                             NUMBER 13-11-00770-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

VALENTIN MARTINEZ                                                             Appellant,
A/K/A JOSE GUADALUPE
RAMIREZ MARTINEZ,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                    On appeal from the 139th District Court
                          of Hidalgo County, Texas.


                         MEMORANDUM OPINION
                Before Justices Rodriguez, Garza and Perkes
                  Memorandum Opinion by Justice Garza
       Appellant, Valentin Martinez a/k/a Jose Guadalupe Ramirez Martinez, was

convicted of capital murder and sentenced to life imprisonment without parole. See

TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011). On appeal, Martinez contends that

(1) the trial court reversibly erred when it instructed the jury that it could convict if it
found that “an object unknown to the grand jury” was used in the commission of the

offense, and (2) the evidence was legally insufficient to support his conviction. We

affirm.

                                       I. BACKGROUND

          On the morning of November 3, 2010, police officers responded to a call

regarding a possible homicide at a residence on Garcia Street in Pharr, Texas. When

the officers arrived on scene, bystanders directed them to a window on the west side of

the home, through which they could see an elderly male subject lying wounded on the

floor. The front door to the residence was locked, so the officers kicked in the door to

gain access. When they entered, they observed that the elderly male was covered in

blood, motionless, and appeared to have been deceased for some time before they got

there. There were no indications that there had been a previous forced entry or an

altercation inside the house. Investigators identified the victim as Ysrael Cardenas.

          Police recovered clothes, a beer can, and a knife from the residence for forensic

testing. No usable finger prints were obtained from the items. However, there was

apparent blood on the knife, which testing showed to be consistent with Cardenas’s

DNA profile. Moreover, swabs of the mouth of the beer can revealed DNA consistent

with Martinez’s DNA profile. The forensic pathologist who performed the autopsy on

Cardenas testified that Cardenas suffered multiple stab wounds, including defensive

wounds on his arms, and that a stab to the torso was the cause of death. There was no

alcohol in Cardenas’s system at the time of the autopsy.

          At the scene, police were informed that the victim’s black Ford F-150 truck was

missing. Video surveillance footage from the McAllen-Hidalgo-Reynosa International



                                              2
Bridge showed that a Ford truck bearing Cardenas’s license plates passed through the

border toll plaza bound for Mexico at 2:41 a.m. on November 3, 2010.

          Martinez’s sister Concepcion Alvarez and her husband Guadalupe Ramirez were

neighbors of Cardenas. Alvarez testified that she knew Cardenas for several years and

spoke to him on a daily basis. On November 2, 2010, Martinez came over to their

house to help fix a truck belonging to Alvarez and her husband. Alvarez stated that

Cardenas gave Martinez permission to stay at his home that night. When Alvarez went

to sleep that night, the three men—Martinez, Ramirez, and Cardenas—were outside.

When she woke up the following morning, she saw that Cardenas’s truck was not

parked outside his home; she testified that this was rare. 1                  Ramirez testified that

Cardenas would occasionally lend his car to other people but that he never lent out his

truck. Alvarez stated that Cardenas’s other car was parked on the street, whereas it

was usually parked in the driveway. Alvarez further observed that a block of wood

described as a “tree stump” was moved from its usual location in Cardenas’s driveway.

Because of these observations, Alvarez decided to check on Cardenas. When she and

Ramirez saw Cardenas “laying down” inside the home covered in blood, Ramirez called

police.

          Police showed the border crossing surveillance video to Ramirez and Alvarez,

and both identified the driver as Martinez. Police then obtained a warrant to arrest

Martinez. Later that day, Martinez was detained in Mexico and extradited to the United

States.2 At the time he was detained, Martinez was wearing a burnt orange Texas


          1
          Another neighbor, Javier Garcia, also testified that it struck him as odd that Cardenas’s black
truck was not parked in front of his house on the morning of November 3, 2010.
        2
          The black Ford F-150 truck was recovered by police at the time of Martinez’s apprehension.
The lead investigator testified that, between the time the truck was observed crossing the international

                                                   3
Longhorns t-shirt and a pair of gray slacks. The articles of clothing were entered into

evidence at trial as State’s Exhibits 67 and 68, respectively.

