Xaiver Jamall Booker v. the State of Texas ( 2024 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00091-CR
XAIVER JAMALL BOOKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 29610
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION
As a result of an eight-day crime spree, Xaiver Jamall Booker was convicted by a Lamar
County jury of four counts of aggravated robbery,1 one count of murder,2 and one count of
aggravated assault.3 Based on the jury’s determination that Booker was previously convicted of
a felony and its assessed punishment, the trial court sentenced Booker to ninety-nine years’
imprisonment on each count, with the sentences to run concurrently.
On appeal, Booker asserts that the trial court reversibly erred when it (1) failed to include
accomplice-witness instructions regarding two of the State’s witnesses in its jury charge,
(2) failed to include a jailhouse-witness instruction regarding another witness in its jury charge,
and (3) failed to instruct the jury that it must find that he had specific intent to engage in murder
or aggravated assault; Booker also contends that (4) accumulation of error undermined his right
to due process and tainted the verdicts in the remaining counts. We will affirm the trial court’s
judgment.
I. Background
A. The Bailey Robbery
Booker was convicted of six felony offenses that were alleged in a single indictment.
The first count alleged that Booker committed the aggravated robbery of Travon Bailey and that
Booker used or exhibited a firearm (the Bailey Robbery). Regarding this robbery, Bailey
1
See TEX. PENAL CODE ANN. § 29.03(a)(2).
2
See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (Supp.).
3
See TEX. PENAL CODE ANN. § 22.02(a)(2) (Supp.).
2
testified that, on the afternoon of September 20, 2021, he walked up to a parked car in Paris and
asked Booker for a lighter. While he was lighting his cigarette, Booker took Bailey’s firearm,
which was tucked in his waistband, and pointed it at him. Bailey said that the firearm was a
“Glock 9 483 (sic) camo” and that there was a round in the chamber. He testified that Booker
was in the driver’s seat of the car and that another person in the car, whom he knew as “Red,”4
also pointed a firearm at Bailey. Bailey said that he saw his life flash before him. Booker and
Red also took a bag from him that contained his wallet, iPhones, and a small amount of cash.
Booker told Bailey to leave and threatened to shoot him if he turned around or did anything
crazy. Bailey identified State’s exhibit 23 as the Glock pistol stolen from him. At trial, Brown
testified that he did not know anything about the Bailey Robbery and denied any involvement.
B. The Morrison/Jackson Robbery
The second and third counts in the indictment alleged that Booker committed the
aggravated robbery of Landry Morrison and Zykius Jackson, respectively, and that Booker used
or exhibited a firearm (the Morrison/Jackson Robbery). Morrison testified that, on the afternoon
of September 21, 2021, he was at Finess McCuin’s house with Jackson and that he (Morrison)
had left his AR-15 in his car. About thirty minutes after he arrived, Brown opened the front door
of the house, pointed a gun at them, and demanded Morrison’s car keys. Brown took the keys
off a table and went back outside. When Morrison went to his car, the AR-15 and a pair of
sunglasses were missing. Morrison found his keys in the yard. After that happened, he assumed
McCuin was a part of the robbery because McCuin had been on his phone the whole time, ran
4
“Red” is the nickname of Davarrious Brown.
3
into another room when Brown came through the door, and left the house through a window.
Jackson’s testimony was consistent with Morrison’s.
McCuin refused to testify at trial, but the State played for the jury, without objection, a
recording of his interview with law enforcement. In his interview, McCuin said that, when
Morrison and Jackson came over, he saw the AR-15 in Morrison’s car, so he sent a text message
to everybody and asked that someone come and take the rifle from the car. Booker5 was the first
to answer, and McCuin began exchanging text messages with him. Eventually, Booker
messaged McCuin and said the car door was locked, and McCuin suggested they break the
window. When that failed, McCuin asked Booker if anyone had a “stick” or gun. Booker
responded and said that Brown was with him and that he had one. McCuin then messaged
Brown and said they should come in the house and act like they were robbing them. A short
while later, “Red” opened the door, engaged a bullet, pointed the gun at Morrison and Jackson,
and demanded the keys to the car. McCuin then left through a bedroom window, took the AR-15
from Morrison’s car, and got in a car with Brown and Booker’s girlfriend, who was driving.
A recording of Booker’s interview with law enforcement was also shown to the jury,
without objection. In that interview, Booker did not deny that he and Brown were in the car at
the Morrison/Jackson Robbery, and he identified his girlfriend as the driver of the car. He also
confirmed that he was exchanging text messages with McCuin and confirmed the events that
took place at McCuin’s house, consistent with McCuin’s statement. However, Booker claimed
that he had a change of heart when he got to McCuin’s house.
