Raul Longoria v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-21-00203-CR
________________
RAUL LONGORIA, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 19-05-06404-CR
________________________________________________________________________
MEMORANDUM OPINION
In a single appellate issue, Appellant challenges his conviction for aggravated
sexual assault of a disabled individual. Tex. Penal Code Ann. § 22.021. Specifically,
he contends that the “trial court erred by failing to provide a jury charge related to
the issue of consent as it relates to Aggravated Sexual Assault of a Disabled
Person[.]” We affirm.
1
I. Background
Appellant and Rachel were in a dating relationship and Appellant was staying
in a garage apartment on Rachel’s property. Rachel’s thirty-one-year-old disabled
daughter, Angie1, lived with Rachel in Rachel’s home on Rachel’s property.
According to State’s Exhibit 9, which was admitted into evidence without objection,
Angie is subject to a permanent guardianship because she is “incapacitated because
of a mental condition and [she][] is totally without capacity as provided by the Texas
Probate Code to care for herself, to manage her property and financial affairs, to
operate a motor vehicle and to vote in a public election.” Rachel is Angie’s
permanent guardian. On May 7, 2019, Angie called 911 from a gas station and
alleged that Longoria (her Mother’s boyfriend) had sexually assaulted her. Longoria
was indicted for aggravated sexual assault of a disabled person, with two
enhancement paragraphs (a prior felony for DWI and a prior felony of attempted
murder). Tex. Penal Code 22.021 (a)(2)(c). The jury found Appellant guilty of the
offense as alleged in the indictment, the trial court sentenced Appellant to eighty
years in the Institutional Division of the Texas Department of Criminal Justice, and
1
We refer to the victim and her family by pseudonyms to conceal their
identities. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be
treated with fairness and with respect for the victim’s dignity and privacy throughout
the criminal justice process”).
2
Appellant timely filed a notice of appeal. We summarize the testimony and evidence
below.
1. Karen Bailey’s Testimony
Bailey was one of the paramedics who responded to Angie Stewart’s 911 call.
She outlined her training and experience in her position, noting that records of
patient interactions are made at or near the time of the events reflected in those
records. Bailey described Angie as not only barefoot and very upset when the
paramedics first encountered her, but as wet from the rain. She further recalled that
Angie seemed to be “socially challenged[,]” in that although Angie was able to
answer basic questions, she did not seem to understand some of the things that were
happening.
During the drive to the hospital, Bailey made notes of Angie’s description of
the assault. The notes were admitted into evidence as part of State’s Exhibit 10.
According to the notes, EMS arrived on the scene and found Angie inside the gas
station, and they escorted Angie to the ambulance. Angie was “crying and upset and
wet from heavy rain.” According to the EMS notes, Angie told them “her Mom’s
boyfriend attacked her…that he came to the house smelling like alcohol and
appeared drunk…that he came in and started trying to kiss her and pulled her by the
hair…she tried to stop him but was unable…he ended up taking her shirt off and
sucking on her breasts…he forced her back to the bedroom [and] she was able to get
3
her taser and use it on him twice before he took it from her…then he used it on the
right side of her head, her right arm, and multiple times on her breasts…he sucked
on her private areas…and inserted his fingers in her vagina… . [She] ran from the
house once she was able and went to the gas station to call 911.”
Bailey’s notes further indicate that Angie was in pain but declined the offer
of pain medication.
2. Deputy Brown’s Testimony
Montgomery County Deputy Sheriff Joneataa Brown testified that she was
dispatched to Memorial Hermann Hospital to interview Angie regarding Angie’s
report of having been sexually assaulted. Her impression was that Angie was not
only distraught and frightened, but she also had the impression about her being
mentally delayed, that her demeanor and her speaking was “very childlike.”
While working with Angie and her mother, Brown obtained permission to
search their home for evidence, and she relayed information to the officers who went
to Rachel’s house to gather evidence. Deputy Brown also photographed Angie, and
State’s Exhibits 42-51 are photographs Brown took of Angie at the hospital. The
photographs of her showed scratches and bruises but Deputy Brown agreed the
photos do not show serious injuries. On cross-examination Deputy Brown agreed
that she did not see any “defensive wounds” on Angie, however that “just depends
on the person” and “[e]very situation is different depending on the type of trauma.”
