a deadly weapon during the commission of the assault.” 
    Id. § 22.02(a)
    (West 2011).
    The parties agree that a hypothetically correct jury charge would instruct the jury that
    they could convict appellant if she had one of these three mental states:
    A person acts recklessly, or is reckless, with respect to the result of her conduct
    when she is aware of but consciously disregards a substantial risk that the result
    will occur.
    A person acts knowingly, or with knowledge, with respect to a result of her
    conduct when she is aware that her conduct is reasonably certain to cause the
    result.
    A person acts intentionally, or with intent, with respect to a result of her conduct
    when it is her conscious objective or desire to cause the result.
    –9–
    “Direct evidence of the requisite intent is not required . . . .” Hart v. State, 
    89 S.W.3d 61
    , 64
    (Tex. Crim. App. 2002). “A jury may infer intent from any facts which tend to prove its
    existence, including the acts, words, and conduct of the accused, and the method of committing
    the crime and from the nature of wounds inflicted on the victims. A jury may also infer
    knowledge from such evidence. This has been the rule in Texas for over 100 years.” 
    Id. Thus, a
    jury properly inferred intent from a defendant’s acceleration of a motor vehicle while a passenger
    was half-way in the window resulting in serious bodily injuries to the passenger—a concussion,
    broken hip, and cracked skull. Hunter v. State, 
    468 S.W.2d 96
    , 99–100 (Tex. Crim. App. 1971).
    Similarly, a jury found a defendant “acted with intent to cause serious bodily injury at the
    moment he accelerated as his mother clung to the hood of the car.” Samuels v. State, 
    785 S.W.2d 882
    , 886 (Tex. App.—San Antonio 1990, pet. ref’d). Numerous unpublished opinions
    have similarly concluded that rational juries may infer intentionally or knowingly causing serious
    bodily injury or threat of serious bodily injury from a defendant’s acceleration of a motor vehicle
    towards a person they know to be in the path of the vehicle. 1
    The evidence the State presented against appellant included the security camera recording
    and the testimony of Vidales. The security camera recording depicted appellant’s car back up in
    1
    See Ownbey v. State, No. 05-08-00611-CR, 
    2009 WL 1286280
    , at *2 (Tex. App.—Dallas May 11, 2009, no
    pet.) (mem. op., not designated for publication) (sufficient evidence for all elements of aggravated assault with
    deadly weapon from facts that defendant backed up, stopped, then put truck in drive, spun tires leaving rubber on the
    pavement, and accelerated toward complaining witness standing ten feet in front of vehicle hitting complaining
    witness even though he jumped to get out of the way); see also Herring v. State, No. 02-12-00546-CR, 
    2014 WL 173481
    , at *5 (Tex. App.—Fort Worth Jan. 16, 2014, no pet.) (mem. op., not designated for publication) (jury could
    have rationally inferred defendant’s intent to kill trooper from defendant’s acceleration directly toward one trooper,
    changing direction toward second trooper, revving engine and accelerating slow-moving tractor as fast as it would
    go with the bucket positioned to either protect defendant or ram troopers); Ayers v. State, No. 14-10-00747-CR,
    
    2011 WL 6808319
    , at *3-4 (Tex. App.—Houston [14th Dist.] Dec. 22, 2011, no pet.) (mem. op., not designated for
    publication) (intentionally or knowingly threatening complaining witness inferred from defendant backing up and
    then driving into complaining witness at high rate of speed); Creighton v. State, No. 08–09–00022–CR, 
    2011 WL 743073
    , at *3 (Tex. App.—El Paso March 2, 2011, no pet.) (not designated for publication) (evidence sufficient to
    establish intent to threaten with imminent bodily harm where defendant backed up his vehicle, stopped, put his
    vehicle into drive, and turned wheels toward officer, who was standing ten feet away from front of vehicle, and
    accelerated towards officer, requiring him to jump onto curb to get out of vehicle’s path).