5
Booker goes by the nickname “Big Daddy.”
4
Brown testified that he did not know anything about the Morrison/Jackson Robbery and
denied any involvement.
Tom Morris testified that he had been in custody with Booker in the Lamar County Jail
and that, while in jail, he was a “writ writer” who helped other inmates understand the law and
filed motions in their cases. Booker reached out to Morris for help with his case. At one point,
Morris received a handwritten document from Booker, which was introduced into evidence. The
document apparently concerned the Morrison/Jackson Robbery and, as read to the jury, stated,
“It was me and my girl was a getaway driver on this robbery charge so why she not charged by
law everybody supposed to get charged.”
C. The Wallace Robbery
The fourth count in the indictment alleged that Booker committed the aggravated robbery
of Jquarius Wallace and that Booker used or exhibited a firearm (the Wallace Robbery). Wallace
testified that, on the evening of September 28, 2021, he pulled up in a car on Provine in Paris
with Kevin Thomas and Keith Mann,6 and that Booker, Brown, and Jatarious Council7 drew
guns on them. Council was at the right front of the car, Brown was at the left rear, and Booker
was at the driver’s door. Booker and Brown pointed their guns at Wallace and told him to get
out of the car. He exited the vehicle and gave them his cash and several bars of Xanax. They
then searched the car and took the hooded sweatshirt and shorts that Wallace was wearing,
6
Mann’s nickname was “Dallas.”
7
Council’s nickname was “JT.”
5
leaving him in only his tanktop and boxer briefs. Afterward, they let Wallace go, and he
returned to his house and put on clothes.
Council, who had pled guilty to the Wallace Robbery and received deferred adjudication
community supervision, testified that he, Booker, and Brown were involved in that robbery.
According to Council, he pulled up in the car with Wallace, and Mann got in the back seat and
handed Wallace a handgun. Booker walked up to Wallace’s window, grabbed something
Wallace was holding, and told him to get out of the car. Council then searched the car and
grabbed the handgun while Booker strip-searched Wallace. Council did not remember seeing
Booker or Brown with a gun but thought that Booker had a gun at his side.
Brown testified that he did not know anything about the Wallace Robbery, denied any
involvement, and denied that he was present at the robbery. However, in a portion of his
recorded interview with law enforcement shown to the jury, Brown said that he and Booker were
present at the Wallace Robbery.
Morris testified that Booker told him that, after he robbed and stripped down Wallace,
Wallace cried, begged, and peed all over himself. He also said that Booker thought that was
funny.
In his interview, Booker initially denied any involvement in the Wallace Robbery. Later
in the interview, Booker admitted that he was at that robbery, denied that he had a firearm, and
maintained that Council and Brown both had firearms.
6
D. The Mann Murder and the Wallace Assault
The fifth count in the indictment alleged that Booker murdered Mann (1) by intentionally
and knowingly causing Mann’s death by shooting him with a firearm, or (2) with intent to cause
serious bodily injury to Mann, Booker “commit[ted] an act clearly dangerous to human life that
caused the death of [Mann] by discharging a firearm at or in the direction of” Mann (the Mann
Murder). The sixth count alleged that Booker committed the aggravated assault of Wallace by
“threaten[ing] [him] with imminent bodily injury by firing a firearm at [him], and used or
exhibited” a firearm during the assault (the Wallace Assault).
Wallace testified that he stayed home for ten or fifteen minutes after he was robbed by
Booker, then went out again. He went to a hangout spot on Hickory Street, and Mann got into
Wallace’s car when he arrived. While they were talking, Wallace observed in his car’s mirror
that Booker and Brown were approaching from behind. Because of the earlier incident with
them, Wallace drove off and then heard gunfire coming from behind him. Two of the shots hit
his car, but he did not look to see who was shooting. When he got to his house, he discovered
that Mann, who was in the backseat, had been shot. Wallace called the paramedics but thought
that Mann was dead because he was not moving.8 An autopsy determined that Mann died from a
7.62 caliber bullet that entered his left mid-back and lodged in the back of his throat.
The evidence showed that four bullets struck the rear of Wallace’s car: one in the upper
right portion of the license plate, one below the license plate, and two in the lower left of the
bumper. A fifth bullet may have creased the top of the car. In addition, six 9-mm casings,
8
After the shooting, Booker fled to Oklahoma City and was apprehended there within ten days after the shooting.