4
3. Deputy Heaton’s Testimony
Deputy Sam Heaton, of the Montgomery County Sheriff’s Office, testified
that on the day of Angie Stewart’s assault, he and other deputies searched Angie and
her mother’s residence, and gathered evidence from that location. He recalled that
they found a “Taser” 2 on the bed, and a brass candlestick on the floor beside the bed.
Elsewhere in the home, they located and photographed what later was shown to be
Angie’s shirt and brassiere, her broken glasses, and a variety of other household
items.
4. Detective Frisina’s Testimony
Detective Anthony Frisina testified, describing his training and his law
enforcement experience during his eight years with the Montgomery County
Sheriff’s Office. On the day after Angie reported her assault, Frisina interviewed
Appellant at the jail. He described his approach to conducting a custodial interview,
noting that he begins by reading Miranda warnings,3 and ensuring that the suspect
expresses his understanding of his rights. He also recorded the interview. It is also
his standard procedure to attempt to build a rapport with the suspect in the hope of
obtaining truthful information about relevant events. Generally, he uses a technique
when conducting the interview that allows the suspect “to minimize” what happened
Although many of the trial participants referred to this object as a Taser,
2
other evidence shows that it was a Night Watchman brand stun gun.
3
Miranda v. Arizona, 384 U.S.436, 1966.
5
and give them a way to tell what happened without in a way that wouldn't portray
them in as bad of a light had they been fully forthcoming initially.”
Longoria did not testify at trial. However, his recorded interview was played
for the jury at trial. Describing the interview, Detective Frisina explained that in the
interview, after expressing an understanding of his rights, Longoria described Angie
as having adult like and childlike behaviors, that she still watched cartoons, and that
she had both an adult and a child-like voice. Appellant confirmed that he lived on
the same property as Rachel and Angie, and that he and Rachel shared a biological
child. Although Appellant and Rachel were no longer a couple, he continued to
reside at the property where he provided handyman services and fed the resident
animals. He explained that on the date of Angie’s alleged assault, he went from his
apartment to the house to have coffee and feed the animals; he acknowledged that
he was drinking that day. While he was there, he accidentally brushed against
Angie’s breasts while the two of them were sitting on the sofa watching television
and playing with the dog, and he admitted to flirtatiously touching her buttocks
through her clothing. He further acknowledged that the two of them watched
pornography on his phone. Longoria contended that Angie enjoyed doing so.
Appellant also stated that Angie voluntarily showed him her breasts, but denied that
he had violated her, although she apparently “took it that way.” When confronted
with the possibility that Angie’s SANE examination might have detected
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Appellant’s saliva on Angie’s breasts or vagina, Appellant blamed the dog and
Angie’s hygiene. He characterized their contact as consensual but indicated that he
would apologize to Angie if given the opportunity to do so.
Appellant denied seeking revenge against Rachel, although he admitted that
their relationship had become rocky in recent years. He expressed his awareness of
Angie’s disability, and after repeatedly denying that he had done anything wrong,
he conceded that he probably committed a crime against Angie.
According to Frisina, Longoria admitted during the interview that he touched
Angie’s breasts and vagina. Detective Frisina asked Longoria about the taser
recovered from the house, and Longoria said that he and Angie were both playing
with the “taser” and taking turns tasing each other and the dog. State’s Exhibit 53,
the recorded interview was admitted into evidence and played for the jury.
Frisina testified that in light of his training and experience he did not believe
that Appellant was being truthful.
Q. In light of your training and experience, are there some things about
the defendant’s interview that to you indicate he’s not being truthful?
A. Yes, sir.
Q. What are some of those things?
A. One of them, in particular, that stands out is editing out time and
space, skipping events or skipping a block of time, editing adverbs,
things of that nature.
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Q. What does that mean when you say editing out time? What does that
mean? Explain that to the jury, if you don’t mind.
A. One of the first things Raul said during our interview was he came
over for coffee, and then that was it, as if that’s all that happened that
day, indicating that someone may or may not be trying to avoid talking
about a particular event that happened that day that they don’t want to
talk about.
Q. So for example, him saying he came for coffee, that’s one little snip
of an event, and did the defendant give you any additional story after
that?
A. During that initial few minutes? No. We had to go back over it.
Q. So, for things like that where the defendant is not telling a full story,
did you have to go back and elicit more information from him?