    –10–
    a ninety degree turn while Martinez ran after the car. The recording depicts appellant’s car move
    forward over Martinez. Further, as stated above, Vidales testified he saw appellant back up and
    then accelerate, or as he described it, “step on the gas,” “she just floored the gas, took off,” “she
    took off fast peeling out of the parking lot,” and “she just floored the gas, took off.”     Finally,
    Dr. Petrey testified that Martinez’s injuries were rated the most severe injury category for
    medical treatment and that they met the penal code definition of serious bodily injury. She
    testified that a motor vehicle could be a deadly weapon.          Dr. Petrey ended by testifying
    Martinez’s injuries were consistent with blunt force trauma caused by a motor vehicle.
    A rational jury could conclude from the evidence that when appellant stopped her car’s
    backward motion and changed gears to move forward she saw Martinez in front of her car close
    enough he could touch it. A jury could conclude appellant knew there was no empty space
    available sufficient for appellant to move her car forward at all without running Martinez over.
    A rational jury could conclude that appellant knew running over Martinez with her car would
    cause serious bodily injury and that her car in that use would function as a deadly weapon. A
    rational jury could conclude that when appellant accelerated forward and ran over Martinez that
    she consciously disregarded a substantial risk that serious bodily injuries would result from her
    conduct, was aware that her conduct was reasonably certain to cause serious bodily injuries, or
    had as her conscious objective or desire to cause serious bodily injuries. There is sufficient
    evidence of appellant’s reckless, knowing, or intentional mental state. Appellant’s fifth issue is
    overruled.
    C. Second Issue: Charge Error Regarding Intent, Knowing, and Reckless
    In her second issue, appellant argues that the trial court erred by incorrectly charging the
    jury regarding intentional, knowing, and reckless in the abstract portion of the charge and that
    the error caused egregious harm. The State concedes there may be error in the abstract portion of
    –11–
    the charge, but argues the charge was correct in the application portion and any error did not
    cause egregious harm. We will explain the error in the abstract portion of the charge, then
    explain our reasons for agreeing with the State that any error was not egregious.
    When we review claims of jury charge errors, we first decide whether there was error in
    the charge. Ferguson v. State, 
    335 S.W.3d 676
    , 684 (Tex. App.—Houston [14th Dist.] 2011, no
    pet.). If there was error and appellant objected to the error at trial, then only “some harm” is
    necessary to reverse the trial court’s judgment. See Almanza v. State, 
    686 S.W.2d 157
    , 171 (Tex.
    Crim. App. 1985) (op. on reh’g). If, however, the appellant failed to object at trial—as in this
    case—then appellant will obtain a reversal “only if the error is so egregious and created such
    harm that he ‘has not had a fair and impartial trial’–in short ‘egregious harm.’” 
    Id. Egregious harm
    is the type and degree of harm that affects the very basis of the case, deprives the defendant
    of a valuable right, or vitally affects a defense theory. Allen v. State, 
    253 S.W.3d 260
    , 264 (Tex.
    Crim. App. 2008). In making an egregious harm determination, “the actual degree of harm must
    be assayed in light of the entire jury charge, the state of the evidence, including the contested
    issues and weight of probative evidence, the argument of counsel and any other relevant
    information [revealed] by the record of the trial as a whole.” Trejo v. State, 
    280 S.W.3d 258
    , 261
    (Tex. Crim. App. 2009) (quoting 
    Almanza, 686 S.W.2d at 171
    ). Egregious harm is a difficult
    standard to meet and must be determined on a case-by-case basis. See Ellison v. State, 
    86 S.W.3d 226
    , 227 (Tex. Crim. App. 2002).
    The offense in this case, aggravated assault by causing serious bodily injury or by
    causing bodily injury by use of a deadly weapon, is a result-oriented offense. See Johnson v.
    State, 
    271 S.W.3d 756
    , (Tex. App.—Waco 2008, pet. ref’d) (“Therefore, we hold that aggravated
    assault by causing bodily injury, accompanied by the use or exhibition of a deadly weapon, is a
    result-oriented offense . . . .”). Thus, the culpable mental state definitions in the jury charge
    –12–
    should have solely referenced the result of appellant’s conduct. In this instance, however, the
    abstract portion of the jury charge included the following additional, italicized language:
    A person acts recklessly, or is reckless, with respect to circumstances surrounding
    her conduct or the result of her conduct when she is aware of but consciously
    disregards a substantial risk that the circumstances exist or the result will occur.