7
several 7.62 casings, and a 40-caliber casing were recovered on the roadway of Hickory Street
and in the adjacent yard. An analysis by a firearms examiner at the Texas Department of Public
Safety determined that a Bersa pistol that had been recovered had fired four of the 9-mm casings
and that the Glock pistol that Booker had stolen from Bailey eight days earlier had fired two of
the 9-mm casings.9 The examiner opined that the 7.62-caliber bullet recovered from Mann’s
body was fired from an SKS or an AR-style rifle.
Leigh Foreman, the lead detective on the case, testified that Brown admitted shooting the
round that killed Mann from an SKS rifle. He also testified that, immediately after the shooting,
Booker fled from Paris and was apprehended in Oklahoma City within a week. Darrien
Richards, an officer with the Oklahoma City Police Department, testified that, in January 2023,
he recovered a Glock 26 pistol in a traffic stop. Upon investigation, he determined that the
Glock pistol had the same serial number as a Glock pistol reported stolen in Paris in 2021. He
identified State’s exhibit 23 as the Glock pistol he recovered in the traffic stop.
At trial, Brown admitted that he shot at Wallace,10 but killed Mann, with an SKS rifle.
He did not know how many rounds he fired. Although he admitted Booker and Council were
with him, he maintained that Booker did not fire any shots. Nevertheless, he acknowledged that
he told the detective in his interview that Booker “could have shot once or twice” but also
maintained that he was not sure if Booker fired a shot. Brown also testified that he had written
9
The Glock stolen from Bailey was recovered in a traffic stop in Oklahoma City in January 2023.
10
Brown had previously been convicted of Mann’s murder and received testimonial immunity.
8
an affidavit while in jail that stated that Booker was not involved in Mann’s murder and that
Brown took full responsibility for the murder.
In his interview with law enforcement, Brown said that everyone brought their own gun
and that he thought Booker fired an automatic handgun more than once. He also said that he
heard Booker fire one shot and that the shooting was over in a matter of seconds.
In McCuin’s interview, he told the detective that, after the Wallace Robbery, Wallace
went to Big Gerald’s, where they roll dice, and that Wallace was mad and told everyone that
they, meaning Booker and Brown, robbed him. Somebody called Booker, then Booker called
McCuin and asked him to “go slide with [him]” on Wallace. McCuin told him he could not
because Wallace raised him. McCuin explained that “go slide” meant to go ride and shoot
somebody.
Regarding the Mann Murder and the Wallace Assault, Morris testified that Booker told
him that two shell casings found at the scene matched his gun and that four shell casings did not.
Booker also told him that he fired a couple of times into Wallace’s car.
II. Standard of Review
Booker’s first three issues assert jury-charge error. “We employ a two-step process in
our review of alleged jury-charge error.” Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.—
Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)).
“Initially, we determine whether error occurred and then evaluate whether sufficient harm
resulted from the error to require reversal.” Id. (quoting Wilson v. State, 391 S.W.3d 131, 138
(Tex. App.—Texarkana 2012, no pet.)).
9
“[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the
court and be governed thereby.” Id. (alteration in original) (quoting TEX. CODE CRIM. PROC.
ANN. art. 36.13). “A trial court must submit a charge setting forth the ‘law applicable to the
case.’” Id. (quoting Lee v. State, 415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref’d)
(quoting TEX. CODE CRIM. PROC. ANN. art. 36.14)). “The purpose of the jury charge . . . is to
inform the jury of the applicable law and guide them in its application. It is not the function of
the charge merely to avoid misleading or confusing the jury: it is the function of the charge to
lead and prevent confusion.” Id. (quoting Lee, 415 S.W.3d at 917).
“The level of harm necessary to require reversal due to jury charge error is dependent
upon whether the appellant properly objected to the error.” Id. at 555 (citing Abdnor, 871
S.W.2d at 732). When, as here, the defendant “did not object to the charge, we will not reverse
[the judgment] unless the record shows the error resulted in egregious harm.” Id. (citing Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005)). “Jury-charge error is egregiously
harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or
vitally affects a defensive theory.” Id. (quoting Stuhler v. State, 218 S.W.3d 706, 719 (Tex.
Crim. App. 2007)). “In making this determination, we review ‘the entire jury charge, the state of
the evidence, the argument of counsel, and any other relevant information in the record as a
whole.’” Id. (quoting Villarreal v. State, 205 S.W.3d 103, 106 (Tex. App.—Texarkana 2006,
pet. dism’d, untimely filed)). “Direct evidence of harm is not required to establish egregious
harm.” Id. (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). That said, “the
record must show that a defendant has suffered actual, rather than merely theoretical, harm from
10
jury instruction error.” Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005) (citing
Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999)).