A. Yes, sir.
Q. Is that a sign of deception based on your training and experience?
A. Yes, sir.
Q. Were there any other things that stood out in his interview and the
information he was giving that made you feel like he was being
deceptive?
A. The fact that I -- we continued -- we had to keep going over the story,
and occasionally, a piece that we had just previously talked about would
change.
For example, when Raul said he was touching Amber’s vagina, and
then he said he wasn’t. Then, he said he was through the clothes. That’s
a clear-cut -- at least to me based off my experience, a clear-cut
indicator of deception. Not conclusive, of course, but an indicator.
Q. So, his s[t]or[]y changing and not keeping his statements straight
throughout the interview?
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A. Yes, sir.
Detective Frisina also testified that State’s Exhibit 2 is the actual taser they
found at the house, and that it is depicted in State’s Exhibit 39, a photo taken of
evidence gathered at the house during their investigation. He demonstrated to the
jury how the taser worked and that when charged it still functioned.
Detective Frisina obtained a search warrant to collect a DNA sample from
Longoria and the warrant was admitted into evidence as State’s Exhibit 55. He
collected two swabs from the inside of Longoria’s mouth, placed them into
envelopes, initialed the envelope, and sent it to the lab for analysis. The envelope is
depicted on the photograph admitted into evidence as State’s Exhibit 1. According
to the Detective during his interview, Longoria described Angie as being “special
needs”, and as having “the personality of an eight-year-old.”
5. Yvy Llambes’ Testimony
Llambes, a sexual assault nurse examiner (“SANE”), testified as to her
educational and professional qualifications and certifications. She said the purpose
of a SANE examination is to provide medical treatment for the patient and gather
evidence.
Llambes outlined the procedure for conducting a SANE examination, both
generally and with specific reference to the SANE examination she performed on
Angie shortly following the alleged assault. She confirmed the history of the assault
9
that Angie gave at the time of the examination and noted that Angie seemed
“childlike” in her communication style. Llambes further recalled that Angie “was a
detailed historian[,]” and was tearful during the examination, repeatedly stating “I’m
not going back there. I’m never going back.” Llambes testified that Angie told her
during the exam that Longoria came into the house, took scissors away from her,
forcefully took off her bra and shirt, took away the “taser” that she had tased him
with, and tased her with it while she was “fighting with him.” She bit him. Angie
then told Llambes that Longoria wrestled her onto her bed in her bedroom and
forcefully took off her pants and panties. She said Longoria then sucked on her
breast, forced her legs apart, and licked on her vagina. She told Llambes that
Longoria then forced his finger into her vagina, forced his penis into her mouth, and
repeatedly asked her if she “liked it.” Angie reported to Llambes that she told him
“no” and asked why he was doing this to her to which he responded that he was
“getting revenge” on her Mom. Longoria then showed her “porn” on his phone and
told her he was going to do to her what those people were doing on the phone.
Longoria then left the house to re-charge his phone and that is when Angie ran to a
nearby gas station and called “911.”
Angie declined an internal vaginal examination. Llambes used cotton swabs
to attempt to collect evidence. Llambes swabbed Angie’s mouth, hands, vaginal
area, anal area, pubic hair and breasts and sealed those swabs. Llambes identified
10
photos showing redness on Angie’s knees. Llambes also reported that Angie had a
bruise on her back.
6. Jessica Lake’s Testimony
At the time of this case, Lake was a forensic scientist employed at the Texas
Department of Public Safety Crime Laboratory in Houston. She described her
educational and professional qualifications, as well as the accreditation of the
laboratory.
She outlined the process of DNA testing, noting that samples are identified
with a unique case number and a bar code to track the movement of evidence within
the laboratory and maintain the integrity of its chain of custody. Lake authenticated
the chain of custody of the relevant items of evidence and stated that she prepared
samples to test for the presence of blood, semen, and other potential sources of DNA.
She stated that the laboratory findings were negative for semen but did reveal blood
on Angie’s underwear.
