Xiomara Rosales Mendez v. State ( 2012 )

Affirmed and Opinion filed August 16, 2012.
In The
Fourteenth Court of Appeals
NOS. 14-10-00527-CR, 14-10-00528-CR
ANDRES MALDONADO NAVA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause Nos. 1260355, 1233224
NOS. 14-10-00530-CR, 14-10-00531-CR
XIOMARA ROSALES MENDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1233225, 1221664
OPINION
A jury convicted Andres Maldonado Nava and Xiomara Rosales Mendez
(collectively, “appellants”) of felony murder and organized criminal activity. Appellants
raise issues regarding sufficiency of the evidence, a missing portion of the record, and the
jury charge.1 We affirm.
I. BACKGROUND
In June 2009, certain divisions of the Houston Police Department (“HPD”)
conducted “reverse sting” operations to identify and arrest individuals who were
purchasing and reselling stolen goods. An undercover police informant approached a
man at a flea market and offered to sell him stolen televisions. The men exchanged
phone numbers. The informant repeatedly called the man, soliciting him to buy the
televisions, but the man declined. However, the man informed Mendez, who worked at
the same flea market, about the offer. Mendez expressed interest and began
communicating with the informant and undercover HPD sergeant Robert Calderon.
Initially, Sergeant Calderon and Mendez could not agree on a location to conduct
the sale. HPD officers wanted to conduct the “reverse sting” operation in the parking lot
of a Fiesta grocery store (“Fiesta parking lot”), whereas Mendez insisted Sergeant
Calderon bring the televisions several miles away to her location. However, on June 23,
2009, Mendez called Sergeant Calderon and stated she and her husband would come to
the Fiesta parking lot later that day to view the televisions but would not bring money.
Sergeant Calderon agreed.
HPD officers then prepared to conduct the operation. The informant and
undercover HPD officer Henry Canales sat in a parked Budget rental truck (the “Budget
truck”) in the middle of the Fiesta parking lot. Officer Canales wore a wristwatch
containing a hidden microphone which recorded and transmitted audio to other officers.
1
We consolidate appellants’ appeals on our own motion. We also note that Nava filed separate
briefs relative to each of his convictions, whereas Mendez filed a single brief relative to her convictions.
2
Thirty-four televisions and two laptops with a combined value of over $30,000 were
stored inside the cargo area of the Budget truck.2 Many other undercover officers
operating unmarked vehicles were stationed near the Fiesta parking lot. Sergeant
Calderon and Officer Ruben Lopez were the senior officers overseeing the operation and
sat in a parked pick-up truck. They were positioned to survey the impending transaction
and listened to audio transmitted via Officer Canales’s watch.
Mendez did not arrive at the Fiesta parking lot at the agreed time but called
Sergeant Calderon to assure him she was still coming. At approximately 9:15 p.m., a
white van was driven into the parking lot and parked near the Budget truck. Although
officers were expecting only two individuals, Mendez, Nava, Robert Carrillo, and a
minor, whom we will refer to as “Jane Doe,” (collectively, “the conspirators”) exited the
van. Nava owned the van.
Officer Canales and the informant exited the Budget truck and began conversing
with the conspirators. Notably, the parties spoke Spanish during the meeting. Sergeant
Calderon and Officer Lopez, who were listening to the transmitted audio of the meeting,
understood Spanish. Expert witnesses were later utilized by the State and appellants to
translate the audio recordings to English.
Officer Canales showed the conspirators the televisions and represented they were
stolen. As discussed in greater detail below, the parties began negotiating a sale price.
The conspirators were adamant about testing the televisions before purchasing them, but
Officer Canales insisted on payment before delivery. Eventually, the parties agreed on
$6,500. After the conspirators paid this amount in cash to Officer Canales, the parties
began discussing who would ride in the Budget truck and Nava’s van. Officer Canales
separated himself from the conspirators and said “It’s a done deal” into his watch,
possibly intending to request that other officers enter the scene and arrest the
2
Commercial retailers loaned these items to HPD for purposes of undercover operations.
3
conspirators. Apparently, “It’s a done deal” was not the correct arrest signal, and the
surveying officers remained in their positions.
The situation deteriorated quickly as Officer Canales ignored the conspirators’
requests for the Budget truck key. Carrillo entered the cab of the Budget truck in search
of the key. He then approached Officer Canales from behind, drew a pistol, and
demanded the key. Officer Canales ran to the passenger side of the Budget truck, and
Carrillo followed. From their vantage points, surveying officers could not observe
exactly what transpired. However, the evidence supports a finding that Carrillo shot
Officer Canales in the back, and Officer Canales shot Carrillo in the chest. During police
interrogation, Mendez stated she saw Carrillo fire the first shot.
After hearing gunshots, the surveying officers descended upon the Fiesta parking
lot. Officers shot Carrillo again and detained him; Carrillo died at the scene. Nava,
Mendez, and Doe fled in the van. While Nava drove, Mendez called 9-1-1 and reported
they were being followed by persons who wanted to kill them. Eventually, officers
stopped the van. Officers did not find any weapons in the van. Shortly thereafter,
Officer Canales died as a result of his gunshot wound.
Nava and Mendez were indicted for felony murder and organized criminal
activity. After twelve days of testimony and argument, the jury found Nava and Mendez
guilty on both charges. The jury assessed Nava’s punishment at sixty years’ confinement
for felony murder and seven years’ confinement for organized criminal activity. The jury
assessed Mendez’s punishment at sixty years’ confinement for felony murder and twenty
years’ confinement for organized criminal activity.
II. LEGAL SUFFICIENCY
In the third issue of his murder appeal, Nava contends the evidence is legally
insufficient to support the jury’s finding that he is criminally responsible for felony
murder. Mendez asserts the same third issue. In the third issue of his organized-
4
criminal-activity appeal, Nava contends the evidence is legally insufficient to support his
conviction.
A. Standard of Review
When reviewing sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational fact finder could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746
(Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We
do not sit as thirteenth juror and may not substitute our judgment for that of the fact
finder by re-evaluating weight and credibility of the evidence. Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the
fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw
reasonable inferences from basic facts to ultimate facts. Id. This standard applies equally
to both circumstantial and direct evidence. Id. Our duty as reviewing court is to ensure
the evidence presented actually supports a conclusion that the defendant committed the
crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Circumstantial evidence is as probative as direct evidence in establishing guilt of
an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). An inference is a conclusion reached by
considering other facts and deducing a logical consequence from them. Id. at 16.
Speculation is mere theorizing or guessing about the possible meaning of facts and
evidence presented. Id. A conclusion reached by speculation may not be completely
unreasonable, but it is not sufficiently based on facts or evidence to support a finding
beyond a reasonable doubt. Id. Each fact need not point directly and independently to
the appellant’s guilt, as long as the cumulative effect of all incriminating facts is
sufficient to support the conviction. Id. at 13.
Sufficiency of the evidence is measured by elements of the offense as defined in a
hypothetically correct jury charge, which accurately explains the law, is authorized by the
5
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. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997).
B. Sufficiency Review: Felony Murder
Relevant to the present case, a person commits felony murder if, in the course and
in furtherance of the commission or attempted commission of felony theft, he commits or
attempts to commit an act clearly dangerous to human life that causes the death of an
individual. Tex. Penal Code Ann. §§ 19.02(b)(3) (West 2011). A person commits felony
theft if he unlawfully appropriates property of a certain value with intent to deprive the
owner of property. Id. § 31.03(a), (e) (West Supp. 2012). “Appropriate” means to
acquire or otherwise exercise control over property other than real property. Id. §
31.01(4) (West Supp. 2012). Appropriation of property is unlawful if the property is in
the custody of any law enforcement agency and is explicitly represented by any law
enforcement agency to the actor to be stolen and the actor appropriates the property
believing it was stolen by another. Id. § 31.03(b)(3).
It is undisputed that Carrillo was the person who shot and killed Officer Canales.
Hence, to support appellants’ conviction of felony murder, the evidence must prove
beyond a reasonable doubt that appellants were criminally responsible for Carrillo’s
offense. Under the conspirator-responsibility theory of party responsibility, “If, in the
attempt to carry out a conspiracy to commit one felony, another felony is committed by
one of the conspirators, all conspirators are guilty of the felony actually committed,
though having no intent to commit it, if the offense was committed in furtherance of the
unlawful purpose and was one that should have been anticipated as a result of carrying
out the conspiracy.” Tex. Penal Code Ann. § 7.02(b) (West 2011).