III. Accomplice-Witness Statements
In his first issue, Booker complains that the trial court reversibly erred when it failed to
include accomplice-witness instructions in its jury charge regarding (1) the statements McCuin
made to law enforcement and (2) Brown’s testimony and the statements he made to law
enforcement. Because an accomplice-witness instruction relating to McCuin’s out-of-court
statements was not required and any error related to Brown’s testimony was harmless, we will
overrule this issue.
A. The Law Regarding Accomplice Witnesses
“A conviction cannot be had upon the testimony of an accomplice unless corroborated by
other evidence tending to connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the commission of the offense.” TEX. CODE
CRIM. PROC. ANN. art. 38.14. This rule shows “a legislative determination that accomplice
testimony implicating another person should be viewed with a measure of caution, because
accomplices often have incentives to lie, such as to avoid punishment or shift blame to another
person.” Zamora v. State, 411 S.W.3d 504, 509–10 (Tex. Crim. App. 2013) (quoting Blake v.
State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)).
“Because the rule requires corroboration of accomplice-witness testimony before a
conviction can stand, the jury must be instructed accordingly.” Id. at 510. “For accomplice
11
witnesses as a matter of law,[11] the trial court affirmatively instructs the jury that the witness is
an accomplice and that his testimony must be corroborated.” Id. (citing Druery v. State, 225
S.W.3d 491, 498–99 (Tex. Crim. App. 2007)). “A witness is an accomplice as a matter of law
when the witness has been charged with the same offense as the defendant or a lesser-included
offense, or ‘when the evidence clearly shows that the witness could have been so charged.’” Id.(quoting Druery, 225 S.W.3d at 498). Further, since the accomplice-witness rule is the law
applicable to the case, an accomplice-witness instruction is required to be given sua sponte if the
evidence shows that a witness is an accomplice. Id. at 513–14.
B. An Instruction Was Not Required Regarding McCuin’s Out-of-Court
Statements
The record shows that, although McCuin was called as a witness by the State and granted
testimonial immunity, he refused to answer any questions. As a result, he did not provide any
testimony against Booker, and Booker does not assert any complaint about McCuin’s in-court
testimony. Rather, he points to McCuin’s out-of-court interview with law enforcement and
complains that the trial court reversibly erred when it failed to give an accomplice-witness
instruction regarding the statements made in that interview.
However, only an accomplice’s in-court testimony is required to be corroborated under
Article 38.14. Bingham v. State, 913 S.W.2d 208, 210 (Tex. Crim. App. 1995). For that reason,
an accomplice witness’s out-of-court statements are not subject to the Article 38.14
corroboration requirement. Id. at 213. Further, because McCuin’s interview with law
11
Booker asserts, and the State does not dispute, that McCuin was an accomplice as a matter of law as to the
Morrison/Jackson Robbery and that Brown was an accomplice as a matter of law as to the Mann Murder and the
Wallace Assault.
12
enforcement was admitted without objection, “the jury was entitled to regard it as independent
evidence of [Booker’s] guilt.” Archie v. State, 340 S.W.3d 734, 737 n.3 (Tex. Crim. App. 2011).
Because the trial court was not required to give an accomplice-witness instruction
regarding McCuin’s interview with law enforcement, we overrule Booker’s first issue, insofar as
it relates to McCuin’s interview.
C. Booker Was Not Egregiously Harmed by the Absence of an Accomplice-
Witness Instruction Relating to Brown’s Testimony
Booker also contends that the trial court erred when it failed to include an accomplice-
witness instruction relating to Brown’s testimony and law enforcement interview. Because
Brown’s out-of-court statements to law enforcement are not subject to the Article 38.14-
corroboration requirement, we overrule Booker’s first issue insofar as it relates to Brown’s law-
enforcement interview. See Bingham, 913 S.W.2d at 213.
At trial, Brown took responsibility for the Mann Murder, downplayed Booker’s
involvement in the Mann Murder and the Wallace Assault, and offered equivocal testimony
regarding whether Booker had a gun or shot at Wallace. Because some of his testimony may
have implicated Booker in those crimes, we assume, without deciding, that the trial court erred
when it failed to include an accomplice-witness instruction regarding Brown and determine
whether Booker was harmed by the error. See TEX. R. APP. P. 44.2(b).