7. Andrew McWhorter’s Testimony
McWhorter, like Lake, was a forensic scientist at the Texas Department of
Public Safety Crime Laboratory in Houston. He described his training, and explained
his duties at the laboratory, indicating that his responsibilities included performing
tests to reveal DNA profiles, writing reports of his findings, and testifying in court
as to those findings. He echoed Lake’s description of the evidence identification
11
method, and described the steps involved in DNA analysis. He explained how to
calculate the probability that a DNA sample belongs to a particular person. He
opined that the DNA found on Angie’s left breast was almost certainly Appellant’s,
as were DNA samples obtained from Angie’s underpants. The witness was unable
to state that Appellant’s DNA came from skin cells or saliva, but did voice his
opinion that it did not come from Appellant’s semen.
8. Jessica Ehmann’s Testimony
Ehman, a supervisor in the DNA section of the Houston Crime Laboratory,
described her credentials in the field of forensic science. In the instant case, Ehman
performed a technical review of McWhorter’s work to assure its accuracy. Upon
completion of her review, Ehman was satisfied with McWhorter’s report
9. Angie’s Testimony
Angie described her favorite pastimes, stating that she enjoys drawing,
reading, writing stories, playing video games, and attending horse shows with her
horse. She described a normal day as beginning with making coffee for herself and
her mother, and including hobbies and household chores. She identified the
photographs of the house where the assault occurred, recalling that Appellant
formerly lived in the garage apartment.
The witness described the day of the assault, and the assault itself, in great
detail. She began the day by cleaning the kitchen while her mother was out.
12
Appellant came to the house and told her that her mother had requested him to
babysit; Angie considered that statement odd, because Appellant had not previously
babysat Angie, and she knew that her mother would not have made such a request.
Appellant then approached Angie, giving her a feeling of dread; she attempted to
defend herself with a pair of scissors, but Appellant took them from her and then
“ripped” off her shirt and her brassiere. Angie did her best to defend herself, but
Appellant forced her into her bedroom and onto her bed, where he then removed the
rest of her clothing, held her down, performed oral sex on her, penetrated her vagina
with his fingers, and forced his penis into her mouth. Angie made it clear that she
did not consent to this encounter with Appellant, and that she did everything in her
power to repel the assault by using her stun gun and by striking him with a brass
candlestick. She also asked him why he was doing this to her, and he replied that it
was his revenge on her mother.
Following the assault, Appellant and Angie got dressed, and Appellant then
showed Angie pornographic images on his cell phone, and told her that he was going
to do the same things to her that were shown in the video. When Appellant left the
house to charge his phone battery, Angie took immediate advantage of his absence
by running barefoot through a thunderstorm, to a nearby convenience store, where
the clerk allowed her to call 911 for assistance.
13
The content of Angie’s 911 call and her statement to Llambes were both
admitted into evidence without objection. The 911 call was played for the jury. In
the call, and in her statement, Angie gives details about the assault and the
descriptions are consistent with her trial testimony regarding the assault.
10. Rachel’s Testimony
Rachel testified that she met Longoria in approximately 1990, and that he is
the father of her other adult daughter, Betsy. During the time frame relevant to this
case, Longoria was living in a separate building on her property, where he had
everything he needed; it was not necessary for him to enter the house she and Angie
shared. Despite their long-standing relationship, Rachel recently had decided that
the living situation could not continue indefinitely, and she had notified Appellant
he needed to leave and she gave him a written notice.
In describing Angie, Rachel noted that although her daughter made excellent
grades in school, she always attended special education classes. Not only was Angie
a sickly baby, diagnosed with failure to thrive, she later was diagnosed as
schizophrenic, and when she was a child she reported seeing or hearing “fairies.”
Due to Angie’s mental health issues, Rachel pursued a guardianship proceeding, and
Rachel remains Angie’s legal guardian; Angie is unable to drive, vote, handle her
own money, or make significant medical decisions. Rachel clarified, however, that
Angie is able to tell someone if she needs an aspirin. Rachel described Angie as
14
childlike and recalled that Angie still liked to read children’s books and romance
novels.
On the day of the alleged assault, Rachel returned home after running errands
to find a pair of scissors on the floor, Angie’s brassiere on the floor, and Angie’s
glasses broken. In Rachel’s words, “[t]he house was totally wrecked.” Sensing that
Angie might be in danger, Rachel called the police. She next saw Angie in the
hospital; Angie was disheveled, bruised, and was refusing to return to their home.