    A person acts knowingly, or with knowledge, with respect to the nature of her
    conduct or to circumstances surrounding her conduct when she is aware of the
    nature of her conduct or that the circumstances exist. A person acts knowingly,
    or with knowledge, with respect to a result of her conduct when she is aware that
    her conduct is reasonably certain to cause the result.
    A person acts intentionally, or with intent, with respect to the nature of her
    conduct or to a result of her conduct when it is her conscious objective or desire
    to engage in the conduct or cause the result.
    See TEX. PENAL CODE ANN. § 6.03(a)-(c) (West 2011). However, the application paragraphs of
    the charge connected intentional, knowing, or reckless only to the results of appellant’s conduct
    when it instructed the jury that they could convict appellant only if they found she “did . . .
    intentionally, knowingly or recklessly cause serious bodily injury to Abisai Martinez . . . by
    striking or by running over complainant with a motor vehicle . . . .”
    At trial, appellant did not object to the jury charge, but on appeal she argues that she was
    egregiously harmed by error in the charge. Specifically, appellant argues that the trial court
    erroneously instructed the jury to find her guilty if it found she possessed the requisite culpable
    mental state not just as to the result of her conduct, but the conduct itself (the italicized language
    above). Appellant forcefully states her argument that because the sole issue at trial was whether
    she intended to hurt the complainant or whether she was simply trying to flee, the trial court
    “effectively neutered her defense” by instructing the jury to convict her in either circumstance.
    The State responds that even if the abstract portion of the jury charge contained incorrect
    definitions (the italicized language above), such error was not harmful and the application
    paragraph of the charge correctly instructed the jury.
    –13–
    The application paragraph applies the pertinent penal law, abstract definitions, and
    general legal principles to the particular facts and the indictment allegations. See Vasquez v.
    State, 
    389 S.W.3d 361
    , 367 (Tex. Crim. App. 2012). “‘It is the application paragraph of the
    charge, not the abstract portion, that authorizes a conviction.’” Yzaguirre v. State, 
    394 S.W.3d 526
    , 530 (Tex. Crim. App. 2013) (quoting Crenshaw v. State, 
    378 S.W.3d 460
    , 466 (Tex. Crim.
    App. 2012)). The application paragraph “explains to the jury, in concrete terms, how to apply
    the law to the facts of the case.” 
    Id. Accordingly, we
    should look to the application paragraph to
    determine whether the jury was correctly instructed in order to resolve a harm analysis. 
    Id. Thus, a
    n application paragraph that correctly instructs the jury on the law applicable to the case
    mitigates against a finding that error in the abstract portion of the jury charge was egregious. See
    Medina v. State, 
    7 S.W.3d 633
    , 640 (Tex. Crim. App. 1999); see also Davis v. State, 05-13-
    00200-CR, 
    2014 WL 1778269
    , at *12 (Tex. App.—Dallas May 1, 2014, pet. filed) (not
    designated for publication). With these principles in mind, we will proceed to conduct a harm
    analysis using the Almanza factors. See Doughtery v. State, PD-1411-05, 
    2006 WL 475802
    , at
    *1 (Tex. Crim. App. March 1, 2006) (per curiam) (not designated for publication) (reversing
    appellate court that did not conduct analysis using all Almanza factors).
    The first Almanza factor requires consideration of the entire jury charge. See 
    Almanza, 686 S.W.2d at 171
    . As we explained above, the abstract portion of the jury charge included
    additional language regarding the conduct of appellant in regard to the culpable mental states.
    However, the application paragraphs of the charge correctly instructed the jury that they could
    convict appellant only if they found she “did . . . intentionally, knowingly or recklessly cause
    serious bodily injury to Abisai Martinez . . . by striking or by running over complainant with a
    motor vehicle . . . .” Accordingly, the charge as a whole does not weigh in favor of egregious
    harm.