1. Standard of Review
Since Booker did not object to the absence of an accomplice-witness instruction, the trial
court will be reversed “only in the event that the record demonstrates that the error resulted in
egregious harm.” Casanova v. State, 383 S.W.3d 530, 533 (Tex. Crim. App. 2012) (citing
13
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g), superseded on
other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988)).
Under this standard, “non-accomplice evidence can render harmless a failure to submit an
accomplice[-]witness instruction by fulfilling the purpose an accomplice[-]witness instruction is
designed to serve.” Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). However,
egregious harm will be found when “the ‘jurors would have found the corroborating evidence so
unconvincing in fact as to render the State’s overall case for conviction clearly and significantly
less persuasive.’” Casanova, 383 S.W.3d at 533 (quoting Saunders v. State, 817 S.W.2d 688,
692 (Tex. Crim. App. 1991)).
“To evaluate the [strength] of corroborat[ing] evidence, we eliminate the accomplice-
witness testimony[12] from our consideration and examine the non-accomplice evidence ‘to
ascertain if there is evidence which tends to connect the accused with the commission of the
offense.’” Rhymes v. State, 536 S.W.3d 85, 92 (Tex. App.—Texarkana 2017, pet. ref’d) (quoting
Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997)). “The non-accomplice
evidence need not establish guilt beyond a reasonable doubt or directly link the defendant to the
crime.” Id. at 93 (citing Hernandez, 939 S.W.2d at 176).
“[E]vidence that an accused was in the company of the accomplice close to the time of
the offense, coupled with other suspicious circumstances, may tend to connect the accused to the
offense.” Gill v. State, 873 S.W.2d 45, 49 (Tex. Crim. App. 1994) (citing Cockrum v. State, 758
Although Brown’s out-of-court interview with law enforcement is not required to be corroborated and “the jury
12
was entitled to regard it as independent evidence of [Booker’s] guilt,” it may not be used to corroborate Brown’s in-
court testimony under Article 38.14. Archie, 340 S.W.3d at 737 n.3; see Smith v. State, 332 S.W.3d 425, 439 (Tex.
Crim. App. 2011).
14
S.W.2d 577, 581–582 (Tex. Crim. App. 1988)). Although evidence that shows only motive or
opportunity to commit the crime is, by itself, insufficient to corroborate accomplice-witness
testimony, it may “be considered in connection with other evidence tending to connect the
accused with the crime.” Reed v. State, 744 S.W.2d 112, 127 (Tex. Crim. App. 1988) (citing
Paulus v. State, 633 S.W.2d 827, 846 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh’g.).
“Whether error in failing to submit an accomplice-witness instruction will be deemed
harmful is . . . a function of the strength of the corroborating evidence.” Casanova, 383 S.W.3d
at 539. “The strength of that evidence is, in turn, a function of (1) its reliability or believability
and (2) how compellingly it tends to connect the accused to the charged offense.” Id.
2. Analysis
Wallace testified that, earlier on the evening of September 28, Booker and Brown robbed
him at gunpoint and that both Booker and Brown pointed firearms at him. He also testified that,
when he was in his car with Mann on Hickory Street, he saw Booker and Brown approaching the
rear of his car and, because of the robbery earlier that evening, he drove away. While driving
away, he heard gunshots coming from behind the car. The bullet that killed Mann was a 7.62
caliber bullet. Foreman testified that Brown admitted shooting the round that killed Mann from
an SKS rifle. At the scene, in addition to 7.62-caliber casings, six 9-mm shell casings were
recovered, two of which were fired from the Glock pistol that Booker had stolen from Bailey a
week earlier. The evidence also showed that, immediately after the shooting, Booker fled to
Oklahoma City, where he was apprehended within ten days. Bailey’s Glock was recovered in a
traffic stop in Oklahoma City about sixteen months later. Finally, in his interview, McCuin said
15
that, shortly before the shooting, Booker called him and asked him to come with him to shoot
Wallace.
We find that this evidence is reliable, shows that Booker intended to shoot Wallace, and
compellingly tends to connect Booker to the Mann Murder and the Wallace Assault. As a result,
we hold that the trial court’s error, if any, was harmless. We overrule Booker’s first issue,
insofar as it relates to Brown’s testimony.
IV. Jailhouse-Witness Testimony
Booker contends in his second issue that the trial court erred when it failed to include a
jailhouse-witness instruction relating to Morris’s testimony in its jury charge. The State does not
contest that the trial court erred but contends that Booker was not egregiously harmed.13 We
assume, without deciding, that the statements made to Morris were against Booker’s interest and
that the trial court erred when it did not include a jailhouse-witness instruction.