II. Sole Issue on Appeal
In his sole issue on appeal, the appellant argues that “the trial court erred by
failing to provide a jury charge related to the issue of consent as it relates to
Aggravated Sexual Assault of a Disabled Person,” and that this failure egregiously
harmed the appellant.
III. Standard of Review
The trial court is required to provide the jury with a written charge setting
forth the law applicable to the case prior to the presentation of closing statements.
Tex. Code Crim. Proc. Ann. art. 36.14. If there is error in the court’s charge “the
judgment shall not be reversed unless the error appearing from the record was
calculated to injure the rights of defendant, or unless it appears from the record that
the defendant has not had a fair and impartial trial.” Id. art. 36.19. Almanza v. State
15
sets out the standard of review for jury charge error. 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985).
We review a claim of charge error through a two-step process: first,
determining whether error exists; and second, conducting a harm analysis if error is
found to exist. Rogers v. State, No. PD-0242-19, 2022 Tex. Crim. App. LEXIS 742,
at *7 (Tex. Crim. App. Oct. 26, 2022) (citing Phillips v. State, 463 S.W.3d 59, 64-
65 (Tex. Crim. App. 2015)); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.
2005)). Initially we must determine whether error occurred. See Ngo, 175 S.W.3d at
743. We defer to the trial court’s ruling on questions of fact and questions that turn
on credibility and demeanor, and application-of-law-to-fact questions that do not
turn on credibility and demeanor are reviewed under a de novo standard.
See Sandoval, 2022 Tex. Crim. App. LEXIS 844, at *22. If we find error, then we
analyze the error for harm. See id. When, as here, the defendant did not object at trial
and failed to preserve error for appeal, we will not reverse for jury-
charge error unless the record shows “egregious harm” to the defendant. See Ngo,
175 S.W.3d at 743-44; Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App.
2004); Almanza, 686 S.W.2d at 171. In determining whether charge error is
egregious we consider: (1) the entirety of the jury charge; (2) the state of the
evidence; (3) counsel’s arguments; and (4) any other relevant information contained
16
in the entire trial record. See Marshall, 479 S.W.3d at 843; Taylor, 332 S.W.3d at
489; Almanza, 686 S.W.2d at 171.
IV. Analysis
The purpose of the jury charge is to instruct the jurors on all of the law that
applies to the case. Tex. Code Crim. Proc. Ann. art. 36.14; See Vasquez v. State, 389
S.W.3d 361, 366 (Tex. Crim. App. 2012). The trial court included in its charge the
following definition of “without the consent of the other person” as applied to the
offense of sexual assault:
A sexual assault . . . is without the consent of the other person if [] the
actor compels the other person to submit or participate by the use of
physical force, violence, or coercion.
A sexual assault . . . is without the consent of the other person if [] the
actor compels the other person to submit or participate by threatening
to use force or violence against the other person or to cause harm to the
other person, and the other person believes that the actor has the present
ability to execute the threat.
A sexual assault . . . is without the consent of the other person if [] the
actor knows that as a result of mental disease or defect the other person
is at the time of the sexual assault incapable either of appraising the
nature of the act or resisting it.
Tex. Penal Code Ann. § 22.011(b)(1), (2), (4).
The above definitions were contained within the abstract portion of the jury
charge, yet Appellant complains that “the abstract portion of the jury charge did not
specifically enumerate” the circumstances “in which a sexual assault is committed
17
without the consent of another person.” We construe Appellant’s argument to be a
complaint about the trial court’s failure to include all eleven of the enumerated
circumstances contained within the applicable statute. That said, Appellant does not
point to any evidence in the record that pertains to the omitted examples contained
in the statue, nor does he explain how he was harmed by the failure of the trial court
to include the omitted ways the state could have sought to prove a lack of consent
which dealt with circumstances not applicable to this case. See Vasquez, 389 S.W.3d
at 366.
The Appellant’s complaint on appeal is that the trial court erred by failing to
include in its charge all eleven of the statutory definitions of lack of consent. We
cannot say the trial court erred in its submission. The trial record lacked evidence to
support the omitted statutory definitions of lack of consent. 4Among other things,
the omitted definitions address such things as a use of surreptitious drugs, the actor’s
status as a public servant, or a member of the clergy. See Tex. Penal Code Ann. §
22.011(b)(6), (8), (10). These circumstances were not raised by the evidence, and
Appellant has not argued otherwise; the trial court therefore correctly excluded these
definitions from its charge.