    –14–
    The second Almanza factor involves the state of the evidence, including the contested
    issues and weight of the probative evidence. See 
    Id., 686 S.W.2d
    at 171. We have analyzed the
    sufficiency of the evidence regarding intentional, knowing, and reckless and concluded that there
    was sufficient evidence for the jury to convict appellant.      Critical to our analysis are the
    authorities that note for over 100 years juries in Texas have been permitted to infer intent and,
    specifically, intent to cause serious bodily injury from conduct in which a driver accelerates a
    motor vehicle towards a person the driver knows to be in front of the vehicle. See 
    Hunter, 468 S.W.2d at 99-100
    ; 
    Samuels, 785 S.W.2d at 886
    ; see also supra n. 1. The jury heard appellant’s
    full version of the physical abuse she suffered from Martinez and her desire to accelerate out of
    the parking lot to escape him, thereby admitting her speed of exit. During her trial testimony
    appellant initially denied that Martinez was in front of her car and claimed he was on the side of
    the car trying to get in through the driver’s door. When appellant was confronted with the
    security video, however, she admitted Martinez was in front of her car when she accelerated. As
    we concluded above, the jury rationally could disbelieve appellant’s version and instead believe
    that appellant’s acceleration with Martinez directly in front of and close to her car was
    committed intentionally, knowingly, or recklessly to cause serious bodily injury to Martinez.
    The third Almanza factor involves the argument of counsel. See 
    Almanza, 686 S.W.2d at 171
    . In closing argument, the State correctly argued that appellant “intentionally or knowingly
    or recklessly caused serious bodily injury to [Martinez] . . . . That’s all we have to prove to
    you.” The State specifically argued knowingly was proven because appellant “was reasonably
    certain to run him over if she put it into drive and went forward[.] She knew that.” The State
    further argued that for the same reason appellant was reckless because “she hauls forward and
    runs him over like a speed bump.” The State again connected intentional and reckless to the
    results of appellant’s conduct when the State argued:
    –15–
    You see the video. You see that split second where that victim is in front of her.
    You want to talk about intentional? That’s intentional. You want to talk to
    reckless? How about the person that you’ve been talking to for the last few
    minutes in front of your car, as you moves he moves. Don’t you think if you put
    it into drive you’re going to run right over him?
    The State also argued intentional could be found because, “She didn’t stop, she didn’t come
    back, she didn’t do anything. She fled and hid.” The State argued, “You infer from her actions
    what her intent was.” The State’s argument about how the jury would determine appellant’s
    state of mind is consistent with Texas authorities reasoning that a jury may infer intent from the
    conduct of accelerating a vehicle towards a person whom the driver knows to be in front of the
    vehicle. See 
    Hunter, 468 S.W.2d at 99-100
    ; 
    Samuels, 785 S.W.2d at 886
    ; see also supra n. 1.
    Accordingly, the State’s argument—consistent with Texas law about inferring intent from
    conduct—does not favor a finding of egregious harm.
    The final Almanza factor addresses any other relevant information revealed by the record
    of the trial as a whole. See 
    Almanza, 686 S.W.2d at 171
    . We are not aware of any other relevant
    information that we should consider.
    Thus, in light of the Almanza factors, we are unable to conclude that appellant suffered
    egregious harm from the definitions in the abstract section of the jury charge that failed to limit
    the culpable mental states to the result of appellant’s conduct.       Accordingly, we overrule
    appellant’s second issue.
    D. Third Issue: State’s Closing Argument Regarding Appellant’s Burden of Proof
    In her third issue, appellant complains the State improperly argued to the jury by shifting
    to appellant the burden to prove her affirmative defense of self-defense. She contends the error
    of the trial court in allowing the improper argument harmed her.