There is strong evidence supporting a finding that Nava, Mendez, and Carrillo
engaged in a conspiracy to commit felony theft. Before the incident, Mendez spoke with
Sergeant Calderon via telephone regarding the televisions; Sergeant Calderon informed
6
Mendez several times that the televisions were stolen. Nava drove Mendez, Carrillo, and
Doe to the Fiesta parking lot. Sergeant Calderon testified that when the conspirators
arrived, Officer Canales showed them the televisions, which he explicitly represented as
being stolen. This testimony is substantiated by the undercover-recording transcript
pertaining to the parties’ conversation immediately after Officer Canales opened the rear
door of the Budget truck:
Mendez: Why don’t you all close that right there? [Laughs]
Carrillo: How many are there in all?
Officer Canales: Excuse me?
Carrillo: How many are there?
Mendez: There are thirty-four, right?
Nava: Let’s see, let me get up there.
Officer Canales: It’s that I steal them from, from the trucks when they’re on
the trip.
(Laughter)
Carrillo: When they come in transit?
Informant: Yes.
Undeterred by Officer Canales’s representation, Nava, Mendez, and Carrillo proceeded to
negotiate with Officer Canales regarding price and testing of the televisions.
The more difficult sufficiency question is whether the evidence supports a finding
that Carrillo’s shooting was committed in furtherance of the theft and should have been
anticipated by appellants. Mendez argues that the shooting did not occur in furtherance
of the theft because the theft was complete at the time of the shooting. We agree the jury
could have reasonably found that the theft was complete after Officer Canales was paid,
and Carrillo entered the Budget truck in search of the key, thereby exercising control of
the truck and televisions. See Tex. Penal Code Ann. § 31.03(4) (defining “appropriate”
as acquiring or otherwise exercising control of property). Although the theft was legally
complete, we conclude the jury also could have reasonably found that the shooting
7
occurred during the commission and in furtherance of the theft as contemplated in the
felony-murder statute.
The undercover-recording transcript reflects that immediately before the shooting,
Carrillo and Nava repeatedly demanded that Officer Canales give them the key,
culminating in the following exchange:
Carrillo: Where is the key?
Officer Canales: Hold on.
Nava: Hold on. The Key. Hey!
Officer Canales: Hey, hey!
Carrillo: Do you have the key or not?!
Nava: The Money!
Carrillo: Do you have the key?!
Officer Canales: Oh, damn!
Nava: Shoot him!
Carrillo: Do you have the key?! Give me the Money or I’ll kill you,
asshole!
(Gunshots)
Officer Canales: It’s a done deal. I’m shot.
Sergeant Calderon testified that Officer Canales said “Hey, hey!” because Carrillo
displayed the gun. This evidence supports a finding that Carrillo intended to shoot
Officer Canales unless he provided the key or returned the money. Carrillo then shot
Officer Canales in the back as he retreated.
Mendez argues that courts generally hold an act was committed in furtherance of a
felony when it was actually part of the underlying felony. See, e.g., Bigon v. State, 252
S.W.3d 360, 366 (Tex. Crim. App. 2008) (holding intoxicated defendant’s act of driving
vehicle into oncoming traffic, resulting in death of another, was committed in furtherance
of felony driving while intoxicated, despite fact that the act stopped defendant’s operation
of vehicle); Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999) (holding felony
murder was properly based on underlying offense of injury to a child even though death
8
was direct result of the offense); Aguirre v. State, 732 S.W.2d 320, 325 (Tex. Crim. App.
1987) (op. on rehearing) (holding felony murder could be based on underlying offense of
criminal mischief even though death was direct result of the offense); Murphy v. State,
665 S.W.2d 116, 119 (Tex. Crim. App. 1983) (holding felony murder was properly based
on underlying offense of arson even though death was direct result of the offense);
Minard v. State, 836 S.W.2d 287, 289–91 (Tex. App.—Dallas 1992, no pet.) (holding
felony murder was properly based on underlying offense of robbery even though death
was direct result of the offense).
However, in Loredo v. State, this court determined a dangerous act was committed
in furtherance of an underlying felony in a situation analogous to the present case. 130
S.W.3d 275 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). The appellant and his
fellow conspirators entered a restaurant after it was closed, intending to steal money from
a safe. Id. at 277–78. After unsuccessfully trying to open the safe, the conspirators
abandoned their goal of stealing money and ignited a fire in an attempt to “cover their
tracks.” Id. at 278–80. Subsequently, two firefighters were asphyxiated and died while
searching the restaurant. Id. at 278. It is well-settled that burglary is complete at the
moment an individual unlawfully enters a building not open to the public with the intent
to commit theft, regardless of whether the theft is ever completed. See Richardson v.
State, 888 S.W.2d 822, 824 (Tex. Crim. App. 1994). Nevertheless, our court concluded
the conspirators’ ignition of a fire in a building in order to destroy inculpatory evidence
was a dangerous act performed during the course and in furtherance of the burglary,
supporting appellant’s felony-murder conviction. Loredo, 130 S.W.3d at 279–80. In
light of this precedent, evidence that the shooting occurred shortly after Officer Canales
received the money and while the conspirators were attempting to obtain the Budget
truck key supports a finding the shooting was committed during the course and in
furtherance of the theft.
Appellants next contend the evidence is insufficient to support a finding the
shooting “should have been anticipated as a result of carrying out the conspiracy” to
9
commit theft. Tex. Penal Code Ann. § 7.02(b). Appellants argue (1) theft is not a crime
usually associated with violence or shootings, (2) there was no evidence regarding a plan
to rob Officer Canales at gunpoint, (3) neither Nava nor Mendez was aware Carrillo
possessed or even owned a gun, (4) there is no evidence regarding how or when the gun
was placed inside Nava’s van or how the gun was stored once in the van (i.e., in plain
view or hidden), (5) the fact that the conspirators brought Doe, a fourteen-year girl,
proves they did not anticipate violence, (6) there is no evidence that any items were
thrown from Nava’s van as it was driven away from the Fiesta parking lot, and (7) police
did not find weapons in the van. Appellants also cite several cases for the proposition
evidence is sufficient to support a finding a non-shooting conspirator should have
anticipated a shooting when evidence establishes he was actually aware the shooting
conspirator possessed a gun during the commission of a felony. See, e.g., Longoria v.
State, 154 S.W.3d 747, 757 n.7 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d);
Tippitt v. State, 41 S.W.3d 316, 324–26 (Tex. App.—Fort Worth 2001, no pet.),
overruled on other grounds by Hooper, 214 S.W.3d 9.
We agree with appellants that theft is not a crime which inherently entails the
threat of violence. However, we conclude there is legally sufficient evidence to support a
finding that appellants should have anticipated a shooting would occur during the
commission of the underlying theft.
When Mendez and Sergeant Calderon discussed where they would meet to
conduct the sale of the televisions, Mendez repeatedly insisted Sergeant Calderon bring
the televisions to her specified location. In fact, Mendez told Sergeant Calderon that she
did not want to meet at his location because “she was not familiar with the area . . . and
she didn’t want to come out there because she didn’t know anyone or anything out there.”
There is intrinsically a certain tension and level of distrust when someone travels to a
strange location and meets with an unknown person regarding the purchase of stolen
property; “There is no honor among thieves.” The conspirators obviously were
suspicious of Officer Canales because they wanted to test the televisions to ensure they
10
worked. It is not unforeseeable that this distrust and tension could lead to violence,
especially considering of the high monetary value of the thirty-four televisions. The
conspirators ultimately agreed to travel to the Fiesta parking lot, meaning they accepted
the risks inherent with conducting unlawful business with unfamiliar thieves in an
unfamiliar location.
In addition to the potentially volatile nature of this criminal transaction, the
circumstantial evidence supports a finding that Nava and Mendez knew a gun was
brought to the Fiesta parking lot. Shortly after the conspirators arrived, Officer Canales
showed them the televisions in the Budget truck, and all of the parties stepped into the
cargo-area of the truck. Initially, Officer Canales and Carrillo discussed the price for the
televisions. However, Mendez interrupted and told Carrillo she was going to handle
negotiations. After Mendez and Carrillo argued regarding who would speak with Officer
Canales, Carrillo exited the truck, and Mendez began negotiating with Officer Canales.