4
At the time of the offense alleged, the Texas Penal Code contained eleven
definitions of lack of consent; our legislature has since added three more definitions,
for a current total of fourteen. See Tex. Penal Code Ann. 22.011(b).
18
For the reasons set forth above, we do not find that the jury charge contained
error. That said, even if the jury charge were erroneous, Appellant did not object to
any error at the trial court; he therefore will not be entitled to a reversal under the
rationale of Almanza unless egregious harm is shown. See Almanza, 686 S.W.2d at
171-72. Egregious harm is defined as harm that deprives the accused of a fair and
impartial trial by affecting the very basis of the case, depriving the defendant of a
valuable right, or vitally affecting a defensive theory. See Id.; Hogan v. State, 440
S.W.3d 211, 217-18 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). We analyze
allegedly egregious harm by evaluating the following:
1. The charge, itself;
2. The state of the evidence, including contested issues and the weight of the
probative evidence;
3. Arguments of counsel; and
4. Any other relevant information revealed by the record of the trial as a
whole.
See Screws v. State, 630 S.W.3d 158, 166 (Tex. App.—Eastland 2020, no pet.)
(citation omitted).
Turning first to the charge itself, the charge included statutory definitions of
applicable terminology (including the definition of a disabled individual) as well as
clear and accurate instructions covering relevant considerations from the
presumption of innocence to the application paragraphs. It was tailored to the
19
specific facts of the case, as required. See Burnett v. State, 541 S.W.3d 77, 84 (Tex.
Crim. App. 2017) (stating that the charge must correspond to the facts of the case).
Next, as to the evidence submitted to the jury, including contested issues and
the weight of the probative evidence, there was overwhelming evidence that
supported Longoria’s conviction of the crime charged. Angie’s testimony, along
with the testimony from her mother, Rachel, established the elements of the alleged
sexual assault, and that Angie was a disabled individual who did not consent to the
sexual contact in question. Not only did Angie testify as to her lack of consent,
stating that Appellant held her down and placed her in fear of her life, but her mother
testified as to Angie’s disability, noting that Angie was unable to manage her own
affairs and remained under a guardianship, thus indicating that Angie could not
consent to sexual activity. In fact, Appellant, himself, recognized Angie’s disability,
noting that she sometimes exhibited the maturity of an eight-year-old child. The jury
could have reasonably concluded that Angie did not consent or that Angie lacked
the capacity to consent to sexual activity. See Hopkins v. State, 615 S.W.3d 530, 543
(Tex. App.—Houston [1st Dist.] 2020, pet ref’d) (holding that a victim’s actual
consent is immaterial if the victim lacks the capacity to consent). Appellant’s
argument that Angie was not disabled because she could complete special education
classes, follow simple directions, make coffee, and decline pain medication does not
mean that Angie consented to the assault, or that she was not disabled. Similarly, it
20
does not mean she could “appraise the nature of the sexual act.” Id. at 539-41; Tex.
Penal Code Ann. § 22.011(b)(4).
As for counsel’s closing arguments about Angie’s credibility, both attorneys
made arguments about the credibility of Angie, and about the other evidence
presented to the jury. The jury was the sole judge of the credibility of the witnesses
and permitted to believe or disbelieve all, none, or some of the testimony presented
to it. See Edward v. State, 635 S.W.3d 649, 655-56 (Tex. Crim. App. 2021).
After analyzing the evidence under the Almanza factors, we conclude that the
case for conviction was not made “clearly and significantly” more persuasive by the
failure to include an instruction or definition with all eleven enumerated sections
described in Tex. Penal Code Ann. 22.011(b). We cannot say that the omitted
subsections went to the very basis of the case, or that it deprived the defendant of a
valuable right, or that it vitally affected a defensive theory. We conclude that
Longoria did not suffer “egregious harm” due to the complained-of omission. See
id.; Graves, 310 S.W.3d at 930. And, we cannot say that the omission in
the charge had a substantial or injurious effect on the jury’s verdict. See Proenza,
541 S.W.3d at 801.
We overrule Appellant's sole issue on appeal, and we affirm the trial court's
judgment.
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AFFIRMED.
________________________________
JAY WRIGHT
Justice
Submitted on September 20, 2022
Opinion Delivered April 26, 2023
Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.
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