    Proper jury argument in criminal cases includes argument as to the truthfulness of a
    witness’s testimony so long as the argument is based on the evidence presented and reasonable
    –16–
    deductions from such evidence, including the complainant’s demeanor while testifying. See
    Gonzalez v. State, 
    337 S.W.3d 473
    , 483 (Tex. App.—Houston [1st Dist.] 2011); see also Good v.
    State, 
    723 S.W.2d 734
    , 736–37 (Tex. Crim. App. 1986) (holding that prosecutor’s argument on
    truthfulness of witness was reasonable deduction from witness’s testimonial demeanor, which is
    considered to be in evidence); Graves v. State, 
    176 S.W.3d 422
    , 431 (Tex. App.—Houston [1st
    Dist.] 2004) (stating that jury argument may include vouching for witnesses’ credibility if it is
    reasonable deduction from evidence). It is not proper argument for a prosecutor merely to state
    the prosecutor’s opinion of a witness’ credibility. Williamson v. State, 
    771 S.W.2d 601
    , 608
    (Tex. App.—Dallas 1989, pet. ref’d).
    We review a trial court’s ruling on an objection to improper jury argument for abuse of
    discretion. See Garcia v. State, 
    126 S.W.3d 921
    , 924 (Tex. Crim. App. 2004); Powell v. State,
    
    63 S.W.3d 435
    , 438 (Tex. Crim. App. 2001); Lemon v. State, 
    298 S.W.3d 705
    , 707 (Tex. App.—
    San Antonio 2009, pet. ref’d). A trial court’s erroneous overruling of a defendant’s objection to
    a jury argument that exceeds the bounds of proper argument is not reversible error unless it
    affected the appellant’s substantial rights. TEX. R. APP. P. 44.2(b); Martinez v. State, 
    17 S.W.3d 677
    , 692–93 (Tex. Crim. App. 2000); Mosley v. State, 
    983 S.W.2d 249
    , 259 (Tex. Crim. App.
    1998). In determining whether appellant’s substantial rights were affected, we consider (1) the
    severity of the misconduct (i.e., the prejudicial effect of the prosecutor’s remarks), (2) curative
    measures, and (3) the certainty of conviction absent the misconduct. 
    Martinez, 17 S.W.3d at 692
    –93; 
    Mosley, 983 S.W.2d at 259
    . We must assess “whether [the] jury argument is extreme or
    manifestly improper [by] look[ing] at the entire record of final arguments to determine if there
    was a willful and calculated effort on the part of the State to deprive appellant of a fair and
    impartial trial.” 
    Brown, 270 S.W.3d at 573
    & n.3; see also Cantu v. State, 
    939 S.W.2d 627
    , 633
    –17–
    (Tex. Crim. App. 1997) (jury argument must be extreme or manifestly improper, or inject new
    and harmful facts into evidence to constitute reversible error).
    We first determine whether the complained-of jury argument was improper and whether
    the trial court abused its discretion in overruling the objection. The jury argument appellant
    complains shifted the burden of proof to her is italicized below while portions the State
    emphasizes in its response are underlined. This Court has numbered the paragraphs for reference
    in this opinion and has included a portion of the State’s rebuttal argument neither party
    emphasized.
    [1] [STATE]: But the question before you right now is this one question:
    Was she justified in using deadly force on the date of this offense? That’s it,
    that’s all.
    [2] So when we talk about that, I want to go over with you some things
    that we discussed as far as what her rights are. She’s presumed innocent. That
    doesn’t mean she’s presumed to tell the truth. You get to judge her credibility just
    like you do everyone else’s and you get to consider the fact that she has
    everything to lose and everything to gain by what she says up on the stand. She’s
    the one that has the biggest burden right now as far as what's going to happen to
    her.
    [APPELLANT’S COUNSEL]: Objection, Your Honor, I believe that’s
    improper argument to shift the burden to my client.
    THE COURT: Well, [if] the jury interprets that as shifting the burden of
    proof, I’ll sustain an objection; if not, I’ll overrule the objection.
    [3] [STATE]: What I’m telling you, ladies and gentlemen, is this: She’s
    the one that has everything to lose or gain by what happens here by what you
    decide.