Carrillo proceeded to Nava’s van, reached inside the passenger side of the van, and
removed something wrapped in a “white towel.” Carrillo then leaned into the Budget
truck and placed the object inside. Sergeant Calderon testified that Nava, Mendez, and
Doe were in the cargo-area of the Budget truck and unable to see Carrillo when he
retrieved the towel-wrapped object. Nevertheless, during police questioning, Nava
stated, “When [Carrillo] got out of my van, he did get out with something, . . . a rag . . .
but[] he never told me he had a weapon.” Similarly, Mendez told police she saw Carrillo
proceed to the Budget truck with a “white bulk” she “imagine[d]” was a pistol.
While Carrillo retrieved the object from Nava’s van, Mendez was busy talking to
Officer Canales inside the Budget truck. Sergeant Calderon opined that it appeared
Mendez was purposefully diverting Officer Canales’s attention so that he would not see
what Carrillo was doing. This opinion is supported by the next, bizarre event. Mendez
succeeded in convincing Officer Canales to lower his price from $6,500 to $6,000. She
also disparaged Carrillo to Officer Canales, saying she should not have brought Carrillo.
However, Nava then told Mendez that Carrillo “says . . . give [Officer Canales] the six
11
thousand five hundred for the whole package.” Unbelievably, notwithstanding that she
had negotiated a lower price, Mendez acceded to Carrillo’s order. Additionally, despite
Nava’s and Mendez’s protestations, Carrillo decided they would pay Officer Canales
before testing the televisions.
We conclude the foregoing evidence supports a finding that appellants were aware
Carrillo was removing an object from Nava’s van and placing it in the Budget truck. The
jury could reasonably infer that Carrillo was not acting rogue because he performed the
act when any of his co-conspirators could have exited the Budget truck and observed
him. The fact that one party to an offense performs an act without concern that other
parties might observe the act may support an inference the parties had previously
discussed performance of the act. See Nzewi v. State, 359 S.W. 829, 837 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) (concluding party’s instructing woman to testify
falsely while other party was in and out of earshot supported finding parties had
previously discussed witness-tampering scheme). Additionally, statements by Nava and
Mendez that they saw Carrillo at the scene with a white towel-wrapped object—even
though Sergeant Calderon testified Nava and Mendez were unable to see Carrillo retrieve
the object—supports a finding that they knew Carrillo would be retrieving the object.
Moreover, the fact Mendez assumed control of the negotiations, negotiated a lower price,
and criticized Carrillo to Officer Canales, but immediately acquiesced to Carrillo’s order
to pay the original higher price supports a finding the conspirators planned more than a
straightforward negotiation for stolen televisions and a finding that Carrillo retrieved the
towel-wrapped object as part of the plan.
The parties then discussed travel arrangements for transporting the televisions to
Nava’s house for testing. When Officer Canales stated he intended to travel with them to
test the televisions, Nava responded, “How about you get out there at the light?” The
conspirators culled their cash and paid Officer Canales $6,500. Carrillo decided he and
Mendez would drive in the Budget truck, and Nava, Doe, and Officer Canales would
12
drive in Nava’s van.3 Officer Canales then said “It’s a done deal” and nonchalantly
attempted to distance himself from the conspirators. The conspirators repeatedly asked
Officer Canales for his key, but he stalled. Even Doe directed Officer Canales to produce
the key and enter Nava’s van. Officer Canales again said, “It’s a done deal.” Carrillo
asked Officer Canales if he “put the keys in there,” apparently referring to the Budget
truck. Carrillo returned to the Budget truck and entered the cab (unlike earlier when he
had merely placed the towel-wrapped object into the cab), then exited and approached
Officer Canales from behind. Carrillo followed Officer Canales around the rear of the
Budget truck, drew a gun, and asked, “Do you have the key or not?!” Nava yelled “The
Money!” and “Shoot him!”4 Carrillo then said, “Do you have the keys?! Give me the
Money or I’ll kill you, asshole!” and shot Officer Canales in his back. Nava, Mendez,
and Doe returned to Nava’s van and fled the scene.
The foregoing evidence supports several important findings. First, the evidence
supports a finding that the towel-wrapped object Carrillo placed in the Budget truck was
a gun. While the conspirators were asking Officer Canales to provide the key, Carrillo
entered the cab of the Budget truck. The jury could have reasonably found that Carrillo
was looking for the truck key and retrieving the object he placed earlier. White shorts
were found in the console of the Budget truck following the incident. DNA recovered
from the shorts did not match the DNA of Officer Canales, Nava, Mendez, Carrillo, or
Doe. However, during police questioning, Nava stated that he keeps clothing in his van,
including shorts. The white shorts were consistent with Carrillo placing a white towel-
wrapped object in the Budget truck. Carrillo’s cell phone was also found in the Budget
truck after the shooting. However, it is reasonable to believe Carrillo used the shorts to
conceal an item he did not want noticed, as opposed to a phone. Hence, the jury could
3
At this point, the informant had left the scene, apparently without raising any suspicion.
4
The State’s translation expert testified that he listened to the undercover recording repeatedly
and with certain audio enhancements. The expert testified Nava yelled the Spanish word “tirale”
immediately before Carrillo shot Officer Canales. According to the expert, “tirale” as used in this context
meant “shoot him.” Although there was conflicting evidence regarding the meaning of “tirale” and
whether it was even said, the jury was entitled to believe the State’s expert.
13
have reasonably concluded Carrillo furtively placed his gun in the Budget truck and then
retrieved it before the shooting.
We have already concluded the evidence supports a finding that Nava and Mendez
were aware Carrillo placed an object in the cab of the Budget truck. It is also reasonable
to infer Nava and Mendez knew the object was a gun. This inference is further supported
by the fact the conspirators believed they needed a gun because they were bringing a
massive amount of cash to meet unknown thieves at an unknown location. Finally, the
fact that Nava encouraged Carrillo to shoot Officer Canales supports a finding that he
knew Carrillo possessed a gun. Accordingly, viewed collectively, the evidence supports
the jury’s finding that Nava and Mendez should have anticipated the shooting. We
overrule the third issues in Nava’s murder appeal and Mendez’s appeal
C. Sufficiency Review: Organized Criminal Activity
We next consider Nava’s contention that the evidence is legally insufficient to
support his conviction of organized criminal activity.
Relevant to the instant case, a person commits “engaging in organized criminal
activity” if, with the intent to establish, maintain, or participate in a combination or in the
profits of a combination, he commits theft. Tex. Penal Code Ann. § 71.02(a)(1) (West
Supp. 2012). “Profits” means property constituting or derived from any proceeds
obtained, directly or indirectly, from the theft. Id. § 71.01(c) (West 2011).
“Combination” means three or more persons who collaborate in carrying on criminal
activities. Id. § 71.01(a). Here, the State alleged Mendez, Nava, and Carrillo comprised
the combination.
As discussed above, the evidence is sufficient to support the jury’s finding that
Nava was criminally responsible for the theft. Thus, we overrule Nava’s challenge to
sufficiency of evidence supporting the theft underlying his organized-criminal-activity
conviction.
14
Nava also contends the evidence is insufficient to support the jury’s finding that he
participated in a combination by collaborating with Mendez and Carrillo in carrying on
criminal activities. The phrase “collaborate in carrying on criminal activities” has been
defined as intent “to work together in a continuing course of criminal activities.” Nguyen
v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999).5
There was substantial evidence that Nava, Mendez, and Carrillo knew each other
and frequently spoke on the telephone. It was also established that Mendez sold stolen
goods at the flea market. A person who worked at Mendez’s flea market testified that
Nava regularly brought tools to sell at Mendez’s booth. Mendez’s boyfriend told police
he was jealous of the amount of time Mendez was spending with Nava and Carrillo.
However, despite this testimony, Nava’s wife testified Nava was not involved in business
with Mendez at the time of the murder. The fact that Nava did not inform his wife
regarding his dealings with Mendez supports an inference there was a reason Nava
wanted the dealings to remain secret.
Mendez told Sergeant Calderon on the telephone that she was interested in
continuing to buy stolen goods from him in the future. While negotiating with Officer
Canales in the Fiesta parking lot, Mendez stated, “[W]e’ll try [the televisions] out over
there at [Nava’s] house. There’s no problem. We’re decent people. . . Hard workers like
you, business people.” Mendez and Officer Canales later engaged in the following
dialogue:
Mendez: [C]an’t you let them go for six thousand even? Well we’re going
to keep buying from you. Because if we move this fast, we’ll get from you
soon again. You say you get every fifteen days. You know I also buy
tools.