        Gilberto Cardenas, the victim’s son, testified that his father “loved” his black truck

and “wouldn’t lend it to anybody.” He stated that, though he no longer lived with his

father, he still had a room at his father’s house where he kept clothes and other

personal items. Gilberto stated that, when he saw a picture of Martinez in the news, he

noticed that “the man was wearing my cap,” which he usually kept in his room at his

father’s house. Gilberto identified State’s Exhibit 67 as his shirt, which he kept at his

father’s house.

        Another son of the victim, Armando Cardenas, testified that he asked to borrow

his father’s truck once, about three or four months prior to the murder, but his father

refused because “the license plate and sticker” had “expired.”

        Sylvia Cardenas, the victim’s daughter, testified that her sister Olivia gave their

father the black Ford truck in 2006 or 2007. According to Sylvia: “He loved his truck

because it was given to him by his daughter. No one was allowed to use it. I mean,

nobody could use it. He himself wouldn’t drive it. So I mean, he loved his truck.” Sylvia

stated that she recognized State’s Exhibit 68 as a pair of pants that belonged to her

father. She stated that she knew they were his pants because she used to wash his

clothes, and because they were custom tailored to fit him.

        The day after he was detained,3 Martinez was advised of his Miranda rights and



bridge and the time it was recovered from Martinez, the license plates, tires, and rims had been changed.
However, police were able to identify it as Cardenas’s truck by the vehicle identification number.
        3
         When Martinez was initially returned to the custody of the Pharr Police Department, he
appeared intoxicated to the point that officers elected not to question him that day.


                                                   4
gave a video-recorded statement in Spanish. The statement was played for the jury

and entered into evidence, as was a transcript of the statement translated into English.

In his statement, according to the translated transcript, Martinez stated that his sister

called him to ask him to fix her broken-down truck on November 2, 2010. He stated that

he knew Cardenas, his sister’s neighbor, because Cardenas previously allowed him to

sleep in his van. After working on his sister’s car, he went to Cardenas’s house to “fix[]

his starter engine” and “have a few beers.” Martinez stated that Cardenas invited him to

stay at his house. Martinez then stated, according to the translated transcript:

        And then someone got there in a white truck, from (unclear) because they
        supposedly play tournaments of—the balls, billiards. . . . And we all
        stayed there, and, and, and my big screw up was that I had been going to
        buy beer . . . [b]ecause I was less drunk than the other man, and well it
        was easy for me, the truth, when I was over there, and (unclear) I went to
        Reynosa (unclear). And that is all that happened.

Martinez claimed that he left the residence in Cardenas’s black truck to buy beer. 4 He

claimed that his sister then called him to tell him that Cardenas had been killed. He

claimed that, instead of returning to Cardenas’s house, he crossed the International

Bridge at around 8:00 or 9:00 p.m.5 He claimed that he borrowed the clothes and the

cap that he was seen wearing in the border surveillance video from his sister. At one

point during his statement, Martinez conceded that “I did steal his truck”; however, he

later stated that he borrowed the truck. He vehemently denied having killed Cardenas.

        4
         Martinez gave a description of the store at which he supposedly bought the beer; he was later
informed by the interviewing officer that the store he described “has been closed for months.”
        5
          After being presented with evidence that he in fact crossed the International Bridge at 2:41 a.m.,
Martinez revised his statement, noting that the man in the white truck arrived “between nine and ten” and
explaining the time discrepancy as follows:

        I was drinking in the truck here in the Valley, and I was going round and round, and I was
        all over the place, because you think I left from there, got to this one, no, I was in the
        truck cruising around, drinking and then I got even more drunk and I took off to Reynosa,
        and then the guys stayed there . . . .

                                                     5
       After the defense closed without presenting evidence, the jury found Martinez

guilty of capital murder and he was sentenced to life imprisonment without parole. This

appeal followed.