A. The Law Regarding Jailhouse-Witness Testimony
Like an accomplice witness,
[a] defendant may not be convicted of an offense on the testimony of a person to
whom the defendant made a statement against the defendant’s interest during a
time when the person was imprisoned or confined in the same correctional facility
as the defendant unless the testimony is corroborated by other evidence tending to
connect the defendant with the offense committed.
TEX. CODE CRIM. PROC. ANN. art. 38.075(a). “Corroboration is not sufficient . . . if the
corroboration only shows that the offense was committed.” TEX. CODE CRIM. PROC. ANN. art.
38.075(b).
13
Booker did not object to the trial court’s failure to include a jailhouse-witness instruction.
16
“[T]he standard for corroboration of jailhouse[-witness] testimony under Article 38.075
is the same as the standard for corroboration of accomplice-witness testimony under Article.
38.14.” Schnidt v. State, 357 S.W.3d 845, 851 (Tex. App.—Eastland 2012, pet. ref’d). Using
this standard, we “eliminate the [jailhouse-witness] testimony . . . and then examine the
remaining portions of the record to see if there is any evidence that tends to connect the accused
with the commission of the offense.” Id. (citing Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim.
App. 1993)). As with accomplice-witness testimony, “[w]hether error in failing to submit a[]
[jailhouse]-witness instruction will be deemed harmful is . . . a function of the strength of the
corroborating evidence.” Casanova, 383 S.W.3d at 539. “The strength of that evidence is, in
turn, a function of (1) its reliability or believability and (2) how compellingly it tends to connect
the accused to the charged offense.” Id.B. Analysis
Booker asserts that Morris’s testimony regarding Booker’s statements to Morris
implicated him in the Mann Murder and the Wallace Assault and, arguably, in the
Morrison/Jackson Robbery.14 Based on the evidence and our conclusion set forth in our analysis
of Booker’s issue with Brown’s accomplice-witness testimony, we find that the trial court’s error
was harmless, insofar as it relates to the Mann Murder and the Wallace Assault.
Regarding the Morrison/Jackson Robbery, in his interview with law enforcement,
McCuin detailed how he communicated with Booker by text messages and conspired with him to
rob Morrison of his firearm through the use of a deadly weapon by Brown. McCuin also stated
14
Booker does not complain about Morris’s testimony implicating him in the Wallace Robbery.
17
that he removed Morrison’s firearm from Morrison’s car and got into a car driven by Booker’s
girlfriend. In his interview with law enforcement, Booker did not deny that he and Brown were
in the car at McCuin’s house, and Booker identified his girlfriend as the driver of the car. He
also confirmed that he was communicating with McCuin through text messages and, consistent
with McCuin’s statement, confirmed the events that took place at McCuin’s house.
We find that this evidence is reliable, shows that Booker was an active participant in the
planning and execution of the Morrison/Jackson Robbery, and compellingly tends to connect
him to that robbery. For that reason, we find that the trial court’s error, insofar as it relates to the
Morrison/Jackson Robbery, was harmless. We overrule Booker’s second issue.
V. The Jury Charge Adequately Set Forth the Required Intent for Party Liability
In his third issue, Booker contends that the trial court erred when it failed to instruct the
jury that it must find he had a specific intent to commit the murder of Mann and the aggravated
assault of Wallace. Booker argues that, by not including language in the application paragraphs
directly applying the “‘intent to promote or assist’ theory of party liability,”15 the charge allowed
him to be convicted of murder and aggravated assault as a party on the lesser mens rea that he
acted knowingly. Thus, Booker contends that the charge permitted convictions on findings that
he was aware that Mann was reasonably certain to die as a result of Brown’s conduct, rather than
that he intended Mann’s death, and likewise, that he knew that Brown’s conduct would threaten
Wallace, rather than that he intended Brown’s conduct to threaten Wallace. Because we find no
error in the application paragraphs, we will overrule this issue.
15
Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013).
18
Whenever jury-charge error is asserted, “[o]ur first inquiry is whether the jury charge
contained error.” Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza,
686 S.W.2d at 171). We do so by examining the relevant portions of the jury charge. Id. at 440–
443.
A. The Party-Liability Instruction in the Abstract Portion of the Jury Charge
Was Correct
Although the Texas Penal Code contains three theories of party liability,16 the abstract
portion of the jury charge contained only the “intent to promote or assist” theory of party
liability, as follows:
A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or both.
Each party to an offense may be charged with the commission of the
offense.
A person is criminally responsible for an offense committed by the
conduct of another 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.
Mere presence alone will not constitute one a party to an offense.