    [4] Now they also have equal subpoena power. They don’t have a duty at
    all to bring any evidence, but if they do, that evidence needs to be credible to you.
    So I want to talk about the evidence that they didn’t bring to you but they wanted
    to talk about or make light of as if it were there.
    [5] Where are the medical records? She was beat brutally, as she said, on
    the 18th to the point of vomiting and she had to go to hospital, but they sit here
    and they don’t have a single medical record to show you about what happened to
    her. They could have subpoenaed those records, they could have brought them.
    –18–
    [6] You know what else they didn’t do? She said, I had all these injuries,
    I got choked to the point of vomiting. There’s not a single bruise around her
    neck. She didn’t call to report it to the police, there are no reports of any abuse.
    All you have is what she’s telling you.
    [7] And let me tell you something. She’s got everything to lose and
    everything to gain and she waits till this moment and doesn’t bring everything for
    you to consider.
    ***
    [8] [Excerpt of State’s rebuttal:] Now what did they bring you? You
    heard from the defendant herself. And defense counsel is absolutely right. He
    [sic] doesn’t have to do anything but sit there. But he’s [sic] chosen to do more
    than sit there. She got up and told you her version of events.
    (Emphasis of italics, underlining, and paragraph numbers added).
    The State’s argument regarding appellant’s defense focused on challenging appellant’s
    credibility. The State focused on persuading the jury that while they must presume appellant
    innocent, the law did not require them to presume appellant was telling the truth when she
    testified. See ¶ 2. The State immediately followed that by paraphrasing the instruction in the
    charge that the jury was the sole judge of the credibility of the witnesses and that would include
    appellant. With that introduction the State pointed out, “and you get to consider the fact that she
    has everything to lose and everything to gain by what she says up on the stand. She’s the one
    that has the biggest burden right now as far as what's going to happen to her.” Clearly the
    State’s argument is that the witness at trial with the largest interest in the outcome of the case by
    influencing the jury was appellant and that the jury could consider that when judging her
    credibility. This is proper jury argument about judging the credibility of a defendant who chose
    to testify. See 
    Gonzalez, 337 S.W.3d at 483
    ; 
    Good, 723 S.W.2d at 736
    –37; Graves, 176 S.W.3d
    –19–
    at 431. Accordingly, the trial court did not abuse its discretion when it overruled appellant’s
    objection. 2
    The State continued its challenge to appellant’s credibility by pointing out the lack of
    proof of appellant’s claim of self-defense. Having reminded the jury that appellant does not have
    a burden of proof, see ¶ 4, the State then again challenged the credibility of the self-defense
    evidence by pointing out that appellant had equal subpoena power and there were no medical
    records or other corroborating proof in the record; only appellant’s testimony. See ¶¶ 5, 6. The
    State then returns to a “biggest burden” argument phrased as, “She’s got everything to lose and
    everything to gain . . . ,” ¶ 7, and then again challenges the credibility of appellant’s defense due
    to the lack of proof. No objection in the trial court or on appeal has been made to this portion of
    the argument. Even in the State’s rebuttal argument it challenged the credibility of appellant’s
    defense using the same pattern of acknowledging she did not have a burden of proof and then
    attacking the lack of evidence supportive of her defense. See ¶ 8. Extensive portions of the
    State’s closing argument were devoted to the lack of any corroboration of appellant’s testimony
    and challenging the credibility of the witnesses appellant called in her defense and the credibility
    of their testimony. This was proper jury argument challenging the credibility of evidence
    favorable to appellant. See 
    Gonzalez, 337 S.W.3d at 483
    ; 
    Good, 723 S.W.2d at 736
    –37; 
    Graves, 176 S.W.3d at 431
    .
    The State’s argument did not shift the burden of proof to appellant and the trial court did
    not abuse its discretion in allowing the State’s argument. We overrule appellant’s third issue.
    2
    We do not decide that the trial court overruled the objection. However, since appellant argues this conclusion
    we will treat the trial court’s ruling as overruling the objection for the purposes of our analysis.