                                      II. DISCUSSION

A.     Evidentiary Sufficiency

       1.     Standard of Review and Applicable Law

       In reviewing the sufficiency of evidence supporting a conviction, we consider the

evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier

of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). When faced with

conflicting evidence, we presume that the trier of fact resolved any such conflict in favor

of the prosecution, and we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47

(Tex. Crim. App. 1993).

       Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997). Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State’s theories of liability, and adequately describes



                                            6
the particular offense for which the defendant was tried. Id. Here, a hypothetically

correct jury charge would state that Martinez is guilty of the indicted offense if he

intentionally or knowingly caused Cardenas’s death while in the course of committing

robbery. TEX. PENAL CODE ANN. § 19.02(b)(1) (West Supp. 2011); id. § 19.03(a)(2). A

person commits robbery if, in the course of committing theft and with intent to obtain or

maintain control of the property, he intentionally, knowingly, or recklessly causes bodily

injury to another.    Id. § 29.02(a)(1) (West Supp. 2011).          Theft is the unlawful

appropriation of property with intent to deprive the owner of property; appropriation of

property is unlawful if it is without the owner’s effective consent. Id. § 31.03(a), (b)(1)

(West Supp. 2011).       A person acts “intentionally” with respect to the result of his

conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a)

(West 2011). A person acts “knowingly” with respect to a result of his conduct when he

is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). A

person acts “recklessly” with respect to the result of his conduct when he is aware of but

consciously disregards a substantial and unjustifiable risk that the result will occur. Id. §

6.03(c).

       2.     Analysis

       Martinez argues by his second issue that the evidence was insufficient to prove

that he was Cardenas’s assailant. He cites Johnson v. State in part for the proposition

that “a conviction based on circumstantial evidence cannot be sustained if the

circumstances do not exclude every other reasonable hypothesis except that of the guilt

of the defendant.” 673 S.W.2d 190, 195 (Tex. Crim. App. 1984). However, this rule,

known as the “outstanding reasonable hypothesis” construct, has been definitively



                                             7
abrogated by the Texas Court of Criminal Appeals.          See, e.g., Wise v. State, 364

S.W.3d 900, 904 (Tex. Crim. App. 2012); Wilson v. State, 7 S.W.3d 136, 141 (Tex.

Crim. App. 1999); Brown v. State, 911 S.W.2d 744, 746 (Tex. Crim. App. 1995); Geesa

v. State, 820 S.W.2d 154, 159 n.6 (Tex. Crim. App. 1991). In fact, “[t]he evidence-

sufficiency standard of review is the same for both direct and circumstantial evidence.”

Wise, 364 S.W.3d at 904.        “For the evidence to be sufficient, the State need not

disprove all reasonable alternative hypotheses that are inconsistent with the defendant’s

guilt.” Id.

        Martinez is correct that there is no direct evidence placing him at the scene at the

time of the killing. But “[c]ircumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.”   Hooper, 214 S.W.3d at 13.         Here, the circumstantial evidence

supporting the jury’s finding as to the identity of Cardenas’s assailant included: (1)

testimony that Martinez was with Cardenas at Cardenas’s home the night before the

killing; (2) testimony that Cardenas invited Martinez to stay at his house that evening;

(3) the presence of DNA consistent with Martinez’s profile on a beer can recovered from

Cardenas’s home; (4) surveillance footage showing that, shortly after the killing,

Martinez fled to Mexico in Cardenas’s truck, which testimony showed Cardenas “loved”

and “wouldn’t lend . . . to anybody”; (5) testimony that the license plates, rims and tires

on the truck had been changed after Martinez drove the truck into Mexico and before he

was apprehended; and (6) testimony that Martinez was wearing Cardenas’s custom-

tailored pants and Gilberto’s cap and shirt at the time he was apprehended. The jury

also was able to consider Martinez’s video-recorded police interview—which took place



                                             8
a day after he was apprehended because police determined he was initially too

intoxicated to be interviewed—in which he equivocated as to the time and the reasons

for his crossing the border.