See TEX. PENAL CODE ANN. § 7.02(a)(2). In Nava, the Texas Court of Criminal Appeals
examined a similar instruction when given in a felony-murder case. Nava, 415 S.W.3d at 298.
The court noted that “the ‘intent to promote or assist’ theory of party liability” given in the
abstract portion of the jury charge “was correct” because “[i]t required the State to show that
appellants intended to promote or assist the commission of felony murder before convicting of
16
See TEX. PENAL CODE ANN. § 7.02(a) (Supp.).
19
felony murder under this theory of party liability.” Id. at 298. It explained that “[t]he words
‘acting with intent to promote or assist the commission of the offense’ clearly mean, at a
minimum, that a defendant must act intentionally with respect to the result elements of a result-
oriented offense.” Id. at 298–99 (quoting Kelly v. State, 669 S.W.2d 720, 725 n.7 (Tex. Crim.
App. 1984)).
Because murder is a result-oriented offense, the court also explained that the “intent to
promote or assist” theory of party liability contained in Section 7.02(a)(2), combined with the
felony-murder statute,17 “requires an intent to promote or assist, not only the commission of the
underlying felony and the unreasonably dangerous act, but also the result of the offense of felony
murder—the death of an individual.” Id. at 299–300. The court concluded, “The abstract
portion of the ‘intent to promote or assist’ instructions in this case did this. It told the jury that,
in order to find appellants guilty, it had to find that they intended the victim’s death.” Id. at 300.
Likewise, in this case, the trial court correctly instructed the jury under the “intent to
promote or assist” theory of party liability. As in Nava, this instruction required that, in order to
convict Booker as a party, the jury must find that he intended to promote or assist the
commission of the offense. As applied to the murder charge, this required that the jury find that
Booker “act[ed] intentionally with respect to the result elements of” murder, i.e., he intended the
victim’s death. Id. at 298.
Aggravated assault by threat, as alleged in the State’s indictment, is a conduct-oriented
offense. Ex parte Rion, 662 S.W.3d 890, 900 n.12 (Tex. Crim. App. 2022) (citing Landrian v.
17
TEX. PENAL CODE ANN. § 19.02(b)(3).
20
State, 268 S.W.3d 532, 540 (Tex. Crim. App. 2008)). Because it is conduct oriented, it
“focus[es] upon the act of making a threat, regardless of any result that threat might cause.” Id.(quoting Landrian, 268 S.W.3d at 536). Applying Nava’s reasoning to a conduct-oriented
offense, “[t]he words ‘acting with intent to promote or assist the commission of the offense’ [in
the instruction] clearly mean, at a minimum, that a defendant must act intentionally with respect
to the [conduct] elements of a [conduct]-oriented offense.” Nava, 415 S.W.3d at 298–99
(quoting Kelly, 669 S.W.2d at 725 n.7). As applied to the aggravated assault charge in this case,
this required the jury to find that Booker acted intentionally with respect to the conduct elements
of aggravated assault, i.e., he intended to threaten Wallace with imminent bodily injury by firing
a firearm at him.18
As a result, the abstract portion of the jury charge required that the jury find that Booker
intended to promote or assist the commission of murder and of aggravated assault before
convicting him of these offenses under the “intent to promote or assist” theory of party liability.
B. The Application Paragraphs Necessarily and Unambiguously Referred to the
Party-Liability Instruction
Nevertheless, Booker contends that the trial court was required to include an instruction
in the application paragraphs of the jury charge that required the jury to find that he acted with
the specific intent to promote or assist the commission of these offenses. Booker points to the
application paragraph in Nava, in which the trial court added the “intent to promote or assist”
18
The abstract portion of the jury charge included an instruction that stated, “A person acts intentionally, or with
intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or
desire to engage in the conduct or cause the result.” Booker asserts no error regarding this instruction.
21
instruction at the end of the application paragraph,19 and contends that there was no such
language in this case. Although the trial court did not include the “intent to promote or assist”
instruction in the application paragraphs, neither was the trial court required to do so.
“The application paragraph is that portion of the jury charge that applies the pertinent
penal law, abstract definitions, and general legal principles to the particular facts and the
indictment allegations.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). For
that reason,
When a definition or instruction on a theory of law—such as the law of parties—
is given in the abstract portion of the charge, the application paragraph must
(1) specify “all of the conditions to be met before a conviction under
such theory is authorized”;
(2) authorize “a conviction under conditions specified by other
paragraphs of the jury charge to which the application paragraph
necessarily and unambiguously refers”; or
(3) “contain[] some logically consistent combination of such
paragraphs.”