Officer Canales: Yes, it’s that, it’s that, like I tell you, I, I steal them[.] I
have a partner and we steal them from the trucks when they are in transit.
Mendez: M-hm.
5
We discuss this definition in depth below in the subsection entitled “B. ‘Collaborate in Carrying
On.’”
15
Officer Canales: So, we never know what we’re going to[—]what’s going
to come out.
Mendez: No well, of course not. No, that’s why I tell you we have
businesses and the three of us are business people.
Mendez’s representations are strong circumstantial evidence that she, Nava, and
Carrillo intended to collaborate in buying and selling stolen items. Considering the
aforementioned facts as a whole, we conclude the evidence is sufficient to support a
finding that Nava, Mendez, and Carrillo intended to establish a combination.6
Accordingly, we overrule the second issue in Nava’s organized-criminal-activity appeal.
III. MISSING RECORD
In the first issue of both his felony-murder and organized-criminal-activity
appeals, Nava contends he is entitled to a new trial because a portion of the record
necessary to resolution of his appeals is missing. In her first issue, Mendez presents the
same argument.
At some point during the appellate process, it was discovered that the record of
counsel conferring with the trial court, questioning veniremen at the bench, and making
challenges for cause during voir dire was missing. The remainder of the voir dire record
has been preserved. Texas Rule of Appellate Procedure 34.6(f) provides,
(f) Reporter’s Record Lost or Destroyed. An appellant is entitled to a new
trial under the following circumstances:
(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant
portion of the court reporter’s notes and records has been lost or destroyed
or—if the proceedings were electronically recorded—a significant portion
of the recording has been lost or destroyed or is inaudible;
6
The Court of Criminal Appeals has determined that, for purposes of organized criminal activity,
the defendant need not participate in a combination which has already engaged in criminal activities; it is
sufficient if the defendant intends to establish a combination which will engage in future criminal
activities. Nguyen, 1 S.W.3d at 697. Accordingly, having determined the evidence is sufficient to
support a finding that Nava intended the combination to continue criminal activities after the underlying
theft, we will not discuss extensive evidence the State presented regarding a prior theft of power tools
committed by at least Mendez and Carrillo.
16
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the
lost or destroyed exhibit, is necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot
be replaced by agreement of the parties, or the lost or destroyed exhibit
cannot be replaced either by agreement of the parties or with a copy
determined by the trial court to accurately duplicate with reasonable
certainty the original exhibit.
Tex. R. App. P. 34.6(f).
We abated the appeal for the trial court to conduct a hearing and make findings of
fact relative to Rule 34.6(f). The trial court conducted three hearings from March 16,
2011 to June 3, 2011. During these hearings, the prosecutors, Nava’s trial counsel, Rudy
Duarte and Casey Keirnan, and Mendez’s trial counsel, Diana Olvera and Bob Loper,
testified regarding their recollection of voir dire. It is undisputed the missing portion of
the record is irretrievable. Duarte and Loper testified that venireman No. 30 was
disqualified because he would not consider the full range of punishment. However, the
trial court denied appellants’ challenge for cause regarding venireman No. 30, and
appellants used a peremptory strike on him. Keirnan testified that he seemed to
remember Loper requesting an additional peremptory strike. Loper could not remember
if he requested an additional peremptory strike or if he identified an objectionable
venireman who sat on the jury; however, he testified that both appellants used all of their
peremptory strikes. Loper also testified that appellants challenged other veniremen for
cause, which the trial court apparently denied. One of the trial prosecutors testified that
he specifically remembers thinking after the jury was selected that there were no
appealable issues regarding voir dire, meaning either any objectionable venireman had
been rehabilitated or error had not been preserved. The prosecutors also testified that
veniremen were called to the bench for individual questioning during the challenge-for-
cause portion of voir dire.
17
The trial court testified7 that it remembered (1) denying appellants’ challenge for
cause to venireman No. 30 because the venireman had been asked an improper
commitment question, namely, whether he could consider probation in a theft case in
which someone was killed in the course of the theft,8 (2) Keirnan requested two
additional peremptory strikes, and (3) appellants did not identify an objectionable
venireman who sat on the jury.9 The trial court also expressed, “So whether I
rehabilitated anybody I don’t specifically remember but I typically do[.] So if the
challenges for cause that are on the record, that the statements by the jurors are on the
record are adequate to disqualify them without any further record then that record is very
significant and it’s necessary too.”10
After the hearings, the trial court made the following findings of fact and
conclusions of law:
(1) Appellants made a timely request for a reporter’s record.
(2) The record of the bench conference following voir dire is missing
because of electronic equipment failure. The record is missing through no
fault of appellants.
(3) That missing record is significant in that it memorialized (a) questions
by the Court of veniremen who were challenged for cause and their
answers, (b) the Court’s rulings on motions for cause, and (c) the failure of
appellants to preserve error with respect to rulings on motions for cause.
7
The trial court provided its recollection of the pertinent events after the State requested the court
do so either as testimony or in a bill of exceptions. Appellate counsel for Mendez objected to the trial
court testifying. The trial court did not rule on the objection and proceeded to recall events that occurred
during voir dire. We consider these recollections as testimony because, as discussed below, the trial court
relied on its recollections when making its factual findings.
8
We do not consider whether this was an improper voir dire question.
9
To preserve error regarding the trial court’s denial of a challenge for cause, the defendant must
(1) assert a specific challenge for cause, (2) use a peremptory strike on the challenged venireman, (3)
exhaust his peremptory strikes, (4) request additional strikes, and (5) after the trial court denies the
request for additional strikes, identify an objectionable venireman who sat on the jury. Davis v. State, 329
S.W.3d 798, 807 (Tex. Crim. App. 2010).
10
Appellants also emphasize the fact the trial court lamented during one of the abatement
hearings, “[Q]uite frankly I think we’re going to have to re-try this case because of [the missing record].”
However, it is our role to determine whether appellants are entitled to a new trial under Rule 34.6(f).
18
(4) The record is not necessary to the appeal since it memorialized no
preserved error.
(5) The missing portion of the record cannot be replaced by agreement of
the parties.
Appellants first argue the lost portion of the record is necessary to resolution of
their appeals because they are unable to determine whether the trial court erroneously
denied a challenge for cause. However, during one of the abatement hearings, the trial
court testified that appellants never identified an objectionable venireman who sat on the
jury. The trial court obviously relied on this testimony when making its findings of fact
because the court found the missing portion of the record memorialized “the failure of
appellants to preserve error with respect to rulings on motions for cause.” Neither
appellant complains on appeal that the trial court erred by relying on its own testimony.
Accordingly, the missing portion of the record is not necessary to resolution of this issue
because it has not been preserved for appeal.
Appellants also argue that the lost portion of the record is necessary to the
resolution of their appeals because they are unable to determine whether counsel was
ineffective during jury selection. In 2001, the Court of Criminal Appeals seemed to lean
toward a rule that missing records will readily be determined to be necessary for
resolution of an ineffective-assistance-of-counsel claim. In Kirtley v. State, appellant
initially pled guilty to murder, and the trial court deferred adjudication of guilt for ten
years. 56 S.W.3d 48, 49 (Tex. Crim. App. 2001). Subsequently, the State moved to
adjudicate guilt, and the trial court found appellant violated terms of his probation and
sentenced him to thirty years’ confinement. Id. at 49–50. However, the entire reporter’s
record of the adjudication-of-guilt proceeding was destroyed through no fault of
appellant. Id. at 50. On appeal, appellant argued that he was entitled to a new
punishment hearing because he was precluded from asserting an ineffective-assistance-
of-counsel claim. Id. In an unpublished opinion, the court of appeals described
appellant’s argument as, “[T]he lack of a reporter’s record precludes him from asserting
that he received ineffective assistance of counsel at the adjudication/punishment hearing,
19
and the punishment assessed, thirty years[’] confinement, exceeded the plea bargain
agreement.” Kirtley v. State, No. 05-99-00236-CR, 2000 WL 688602, at *2 (Tex.
App.—Dallas May 19, 2000) (mem. op., not designated for publication), rev’d, 56
S.W.3d 48 (Tex. Crim. App. 2001). The court of appeals held that the missing record
was not necessary to resolution of the appeal because the Code of Criminal Procedure did
not authorize appellant to appeal from the adjudication-of-guilt proceeding. Kirtley, 56
S.W.3d at 50.