       Martinez notes that the mere possession of a deceased’s car has been held to

be insufficient by itself to support a conviction, see Flores v. State, 551 S.W.2d 364, 369

(Tex. Crim. App. 1977) (“We know of no case . . . where recent unexplained possession

by an accused of a victim’s stolen property is sufficient by itself to sustain a conviction

for murder.”), and that mere presence at the scene or flight from the scene has also

been held to be insufficient by itself to support a conviction. See King v. State, 638

S.W.2d 903, 904 (Tex. Crim. App. 1982) (“Presence in the vicinity of a crime and flight

are not alone sufficient to conclude, beyond a reasonable doubt, that the accused

committed the offense.”); Barnes v. State, 62 S.W.3d 288, 297 (Tex. App.—Austin

2011, pet. ref’d) (“The State must show more than mere presence to establish

participation in a criminal offense”).    However, “an accused’s recent unexplained

possession of a victim’s stolen property may be sufficient to sustain a conviction for

robbery,” and “it is well settled that evidence of a defendant’s possession of the fruits of

a crime are admissible in a murder case.” Flores, 551 S.W.2d at 368–69. Moreover,

the court of criminal appeals has held explicitly that “a factfinder may draw an inference

of guilt from the circumstance of flight.” Clayton v. State, 235 S.W.3d 772, 780 (Tex.

Crim. App. 2007); see Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007)

(“Evidence of flight evinces a consciousness of guilt.”). In any event, the jury was

entitled to consider all of the evidence, which included Martinez’s flight from the scene,




                                             9
his possession of Cardenas’s vehicle, his possession of the Cardenases’ clothes, and

the other circumstantial evidence as set forth above.

       Martinez alleged in his recorded statement that there was another man, who

drove a white truck, that stayed at Cardenas’s house on the evening in question. 6

However, the jury, as fact-finder, was entitled to believe or disbelieve any part of

Martinez’s statement. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App.

2000) (“Defensive evidence which is merely consistent with physical evidence at the

scene of the alleged offense will not render the State’s evidence insufficient since the

credibility determination of such evidence is solely within the jury’s province and the jury

is free to accept or reject the defensive evidence.”). We find that the evidence, taken as

a whole and viewed in the light most favorable to the verdict, allowed a rational trier of

fact to conclude beyond a reasonable doubt that Martinez was the individual that killed

Cardenas. See Hacker, 389 S.W.3d at 865. We overrule his second issue.

       Martinez argues by his third issue that the evidence was insufficient to show that

the killing was carried out in the course of committing robbery. Here, “[s]ince the State

alleged the same assaultive conduct for both the murder and the robbery, it had to

prove that the appellant intentionally [killed] the deceased with the intent to obtain

control of the deceased’s property.” Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim.

App. 1986), superseded on other grounds by Russeau v. State, 785 S.W.2d 387, 390

(Tex. Crim. App. 1990). “A killing and unrelated taking of property do not constitute

capital murder under 19.03(a)(2): the State must prove a nexus between the murder

and the theft, i.e. that the murder occurred in order to facilitate the taking of the

       6
          We note that Martinez’s allegation regarding another man at Cardenas’s house was not
corroborated by any other evidence. Neither Alvarez, Ramirez, or Garcia recalled seeing any vehicles
other than Cardenas’s vehicles at his house on the night of the murder or the following morning.

                                                10
property.” Ibanez, 749 S.W.2d at 807. Martinez claims that “[t]here was no dispute that

[he] and the victim were at the victim’s residence in order to drink alcohol” and “[t]here

was nothing to suggest that [he] had any reason to rob the victim or that he took the

truck for any reason other than to continue partying.” Martinez claims that “[i]f [his]

intention was to murder the victim in order to facilitate a robbery, then logic would

indicate that there would have been missing valuables from the victim’s residence” but

that, in fact, there was no evidence of anything missing from Cardenas’s house except

for the truck.