    –20–
    E. Fourth Issue: Trial Court’s Failure to Sua Sponte Instruct the Jury on Defense of
    Necessity
    In her fourth issue, appellant argues the trial court erred by failing to sua sponte include
    in its charge to the jury a defense of necessity. Although appellant did not propose a necessity
    instruction to the trial court, appellant relies on section 9.22 of the penal code which allows a
    defense of justification when:
    (1) the actor reasonably believes the conduct is immediately necessary to
    avoid imminent harm;
    (2) the desirability and urgency of avoiding the harm clearly outweigh,
    according to ordinary standards of reasonableness, the harm sought to be
    prevented by the law proscribing the conduct; and
    (3) a legislative purpose to exclude the justification claimed for the
    conduct does not otherwise plainly appear.
    TEX. PENAL CODE ANN. § 9.22 (West 2011).
    The purpose of the jury charge is to inform the jury of the applicable law and guide the
    jurors in applying it to the facts of the case. Delgado v. State, 
    235 S.W.3d 244
    , 249 (Tex. Crim.
    App. 2007). 3 The trial court is required to 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 2007);
    Taylor v. State, 
    332 S.W.3d 483
    , 486 (Tex. Crim. App. 2011). This duty exists even when
    defense counsel fails to object to inclusions or exclusions in the charge and thus may require the
    trial court to sua sponte instruct the jury on the law applicable to the case. 
    Taylor, 332 S.W.3d at 486
    . However, “Article 36.14 imposes no duty on trial courts to sua sponte instruct the jury on
    unrequested defensive issues . . . .” Posey v. State, 
    966 S.W.2d 57
    , 62 (Tex. Crim. App. 1998).
    This is so because, “[d]efensive issues are those ‘on which instructions are not mandated by any
    statute.’” Zamora v. State, 
    411 S.W.3d 504
    , 513 (Tex. Crim. App. 2013) (quoting Oursbourn v.
    3
    The standard of review for alleged error in a jury charge is set forth above in Section C.
    –21–
    State, 
    259 S.W.3d 159
    , 179 (Tex. Crim. App. 2008)).           Defensive issues “involve strategic
    decisions and tactics generally left to the lawyer and the client.” 
    Id. (citing Posey,
    966 S.W.2d at
    63; 
    Delgado, 235 S.W.3d at 249
    ).
    We have found no precedent that concludes the defense of necessity is mandated by
    statute as part of the law of aggravated assault. Nor has appellant cited us to any or made
    argument why defense of necessity should be considered as part of the law of aggravated assault.
    Instead, appellant generally argues that a defendant is entitled to an affirmative instruction on
    every defensive issue raised by the evidence, citing cases where a defendant requested an
    instruction on a defense. See Hamel v. State, 
    916 S.W.2d 491
    , 492 (Tex. Crim. App. 1996)
    (defendant requested jury instructions on self-defense and defense of a third person); Villarreal
    v. State, 
    821 S.W.2d 682
    , 685 (Tex. App.—San Antonio 1991, no pet.) (defendant requested jury
    instruction on claimed defense of alibi). Here, appellant did not request a jury instruction on
    defense of necessity. Following Zamora and Posey, we conclude the trial court had no duty to
    sua sponte instruct the jury on the defense. See Tex. R. App. P. 33.1(a); TEX. PENAL CODE ANN.
    §§ 22.01, 22.02. We overrule appellant’s fourth issue.
    III. CONCLUSION
    Having overruled appellant’s issues, we affirm the judgment of the trial court.
    David Evans
    DAVID EVANS
    JUSTICE
    Do Not Publish
    TEX. R. APP. P. 47
    130502F.U05
    –22–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    KELLY LAURA SIXTOS, Appellant                      On Appeal from the 265th Judicial District
    Court, Dallas County, Texas
    No. 05-13-00502-CR        V.                       Trial Court Cause No. F-1259374-R.
    Opinion delivered by Justice Evans.
    THE STATE OF TEXAS, Appellee                       Justices Fillmore and Lewis participating.
    Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
    Judgment entered this 26th day of August, 2014.
    –23–