The Court of Criminal Appeals disagreed, recognizing appellant may appeal errors
occurring during the punishment phase of an adjudication-of-guilt proceeding. Id. at 51–
52. The court then summarily held, “Because appellant can make [an ineffective-
assistance-of-counsel claim], the record is ‘necessary to the appeal’s resolution’ as
required by Rule 34.6(f)(3).” Id. at 52. Interestingly, the court arrived at this conclusion
without even mentioning the basis for appellant’s argument that the record may show
ineffective assistance of counsel.11 Legal commentators have recognized the court’s
truncated analysis:
The [Kirtley] court engaged in no speculation as to whether the [ineffective-
assistance-of-counsel claim] had sufficient actual or potential merit or
whether there was any likelihood that the matter could be resolved without
detailed scrutiny of the reporter’s record. Perhaps, then, there are certain
issues that by their nature and without further analysis make a reporter’s
record necessary to their resolution. If so, Kirtley seems to hold that a
claim of ineffective representation at the proceeding is one of those.
43B George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice &
Procedure § 55:99 (3d ed. 2011).
However, a year later, the Court of Criminal Appeals held that speculation a
missing record may memorialize error does not satisfy the necessity requirement of Rule
11
The Court of Criminal Appeals remanded the case for the trial court to determine whether the
parties could agree on a complete reporter’s record. Kirtley, 56 S.W.3d at 52. Ultimately, the trial court
found the parties could not agree on a record, and the court of appeals reversed and remanded for a new
punishment hearing. Kirtley v. State, No. 05-99-00236-CR, 2002 WL 413806, at *1 (Tex. App.—Dallas
Mar. 18, 2002, no pet.) (mem. op., not designated for publication).
20
34.6(f). In Routier v. State, fifty-four pages from one volume of the reporter’s record
could not be certified and were thus unusable for appellate review. 112 S.W.3d 554, 570
(Tex. Crim. App. 2003). Appellant argued she was entitled to a new trial pursuant to
Rule 34.6(f). Id. The Court of Criminal Appeals explained that Rule 34.6(f) issues
“should be viewed from the appellant’s standpoint, and any reasonable doubt resolved in
favor of the appellant.” Id. at 570–71. The court also recognized, “The provision in the
rule that the appellant show that the missing portion of the record is necessary to her
appeal is itself a harm analysis.” Id. at 571.
Appellant claimed the unusable portion of the record was necessary to resolution
of the appeal because, inter alia, it memorialized preliminary instructions provided to the
morning-session venire which may have been erroneous. Id. The court held, “The
suggestion that instructions may have been erroneous, without more, does not make that
portion of the record necessary to her appeal.” Id. The court also concluded the unusable
portion of the record was not necessary because a recording of the afternoon-session
venire demonstrated that the instructions provided during that session were “very similar”
to the court reporter’s notes regarding instructions provided during the morning session.
Id.
Routier appears to be a reverse course from Kirtley, in which a naked assertion
that the missing record may establish ineffective assistance of counsel was held sufficient
to satisfy the necessity requirement of Rule 34.6(f). Thus, the rule requires an appellant
to do more than merely suggest the missing portion of the record reveals reversible error
in order for review of that portion to be necessary. See Issac v. State, 989 S.W.2d 754,
757 (Tex. Crim. App. 1999) (“Although the lack of a record may in some cases deprive
an appellate court of the ability to determine whether the absent portions are necessary to
the appeal’s resolution, an automatic rule of reversal is not justified.”).
Appellants argue the missing portion of the record may reveal that trial counsel,
without a reasonable strategy, failed to identify to the trial court an objectionable
venireman who said something which rendered him challengeable for cause when
21
individually questioned at the bench and ultimately sat on the jury. Although conjecture
may have been sufficient in Kirtley, it is not sufficient under Routier. It is not necessary
for us to view the missing portion of the record to resolve a claim that the portion may or
may not reveal trial counsel’s ineffectiveness, particularly when appellants do not argue
trial counsel were ineffective in conducting voir dire or in any other aspect of their
representation. See Jimenez v. State, 307 S.W.3d 325, 334 (Tex. App.—San Antonio
2009, pet. ref’d) (relying on Routier and holding appellant’s mere suggestion that
transcript of Spanish recording may have supported additional appellate issue did not
prove necessity under Rule 34.6(f)). We also note that it is unlikely the missing portion
of the record would establish appellants’ trial counsel had no viable strategic reason for
failing to preserve jury-selection error if they in fact did fail to preserve error. See
Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (noting appellate
courts are to presume counsel provided effective assistance and, in “the majority of cases,
‘the record on direct appeal is undeveloped and cannot adequately reflect the motives
behind trial counsel’s actions.’”). Accordingly, we hold appellants have not met their
burden of proving that the missing portion of the record is necessary to resolution of their
appeals. We overrule appellants’ first issue.12
IV. JURY CHARGE
A. Applicability of Section 7.02(a)(2) to Felony Murder
In the second issue of his felony-murder appeal, Nava contends the trial court
erred by including in the application portion of the felony-murder jury charge an
instruction regarding accomplice responsibility under section 7.02(a)(2) of the Penal
Code. Mendez raises the same second issue in her appeal.
12
Our conclusion that appellants are not entitled to relief under Rule 34.6(f) does not preclude
them from complaining about the missing portion of the record in future proceedings.
22
1. Error Analysis
We must first determine whether there was error in the jury charge. Barrios v.
State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). In the application portion of the
jury charge, the trial court submitted an instruction whereby the jury was authorized to
convict appellants of felony murder as parties to the offense, either as accomplices under
section 7.02(a)(2) or conspirators under section 7.02(b). We explained section 7.02(b)
conspirator responsibility in the legal-sufficiency section of this opinion, supra. Under
section 7.02(a)(2), an accomplice is criminally responsible for conduct of another person
if, “acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.” Tex.
Penal Code Ann. § 7.02(a)(2) (emphasis added).
Appellants argue section 7.02(a)(2) does not apply in the context of felony murder
because an accomplice cannot act “with intent to promote or assist the commission of”
felony murder, an unintentional offense. See Threadgill v. State, 146 S.W.3d 654, 665
(Tex. Crim. App. 2004) (“Felony murder is an unintentional murder committed in the
course of committing a felony.”). Indeed, the felony-murder statute does not require a
culpable mental state, even relative to the “commits an act clearly dangerous to human
life” element of the offense. See Tex. Penal Code Ann. § 19.02(b)(3); Lomax v. State,
233 S.W.3d 302, 305 & n.7, 307 & n.16 (Tex. Crim. App. 2007); Driver v. State, 358
S.W.3d 270, 278–79 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
However, the Court of Criminal Appeals has held that a defendant charged as a
party to capital murder is not entitled to submission of felony murder as a lesser-included
offense unless the evidence shows,
(1) for purposes of party liability under Section 7.02(a)(2), [defendant]
himself did not intend death of [victim] or another;
(2) for purposes of conspiracy liability under Section 7.02(b), [principal
actor’s] act of shooting [victim] was not committed in furtherance of a
conspiracy; or
23
(3) for purposes of conspiracy liability under Section 7.02(b), [defendant]
should not have anticipated that [principal actor] would shoot [victim].
Ex parte Thompson, 179 S.W.3d 549, 558–59 (Tex. Crim. App. 2005) (emphasis added);
see also Salinas v. State, 163 S.W.3d 734, 741–42 (Tex. Crim. App. 2005) (explaining
capital-murder defendant entitled to instruction on lesser-included offense of felony
murder only if evidence supported finding defendant, either as principal or party, did not
have intent to kill); Santana v. State, 714 S.W.2d 1, 9 (Tex. Crim. App. 2005) (same).
Thus, the Court of Criminal Appeals has clearly held that accomplice responsibility under
section 7.02(a)(2) may be applicable, in at least some circumstances, to felony murder.