       We disagree that the evidence was insufficient to show a nexus between

Cardenas’s killing and the theft of his truck. See id. We first note that Martinez is

incorrect in claiming that the undisputed reason for his presence at Cardenas’s house

was “to drink alcohol”; in fact, Martinez himself stated to police that he was there to

“fix[ Cardenas’s] starter engine,” and Cardenas’s autopsy showed no traces of alcohol.

In any event, a jury may generally infer intent from the conduct of the accused. See,

e.g., Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). More specifically,

the Texas Court of Criminal Appeals has repeatedly held that evidence will be sufficient

to show that a murder took place “in the course of” the commission of a robbery “if the

State proves the robbery occurred immediately after the commission of the murder.”

McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989) (citing Huffman v. State,

746 S.W.2d 212 (Tex. Crim. App. 1988); Lincecum v. State, 736 S.W.2d 673 (Tex.

Crim. App. 1987); Demouchette v. State, 731 S.W.2d 75 (Tex. Crim. App. 1986); Fierro

v. State, 706 S.W.2d 310, 313 (Tex. Crim. App. 1986); Riles v. State, 595 S.W.2d 858

(Tex. Crim. App. 1980)). Here, evidence showed that Martinez took Cardenas’s truck—



                                           11
which Cardenas “loved” and “wouldn’t lend . . . to anybody”—at around the same time

as Cardenas was killed. Evidence also showed that, between the time Martinez fled to

Mexico and the time the truck was recovered by police, the truck’s license plates, rims,

and tires had been changed. From this evidence, a rational juror could have reasonably

inferred that Martinez intended to obtain control of Cardenas’s truck at the time he killed

Cardenas. Martinez’s third issue is overruled.

B.     Jury Charge Error

       By his first issue, appellant contends that the trial court committed reversible

error by instructing the jury that it could convict if it found that an “unknown object” was

used in the commission of the offense.

       1.     Standard of Review and Applicable Law

       Following a felony trial, the trial court must deliver to the jury a “written charge

distinctly setting forth the law applicable to the case; not expressing any opinion as to

the weight of the evidence, not summing up the testimony, discussing the facts or using

any argument in his charge calculated to arouse the sympathy or excite the passions of

the jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).

       Defense counsel did not object to the jury charge at trial.        When reviewing

unobjected-to jury charge error, we must first determine whether the charge was

erroneous. See Tolbert v. State, 306 S.W.3d 776, 779 (Tex. Crim. App. 2010). If we

determine that error occurred, we then consider whether the error caused egregious

harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

Egregious harm will be found only if the error deprived the defendant of a fair and




                                            12
impartial trial.   Ex parte Smith, 309 S.W.3d 53, 63 (Tex. Crim. App. 2010) (citing

Almanza, 686 S.W.2d at 171).

       2.      Analysis

       The application paragraph of the jury charge in this case stated as follows:

       Now, if you find from the evidence beyond a reasonable doubt that on or
       about NOVEMBER 3, 2010, in Hidalgo County, Texas, the Defendant,
       VALENTIN MARTINEZ, did then and there intentionally cause the death of
       an individual, namely, YSRAEL CARDENAS, by stabbing him with a knife
       or with an object unknown to the grand jury, and the defendant was then
       and there in the course of committing or attempting to commit the offense
       of robbery of YSRAEL CARDENAS, then you will find the Defendant guilty
       of the offense of CAPITAL MURDER, as charged in the indictment . . . .[7]

(Emphasis added.)         The paragraph tracked the indictment, which contained two

paragraphs charging capital murder—one alleging that Martinez used a knife and one

alleging that Martinez used “an object unknown to the grand jurors . . . .”              Martinez

argues that “[t]he evidence at trial did not support the proposition that the killer used an

object unknown to the grand jury.”