Id. at 367 (footnotes omitted) (citations omitted). “Thus, if the application paragraph
‘necessarily and unambiguously’ refers to another paragraph of the jury charge, then a conviction
is authorized, and the trial judge need not sua sponte ‘cut and paste’ that definition into the
19
The application paragraph on the “intent to promote or assist” theory of party liability in Nava provided:
Now, if you find from the evidence beyond a reasonable doubt that . . . [a co-defendant committed
felony murder], and that the defendant . . . with the intent to promote or assist the commission of
the offense, if any, solicited, encouraged, directed, aided or attempted to aid [co-defendant] and/or
[another co-defendant] to commit the offense . . . [then you will find the defendant guilty of
murder].
Nava, 415 S.W.3d at 294 (second alteration in original).
22
application paragraph.” Id. (citing Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996),
overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)). For that
reason, “a general reference to the law of parties in the application paragraph is sufficient and is
not error when the defendant does not object and request a narrowing of the specific statutory
modes of conduct that constitute party liability.” Id. at 368 (footnote omitted) (citation omitted).
In this case, both of the application paragraphs instructed the jury to “bear[] in mind the
foregoing instructions,” then authorized a conviction of Booker “acting alone or as a party.”20
Because the jury was instructed to bear in mind the prior instructions in the charge and was
authorized to convict Booker as a party, the application paragraphs necessarily and
unambiguously referred the jury to the “intent to promote and assist” instructions on party
liability. As a result, the jury was directed to refer to the abstract instructions on the law of
20
The application paragraphs on the murder charge provided:
Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a
reasonable doubt that on or about September 28, 2021, in Lamar County, Texas, the Defendant,
Xaiver Jamall Booker, did then and there, acting alone or as a party, intentionally or knowingly
cause the death of an individual, namely Keith Mann[,] by shooting Keith Mann with a firearm, or
If you find from the evidence beyond a reasonable doubt that on or about September 28,
2021 in Lamar County, Texas, the Defendant, Xaiver Jamall Booker, did then and there, acting
alone or as a party, with intent to cause serious bodily injury to an individual, namely Keith Mann,
hereafter styled the complainant, commit an act clearly dangerous to human life that caused the
death of the complainant by discharging a firearm at or in the direction of Keith Mann, then you
will find the Defendant Guilty of the offense of Murder as charged in Count Five [of] the
Indictment.
The application paragraph on the aggravated assault charge provided:
Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a
reasonable doubt that on or about September 28, 2021, in Lamar County, Texas, the Defendant,
Xaiver Jamall Booker, did then and there, acting alone or as a party, intentionally and knowingly
threaten Jquarius Wallace with imminent bodily injury by firing a firearm at Jquarius Wallace, and
used or exhibited a deadly weapon, namely a firearm, during the commission of the assault., then
you will find the Defendant Guilty of the offense of Aggravated Assault with a Deadly Weapon as
charged in Count Six of the Indictment.
23
parties, which included that he “act[ed] with intent to promote or assist the commission of the
offense,” to determine whether Booker was liable as a party.
For that reason, we find that the jury charge adequately instructed the jury that it was
required to find that Booker intended to promote or assist the commission of murder and of
aggravated assault before convicting him of these offenses as a party. We overrule this issue.
VI. Booker Has Not Shown Cumulative Error
In his final issue, Booker contends that the cumulative effect of his asserted errors
undermined his right to due process and tainted all of his convictions. “It is conceivable that a
number of errors may be found harmful in their cumulative effect.” Chamberlain v. State, 998
S.W.2d 230, 238 (Tex. Crim. App. 1999). We assumed, without deciding, that the trial court
erred in failing to include a jailhouse-witness instruction and that the trial court erred in failing to
give an accomplice-witness instruction regarding Brown’s testimony. In each of those contexts,
other reliable evidence that tended to connect Booker to the offense eviscerated any harm from
the failure to include those instructions. As a result, Booker has not shown cumulative error.
See Feldman v. State, 71 S.W.3d 738, 748, 757 (Tex. Crim. App. 2002), superseded on other
grounds by statute, TEX. CODE CRIM. PROC. ANN. art. 37.071, as recognized in Coleman v. State,
No. AP-75,478, 2009 WL 4696064, at *11 (Tex. Crim. App. Dec. 9, 2009) (per curiam) (not
designated for publication)). We overrule this issue.
24
VII. Disposition.
For the reasons stated, we affirm the trial court’s judgment.
Jeff Rambin
Justice
Date Submitted: January 17, 2024
Date Decided: February 28, 2024
Do Not Publish
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