Appellants’ position was asserted by the concurring judge in Ex parte Thompson,
who opined that convicting an accomplice of felony murder seemed at variance with
section 7.02(a)(2), which requires the accomplice act with intent to promote or assist the
commission of the offense for which he is being held criminally responsible:
But it is questionable whether an accomplice’s lesser culpable mental state
under § 7.02(a)(2) could ever raise felony murder as a lesser-included
offense. Felony murder attaches no culpable mental state to the killing
itself, but § 7.02(a)(2) requires that the defendant have the “intent to
promote or assist” the commission of the offense. If applicant lacked the
intent to kill, and merely intended to commit the underlying felony, then it
would seem that the only felony applicant intended to promote or assist
would be the underlying felony. A prior decision applying § 7.02(a)(2) to
manslaughter may suggest a more expansive reading of the statute
[referring to Mendez v. State, 575 S.W.2d 36 (Tex. Crim. App. 1979)], but
it remains to be seen whether the reading would be expansive enough to
infer an “intent to promote or assist” for a result-of-conduct offense, where
a culpable mental state for the result is completely absent.
Id. at 564–65 (Keller, P.J., concurring).
In Mendez, the Court of Criminal Appeals considered whether section 7.02(a)(2)
accomplice responsibility applies to involuntary manslaughter, which does not require an
intent to kill. 575 S.W.2d at 37. The defendant and two friends drove through a
neighborhood as one of the friends randomly shot at houses; one of the shots struck and
killed a sleeping man. Id. Appellant argued he could not be held criminally responsible
24
as an accomplice to involuntary manslaughter because of the incongruity of a finding that
he intentionally assisted the shooter in committing an unintentional crime. Id. at 37.
The court rejected this argument, concisely holding, “It is entirely possible to
intentionally solicit or assist an individual in committing a reckless act. We hold that the
law of parties does apply to the substantive offense of involuntary manslaughter.” Id. at
38.
It is logical that the defendant in Mendez was held responsible for his friend’s
involuntary manslaughter because the defendant intentionally assisted his friend in
committing involuntary manslaughter by recklessly killing someone—an offense that
necessarily included commission of an act clearly dangerous to human life. This same
logic applies in the felony-murder context when the accomplice intentionally assists
another in committing a felony that necessarily includes commission of an act clearly
dangerous to human life. See, e.g., Miles v. State, 259 S.W.3d 240, 244, 255–56 (Tex.
App.—Texarkana 2008, pet. ref’d) (concluding evidence sufficient to support finding
defendant criminally responsible as accomplice to felony murder because he, with intent
to assist in the commission of deadly conduct, aided another in committing deadly
conduct that resulted in a fatality); Miller v. State, 83 S.W.3d 308, 313–18 (Tex. App.—
Austin 2002, pet. ref’d) (same).
However, should the same logic apply when the underlying felony does not
necessarily include commission of an act clearly dangerous to human life? The Court of
Criminal Appeals appears to have answered affirmatively in Ex parte Thompson, in
which the act clearly dangerous to human life that caused another’s death (firing at
convenience store clerk while attempting to flee) was not an element of the underlying
offense (robbing the convenience store clerk). 179 S.W.3d at 551. Moreover, in Loredo,
this court held the evidence was sufficient to support the defendant’s conviction of felony
murder as an accomplice to the offense because he intentionally assisted another person
in committing a nonviolent felony (burglary of an empty restaurant) and a separate act
clearly dangerous to human life that caused the death of an individual (igniting a fire to
25
destroy evidence). 130 S.W.3d at 279–80. Although the Loredo court did not discuss the
proper jury charge regarding accomplice responsibility in the context of felony murder,
we find it instructive that the evidence was held sufficient to support the defendant’s
conviction because he intended to assist his accomplices in committing both the
underlying felony and the dangerous act which caused another’s death.
Accordingly, we hold that an accomplice may be held criminally responsible for
another’s felony murder pursuant to section 7.02(a)(2) when the accomplice intentionally
solicits, encourages, directs, aids, or attempts to aid his cohorts in committing both the
underlying felony and an act clearly dangerous to human life which caused a death (and
was committed in the course and in furtherance of the commission or attempted
commission of the underlying felony, or in immediate flight therefrom).13 Importantly,
the accomplice need not intend that the act be clearly dangerous to human life; as
explained above, there is no required culpable mental state for the “commits an act
clearly dangerous to human life” element of felony murder. See Lomax, 233 S.W.3d at
305 & n.7, 307 & n.16; Driver, 358 S.W.3d at 278–79. All that is required is for the
accomplice to intentionally assist another in committing an act which happens to have
been objectively dangerous to human life and caused another’s death. See Lomax, 233
S.W.3d at 307 & n.16 (citing Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim. App.
1983)).
In the instant case, the trial court instructed the jury to convict appellants of felony
murder based on accomplice responsibility if the following facts were proved beyond a
reasonable doubt:
[Mendez] and/or [Carrillo], did then and there unlawfully, intentionally or
knowingly commit or attempt to commit felony theft, and while in the
13
We recognize that the Court of Criminal Appeals did not espouse such a rule in Ex parte
Thompson. However, it was unnecessary for the court to weigh upon this issue because the court was
focused on the defendant’s right to the lesser-included offense of felony murder. Ex parte Thompson, 179
S.W.3d at 558–59. Moreover, our rule is further supported by application of section 7.02(a)(2) in the
capital-murder context, which requires an accomplice intend to assist both the underlying felony and
intentional killing. See Tippitt, 41 S.W.3d at 324.
26
course of and furtherance of the commission or attempted commission of
felony theft, [Carrillo] did commit an act clearly dangerous to human life, to
wit: shooting [Officer] Canales with a deadly weapon, namely, a firearm
and did thereby cause the death of [Officer] Canales, and that the
defendant, [Nava], with the intent to promote or assist the commission of
the offense, if any, solicited, encouraged, directed, aided or attempted to aid
[Mendez] and/or [Carrillo] to commit the offense. [Nava’s jury charge]
[Nava] and/or [Carrillo], did then and there unlawfully, intentionally or
knowingly commit or attempt to commit felony theft, and while in the
course of and furtherance of the commission or attempted commission of
felony theft, [Carrillo] did commit an act clearly dangerous to human life, to
wit: shooting [Officer] Canales with a deadly weapon, namely, a firearm
and did thereby cause the death of [Officer] Canales, and that the
defendant, [Mendez], with the intent to promote or assist the commission of
the offense, if any, solicited, encouraged, directed, aided or attempted to aid
[Nava] and/or [Carrillo] to commit the offense. [Mendez’s jury charge]
(emphasis added).
Appellants contend these charges authorized the jury to convict them of felony
murder if the jury merely found (1) appellants intentionally aided the commission of the
theft, and (2) Carrillo shot and killed Officer Canales during the course of and in
furtherance of the theft. Stated differently, appellants argue the jury was not required to
find appellants intended to assist in an act clearly dangerous to human life or were
criminally responsible as conspirators under section 7.02(b). We agree. The term
“offense” as used in these instructions may refer solely to felony theft, not felony theft
and the act clearly dangerous to human life. Accordingly, we hold the trial court erred by
submitting improper felony-murder instructions to the jury. See, e.g., Zuckerman v.
State, 591 S.W.2d 495, 496 (Tex. Crim. App. 1979) (concluding charge erroneous
because it authorized jury to convict defendant upon finding co-defendant was guilty and
without finding defendant was a party).
2. Harm Analysis
When, as here, the appellant failed to object to charge error, reversal is warranted
only if the appellant was egregiously harmed. See Warner v. State, 245 S.W.3d 458, 461
27
(Tex. Crim. App. 2008). To determine whether egregious harm occurred, we examine
the entire jury charge, the state of the evidence, including contested issues and weight of
the probative evidence, arguments of counsel, and any other relevant information
revealed by the record as a whole. Id. (citation omitted). The appellant must have
suffered actual, rather than theoretical, harm. Id. Actual harm is demonstrated if the
charge error affected the very basis of the case, deprived the defendant of a valuable
right, or vitally affected a defensive theory. Id. (citation omitted). Egregious harm is a
difficult standard to prove and must be considered on a case-by-case basis. Taylor v.
State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (citation omitted).
Overwhelming evidence was presented supporting a finding that Nava, Mendez,
and Carrillo were criminally responsible for the underlying theft. Additionally, although
the jury was instructed to acquit appellants if the evidence proved Carrillo acted in self
defense, it was clearly established that Carrillo unlawfully shot and killed Officer
Canales, ergo, committed an act clearly dangerous to human life that caused the death of
an individual. Moreover, the jury likely needed very little time to decide whether the
shooting occurred in the course and in furtherance of the theft because Carrillo
committed the shooting while attempting to obtain keys so he could transport the
televisions to Nava’s house.