       Martinez relies on Sanchez v. State, in which the Texas Court of Criminal

Appeals held that the trial court erred by instructing the jury that it could convict the

defendant of murder if it found he caused the death of the complainant “by manner and

means to the Grand Jurors unknown” because the “[t]he evidence established that the

cause of the complainant’s death was asphyxia.” 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012) (citing Gray v. State, 152 S.W.3d 125, 127–28 (Tex. Crim. App. 2004)

(noting that jury instructions must “apply th[e] law to the facts” adduced at trial)). The

trial court in Sanchez charged the jury on four different theories, including two which


       7
        The charge also contained application paragraphs for the lesser-included offenses of murder
and robbery. The murder paragraph also instructed the jury that it may convict if Martinez caused
Cardenas’s death “by stabbing him with a knife or with an object unknown to the grand jury . . . .”

                                                13
alleged unknown manner and means, but the court of criminal appeals held that “[t]he

trial court’s instructions should have reduced the four theories to the two theories with

the specified manner and means that were supported by evidence at trial.” Id. at 774.

The Court held that “the two theories with the unknown manner and means were

unnecessary surplusage as they were unessential to the charged offense of murder

because the indictment and jury instructions had also alleged two other alternatives for

that same offense.” Id.

      Here, the “manner” of Cardenas’s death was undisputed—he died of stab

wounds to the torso—and Martinez argues that the “means” of his death was also

conclusively established.    Martinez notes that the autopsy pathologist repeatedly

referred to a “knife” as the instrument she assumed caused Cardenas’s injuries; and he

notes that the only potential murder weapon introduced as evidence was the knife

recovered from Cardenas’s kitchen which had traces of Cardenas’s blood on it. The

State contends that this case is more like Moulton v. State, in which the court of criminal

appeals found that an instruction on unknown manner and means was not erroneous

because, under the evidence adduced at trial, “the crime scene does not point to a

conclusive list of possibilities” and so “there is unlimited information that may be

unknown.”    360 S.W.3d 804, 810 (Tex. Crim. App. 2013).            Therefore, the State

contends, “the indictment correctly alleged an unknown manner and means as well as

all options supported by the evidence.” Id.

      Assuming, but not deciding, that the evidence did not support the challenged

instruction, we nevertheless find that any error would not be reversible because

Martinez has not demonstrated that he suffered egregious harm. In Sanchez, the court



                                              14
of criminal appeals noted that, “[w]hen a jury returns a general guilty verdict on an

indictment charging alternate methods of committing the same offense, the verdict

stands if the evidence is sufficient to support a finding under any of the theories

submitted.”   376 S.W.3d at 775; see Herrera v. State, 367 S.W.3d 762, 776 (Tex.

App.—Houston [14th Dist.] 2012, no pet.) (holding, where defendant was accused of

causing bodily injury to a child, that “the evidence supports a conviction based upon a

finding that appellant committed the offense by shaking, throwing, or dropping” the

victim and that “[t]he jury could have convicted on any one of these theories without

ever reaching the ‘unknown’ language”). The Sanchez Court then found that the error

in the jury charge was harmless, in part because “[a]ll four of the alternatives for

convicting appellant required the jury to be convinced beyond a reasonable doubt that

appellant caused the death of the complainant, and the evidence at trial established

this.” 376 S.W.3d at 775; see id. at 773 (citing Ngo v. State, 175 S.W.3d 738, 746 n. 27

(Tex. Crim. App. 2005)) (“Neither the manner (the actus reus) nor the means (the

‘instrument of death’) need to be agreed upon unanimously by a jury . . . [t]he jury need

only unanimously agree that appellant caused the death of the complainant.”).

Crucially, the Sanchez Court applied the less stringent harm analysis appropriate for

error that has been preserved at trial. See id. at 775 (“Had appellant failed to preserve

the jury-charge error, then we would have reviewed the record for egregious harm.”).

Applying, as we must in this case, the stricter standard prescribed for unpreserved

error, we find that Martinez has not shown egregious harm because, as we have

already held, the evidence was sufficient for the jury to convict on the theory that

Martinez used a knife. See id.; Herrera, 367 S.W.3d at 776.



                                           15
       Martinez’s first issue is overruled.

                                      III. CONCLUSION

       The trial court’s judgment is affirmed.

                                                   DORI CONTRERAS GARZA
                                                   Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of December, 2013.




                                              16