Thus, the principle issue for the jury to resolve was whether appellants were
responsible as parties to the felony murder. Apparently, the State and appellants were
aware conviction of felony murder as an accomplice under section 7.02(a)(2) required a
finding that appellants intended to assist Carrillo in the commission of an act clearly
dangerous to human life:
The State did not argue Mendez was responsible as a party under section
7.02(a)(2);
The State argued Nava was responsible pursuant to section 7.02(a)(2) because
he yelled “Shoot him,” thus, encouraging Carrillo to commit the shooting;
The State never argued that the jury could convict appellants under section
7.02(a)(2) merely by finding they participated in the theft;
28
Mendez argued that, although section 7.02(a)(2) responsibility may apply to
Nava if he yelled “Shoot him,” this theory did not apply to her because she did
not encourage the shooting; and
Nava argued the State needed the jury to believe he said “Shoot him” because
he is guilty as a party under section 7.02(a)(2) only if he encouraged Carrillo to
shoot Officer Canales.
Thus, the last explanation regarding section 7.02(a)(2) the jury received before
deliberating was agreement by the State and appellant that accomplice responsibility
required an intent to assist in an act clearly dangerous to human life. See Bazanes v.
State, 310 S.W.3d 32, 37–38 (Tex. App.—Fort Worth 2010, pet. ref’d) (concluding no
egregious harm because, inter alia, State corrected any misperceptions during jury
argument); Bui v. State, 964 S.W.2d 335, 347 (Tex. App.—Texarkana 1998, pet. ref’d)
(same).
Relative to section 7.02(b), beginning during voir dire, the State and appellants
focused on the meaning of “anticipated.” In its opening statement, the State informed the
jury the evidence will prove appellants should have anticipated Carrillo was carrying a
gun. Appellants assured that the evidence would prove the opposite. The State went to
great efforts to prove circumstantially that appellants knew Carrillo brought a gun to the
Fiesta parking lot. Appellants presented contradictory evidence. Finally, during closing
arguments, the parties strenuously argued their respective “anticipation” positions. The
State argued appellants should have anticipated the shooting because (1) the conspirators
were engaged in a high-dollar theft with an unfamiliar person, (2) the conspirators always
intended to rob Officer Canales of the Budget truck, as evidenced by Nava’s custodial
statement that Mendez and Carrillo planned to return in the Budget truck, and (3) Nava
yelled, “Shoot him.” Appellants responded that it is nonsensical to believe the
conspirators intended to rob Officer Canales because they spent several minutes
negotiating a price and then paid him; had they truly intended to appropriate the Budget
truck, they would have done so when they first arrived. Furthermore, appellants argued
no weapons were found in Nava’s van. Appellants also noted several shortcomings in the
State’s evidence, including the fact (1) Sergeant Calderon provided testimony
29
inconsistent with his earlier written statements, (2) although officers testified at trial that
Nava had been on the passenger side of the van (where the shooting occurred) at the time
of the shooting, no officer memorialized this fact in his police report, and (3) the State
recently and “conveniently” discovered Nava said “Shoot him.”
Thus, appellants’ main defensive theory was that they could not have anticipated
the shooting. Beginning during voir dire, the jury was informed this was a critical issue
in the case. The jury was also told by both parties that whether Nava said “Shoot him”
was an important fact because, if so, he encouraged Carrillo to commit the shooting,
which meant he was responsible for the murder under section 7.02(a)(2); whether Nava
said “Shoot him” was hotly contested and subject to competing expert opinions.
Accordingly, the evidence and arguments do not support appellants’ contention that the
jury could have convicted them merely by finding they participated in a theft—in fact,
the exact opposite was communicated. For twelve days, the parties had disputed the
“anticipation” issue. Logically, the State would not have exerted so much effort to prove
appellants anticipated the shooting if they were guilty of felony murder simply by
participating in the theft.
We next examine the jury charge. As noted above, the term “offense” as used in
the erroneous instructions may refer solely to felony theft, not felony theft and the act
clearly dangerous to human life. This is particularly so because (1) the first part of the
instruction, referring to felony theft, mentions both Carrillo and Nava/Mendez, (2) the
second part, referring to the act clearly dangerous to human life, mentions only Carrillo,
and (3) the last part, referring to accomplice responsibility under 7.02(a)(2), mentions
both Carrillo and Nava/Mendez. Thus, the instructions seemingly associate accomplice
responsibility with only the felony theft. Nevertheless, the instructions also contain an
ambiguity because the first part refers to an offense by name (felony theft), but the
accomplice-responsibility part refers only to generic “offense.” The jury may have
construed “offense” to mean the whole crime at issue, namely felony murder, which
includes the felony theft and an act clearly dangerous to human life.
30
Accordingly, the jury would not necessarily interpret the ambiguous application
instructions to mandate conviction of appellants for felony murder if the jury merely
found appellants participated in the theft. Furthermore, based on the evidence and
arguments, we conclude it would have been unreasonable to construe the instruction in
this manner. We cannot conclude the jury believed it could avoid resolving the fiercely
contested issues regarding appellants’ “anticipation” and whether Nava said “Shoot him”
because of a loophole in the charge. Although the erroneous instruction theoretically
affected appellants’ main defensive theory, in actuality, it is highly unlikely the jury
convicted appellants of felony murder based solely on their involvement in the theft. See
Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (explaining factor affecting
harmfulness of charge error is likelihood verdict actually based on alternative theory of
culpability on which the jury was correctly instructed).14 Therefore, we hold that the
erroneous instruction did not cause appellants egregious harm. The second issues in
Nava’s murder appeal and Mendez’s appeal are overruled.
B. “Collaborate in Carrying On”
In her fourth issue, Mendez contends the trial court erred by refusing to submit her
requested definition for the phrase “collaborate in carrying on criminal activities” in lieu
of the definition actually submitted in the organized-criminal-activity jury charge.
A jury charge must contain an accurate statement of the law and all essential
elements of the offense. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).
As a general rule, terms need not be defined in the jury charge if they are not statutorily
defined. Ramos v. State, 303 S.W.3d 302, 308 (Tex. Crim. App. 2009). Jurors are
presumed to attach a common understanding to the meaning of terms. Smith v. State, 297
14
These facts differentiate the instant case from Green v. State, cited by appellants. In Green,
this court reversed appellant’s murder conviction because the charge erroneously authorized the jury to
convict appellant if it found his brother intentionally killed the decedent; there was no requirement that
the jury also find appellant intended to assist or encourage his brother in committing the murder. 233
S.W.3d 72, 79–86 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Unlike the erroneous instruction
in our case, the Green instruction was not ambiguous. Further, the prosecutor in Green compounded the
error during jury argument by contending appellant afforded his brother the opportunity to commit the
murder and was, thus, “equally guilty” for his brother’s actions. Id. at 82–83.
31
S.W.3d 260, 275 (Tex. Crim. App. 2009). However, terms which have a technical legal
meaning may need to be defined. Ramos, 303 S.W.3d at 308. This rule is particularly
true when there is a risk that jurors may arbitrarily apply their own personal definitions of
the term or when a definition of a term is required to assure a fair understanding of the
evidence. Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App. 2003). The fact
that an appellate court defined a statutorily-undefined term when reviewing sufficiency of
the evidence in one case does not necessarily mean the definition must or even should be
provided to the jury in future cases. See Kirsch v. State, 357 S.W.3d 645, 651 (Tex.
Crim. App. 2012).
The trial court has broad discretion in submitting proper definitions and
explanatory phrases to aid the jury. Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d). A trial court abuses its discretion when it acts
outside the wide zone of reasonable disagreement. See Casey v. State, 215 S.W.3d 870,
879 (Tex. Crim. App. 2007). When we review a definition for error, we must examine
the jury charge as a whole instead of as a series of isolated and unrelated statements.
Dinkins, 894 S.W.2d at 339.
As noted above, relevant to this case, a person engages in organized criminal
activity if, with the intent to establish, maintain, or participate in a combination or in the
profits of a combination, he commits theft. Tex. Penal Code Ann. § 71.02(a)(1).
“Combination” means three or more persons who collaborate in carrying on criminal
activities. Id. § 71.01(a).
In the jury charge, the trial court defined “collaborate in carrying on criminal
activities” as “working together with a specified number of others in specified criminal
activities.” This definition stems from a 1984 opinion in which a court of appeals was
determining whether the phrase rendered the statute unconstitutionally vague. See
Lucario v. State, 677 S.W.2d 693, 699 (Tex. App.—Houston [1st Dist.] 1984, no pet.). A
few years later, the Court of Criminal Appeals, considering sufficiency of the evidence,
utilized this definition as the meaning of the term “collaborate” (not the phrase
32
“collaborate in carrying on”) as used in the statute. Barber v. State, 764 S.W.2d 232, 236
(Tex. Crim. App. 1988) (citing Lucario).
However, in 1998, the Austin Court of Appeals addressed the definition when
considering sufficiency of the evidence, this time focusing on whether the phrase
“carrying on” requires some degree of continuity. Nguyen v. State, 977 S.W.2d 450,
454 (Tex. App.—Austin 1998), aff’d, 1 S.W.3d 694 (Tex. Crim. App. 1999). Based on
dictionary definitions and statutory context the court determined “collaborate in carrying
on” means to “work together in a continuing course of criminal activities.” Id. at 454–55.
On discretionary review, the Court of Criminal Appeals adopted this definition,
explaining “[t]he verb ‘carrying on’ connotes an action that continues over time. The
plural object, ‘activities,’ implies that the combination seeks to do more than one thing.”
Nguyen, 1 S.W.3d at 696–97.
During the charge conference, Mendez requested submission of the Nguyen
definition of “collaborate in carrying on,” which the trial court refused. Mendez argues
the definition submitted by the trial court did not clearly inform the jury that a
“combination” requires more than commission of the underlying, singular offense. We
agree the requested definition more clearly conveys that appellants must have intended
for the combination to engage in continuing criminal activities. However, the definition
provided by the trial court was not an inaccurate statement of the law. The phrase
“working together with a specified number of others in specified criminal activities”
refers to multiple criminal activities. Moreover, “combination” was defined in the charge
as “three or more persons who collaborate in carrying on criminal activities, although . . .
membership in the combination may change from time to time.” The fact that
membership may change indicates the combination has engaged or intends to engage in
more than one criminal activity. Accordingly, the plain meaning of the submitted
definition, when construed in light of the jury charge as a whole, did not lead the jury into
33
convicting Mendez of organized criminal activity based solely on her participation in the
underlying theft.15
Additionally, we hold “collaborate in carrying on” is not a phrase which has
acquired a technical legal meaning that must be provided to the jury. The Nguyen
definition of the phrase is based on the commonly understood meaning of “collaborate”
and “carrying on” and another statutory provision which mentions “continuing course of
conduct.” See Nguyen, 1 S.W.3d at 696–97; Nguyen, 977 S.W.2d at 454–55; see also
Tex. Penal Code Ann. § 71.03(4) (West 2011) (“It is no defense to prosecution under
Section 71.02 that . . . there is a change in the number or identity of persons in the
combination as long as two or more persons remain in the combination and are involved
in a continuing course of conduct constituting an offense under this chapter.”).
Finally, Mendez argues there is evidence the submitted definition actually did
confuse the jurors because, during deliberations, they sent the trial court a note with the
following question: “Does organized criminal activity require more than one offense to
meet the definition of the law? Please clarify.” The trial court responded, “You have
received all applicable instructions.” As we have explained, the jury should have gleaned
from the charge that the offense requires intent to establish or participate in a group of
persons working together in a continuous course of criminal activities. Nevertheless, the
answer to the jury’s inquiry is “no.” The Nguyen court held that additional “criminal
activities” need not be criminal offenses at all; they may be generally innocuous
activities—such as renting office space or leasing trucks—that are engaged in for the
purpose of committing more than a single offense. 1 S.W.3d at 697. Moreover, the
Nguyen court explained the combination need not have engaged in any criminal activities
15
If the Nguyen definition “intend to work together in a continuing course of criminal activities”
means the parties intend to work together in criminal activities indefinitely, then we would agree the trial
court’s definition “working together with a specified number of others in specified criminal activities”
was erroneous because “specified criminal activities” may logically be interpreted to mean a definite
number of activities. However, we construe Nguyen to mean the defendant is guilty of organized criminal
activity if she commits or conspires to commit the underlying offense with the intent to establish,
maintain, or participate in a group that has engaged, or she intends will engage, in at least one other
criminal activity.
34
at the time a defendant commits the underlying offense because all that is necessary is the
commission of an offense with the intent to establish a combination in the future. Id.16
Accordingly, we hold that the trial court did not abuse its discretion by refusing
Mendez’s requested definition. We do not “encourage courts to use [the submitted]
definition in the future, but in this particular case, it did not result in trial error.” Shipp v.
State, 331 S.W.3d 433, 444 (Tex. Crim. App. 2011) (Meyers, J., concurring). Mendez’s
fourth issued is overruled.
C. Sudden Passion Instruction
Finally, in her fifth issue, Mendez contends she is entitled to a new trial on
punishment because the trial court erred by refusing her request for a jury instruction
regarding sudden passion.
At the punishment phase of a murder trial, a defendant may raise the issue of
whether she caused the death under the immediate influence of sudden passion arising
from an adequate cause. See Tex. Penal Code Ann. § 19.02(d). “If the defendant proves
the issue in the affirmative by a preponderance of the evidence, the offense is a felony of
the second degree.” Id. “Sudden passion” is defined as “passion directly caused by and
arising out of provocation by the individual killed or another acting with the person killed
which passion arises at the time of the offense and is not solely the result of former
provocation.” Id. § 19.02(a)(2). “Adequate cause” is defined as “cause that would
commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary
temper, sufficient to render the mind incapable of cool reflection.” Id. § 19.02(a)(1).
The trial court must provide a sudden passion instruction if there is some evidence
to support it, even if that evidence is weak, impeached, or contradicted. See Trevino v.
State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). However, the evidence “cannot be
16
In fact, it is not necessary that the defendant have completed the underlying offense. Under
section 71.02(a), a person commits organized criminal activity if he “commits or conspires to commit”
certain enumerated offenses. Tex. Penal Code Ann. § 71.02(a) (emphasis added). However, the State
charged appellants with having committed the underlying offense. Thus, the “or conspires to commit”
language is inapplicable.
35
so weak, contested, or incredible that it could not support such a finding by a rational
jury.” McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005) (citing Trevino,
100 S.W.3d at 238).
Mendez argues she was entitled to a sudden passion instruction because some
evidence supported a finding that Carrillo was provoked by Officer Canales’s refusal to
provide the key to the Budget truck and apparent plan to steal the conspirators’ $6,500.
However, even considering only facts favorable to Mendez, we conclude the evidence did
not entitle her to an instruction on sudden passion. Carrillo, who was extremely angry
and panicking that Officer Carrillo appeared to be “double-crossing” the conspirators,
approached Officer Canales from behind and pointed a gun at him. Carrillo demanded
the key three separate times before shooting Officer Canales in the back. These facts do
not support a finding that Carrillo committed the shooting under the immediate influence
of sudden passion arising from an adequate cause. Under the circumstances, being duped
out of even a very substantial amount of money would not commonly produce a degree
of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render
the mind incapable of cool reflection.
Furthermore, Carrillo was the party who provoked the situation by brandishing a
gun; before that point, the conspirators—albeit becoming increasingly frustrated by the
situation—were merely ordering Officer Canales to produce the key and enter Nava’s
van, and Officer Canales was still at the scene, looking as though he planned to flee with
the money. See Smith v. State, 355 S.W.3d 138, 149 (Tex. App.—Houston [1st Dist.]
2011, pet. ref’d) (“A defendant may not rely on a cause of his own making, such as
precipitating a confrontation, to support his argument that he acted out of sudden passion
arising from adequate cause.”). Obviously, it was Carrillo’s own volatile temper that
caused the situation to escalate and him to draw the gun and pull the trigger. See Saldivar
v. State, 980 S.W.2d 475, 506 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (“[T]he
murderous acts of one not of ordinary temper or whose response to the alleged cause is
not objectively common in the ordinary, reasonable person [do] not support a voluntary
36
manslaughter issue.” (citation omitted)). Accordingly, the trial court did not err by
refusing Mendez’s requested instruction. Mendez’s fifth issue is overruled.
We affirm the trial court’s judgments for each appellant.
/s/ Charles W. Seymore
Justice
Panel consists of Justices Seymore, Boyce, and Yates.17
Publish — Tex. R. App. P. 47.2(b).
17
Senior Justice Leslie Brock Yates sitting by assignment.
37