                          NUMBER 13-18-00053-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


RODOLFO ALVAREZ,                                                            Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                          MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Hinojosa
         Memorandum Opinion by Chief Justice Contreras

      Appellant Rodolfo Alvarez appeals his conviction for felony murder, a first-degree

felony. See TEX. PENAL CODE ANN. § 19.02(b)(3) (West, Westlaw through 2017 1st C.S.).

By one issue, appellant argues the trial court failed to limit the definitions of culpable
mental states in the jury charge to the conduct elements required by the offense. We

affirm.

                                          I.    BACKGROUND

          Appellant was involved in a high-speed vehicle collision that injured Y.C. and killed

Y.C.’s nine-year-old daughter P.C.1 On January 26, 2017, appellant was indicted for one

count of felony murder.          The indictment included four paragraphs that alleged four

different ways in which appellant had committed the underlying felony offense. Later, the

State amended the indictment and removed the first two paragraphs.                             The State

proceeded to trial on felony murder based on the allegations that appellant caused the

death of P.C. while committing the felony of: (1) intoxication assault of Y.C.; and/or (2)

aggravated assault of Y.C.            See TEX. PENAL CODE ANN. §§ 19.02(b)(3), 22.02(a),

49.07(a)(1) (West, Westlaw through 2017 1st C.S.).

          Y.C. testified that she was driving late at night to Wal-Mart in Victoria, Texas. P.C.,

who was wearing a seat belt, was asleep in the backseat of her vehicle, a 2001 Ford

Expedition. As Y.C. neared Wal-Mart, Y.C. noticed a vehicle turning on the road behind

her. She observed a vehicle’s headlights approaching at a high rate of speed in her

driver’s side mirror. The next thing Y.C. remembered was waking up in the emergency

room. Y.C. suffered a broken arm, eight broken ribs, lacerations to her head, and a

collapsed lung. Y.C. was informed by her husband and hospital staff that P.C. was in a

coma and would likely never regain consciousness. She decided with her husband to

remove P.C. from life support.




          1
          We use initials to refer to the minor decedent and her family to protect their privacy. See TEX. R.
APP. P. 9.8 cmt.; Salazar v. State, 562 S.W.3d 61, 63 n.1 (Tex. App.—Corpus Christi 2018, no pet.).

                                                     2
       Jeorg-Ann Nevins, a friend of Y.C., testified that on the night of the accident she

carried a sleeping P.C. to Y.C.’s vehicle. Nevins explained that she placed P.C. in the

driver’s side back seat and secured her seat belt with the shoulder strap in front of P.C.

       Caesar Villarreal, a corporal with the Texas Department of Public Safety, testified

that he reviewed data downloaded from the airbag control module of appellant’s vehicle.

The data showed that appellant’s vehicle was travelling at eighty-nine miles per hour at

the point of impact, which caused appellant’s vehicle to slow down by 21.97 miles per

hour on impact. Appellant’s vehicle was a Ford F-350 truck weighing 7,000 pounds, and

it collided with Y.C.’s vehicle with an energy of 1.8 million foot-pounds.        Villarreal

explained the data from appellant’s vehicle indicated that nothing was mechanically

wrong with the truck. The data also indicated appellant did not depress the brakes at any

time prior to impact or take any evasive action. Villarreal explained they were unable to

retrieve the data from Y.C.’s vehicle and that, in any event, the recording system in a

vehicle like Y.C.’s 2001 Expedition would not have collected any data from a rear-end

collision.

       Athena Baldwin, a physician’s assistant who treated appellant on the night of the

collision, testified that appellant informed her he drank occasionally and had diabetes.

Baldwin examined appellant about two and one-half hours after the collision.           She

explained appellant smelled of alcohol and seemed intoxicated. Baldwin testified that

there was nothing in the medical records to suggest that appellant was suffering from a

diabetic episode at any time on the evening of the collision, and that appellant told her

that he drank alcohol and drove a vehicle that night. Appellant told Baldwin he had not

lost consciousness.



                                            3
       Matthew Janzow, M.D., treated Y.C. for her injuries. Dr. Janzow testified about

the injuries suffered by Y.C. and stated that Y.C. was at risk of death and permanent

disfigurement had her injuries not been treated. Dr. Janzow explained that he ordered

morphine for Y.C. shortly after her arrival and that it was therefore expected that lab work

performed later at the hospital would show opiates in her system. He explained that Y.C.

took an initial drug screen upon her admission that was negative for all the drugs tested.

During his opening statement, defense counsel had suggested that the opiates in Y.C.’s

system could have contributed to the collision.

       The deputy chief medical examiner of the Travis County Medical Examiner’s office,

Satish Chundru, M.D., also testified. Dr. Chundru explained that P.C. had a dislocated

cervical vertebra, bruise of the spinal cord, a laceration to her liver, and a severe head

injury that included severe hemorrhage and bruising of the brain. Dr. Chundru explained

that “[i]t takes a significant amount of forces to cause bruising on the brain, and [P.C.] had

a significant amount of it.”   Dr. Chundru explained that the injuries sustained by P.C.

were typically fatal and could not be attributed to the way P.C. was removed from the

vehicle by police or during her transportation to the hospital. During trial and his opening

statement, defense counsel had suggested that the act of removing P.C. from the

wrecked vehicle could have caused or contributed to her injuries and death.

       Javed Qureshi, M.D., a radiologist, testified he read the images of the scans

performed on P.C. Dr. Qureshi noted that P.C. had a significant amount of intraventricular

hemorrhage within her head. He explained that the removal of P.C. from the crushed

vehicle and her transportation of fifteen or more feet to an ambulance could not have

caused the brain injuries P.C. suffered.



                                              4
            Officer Jonathan Houser of the Victoria Police Department testified he was

performing a late-night safety check at a bar down the road with three other officers when

the accident occurred. He explained that he and two other officers went to Y.C.’s vehicle

and found P.C. breathing but unconscious. Shortly after checking P.C.’s vitals, the

officers realized P.C. was no longer breathing and had no pulse. Houser testified that

Officer Blair Cerny of the Victoria Police Department cut P.C.’s seatbelt, removed her

from the vehicle, and handed her to Houser. Houser then carried P.C. to an ambulance

that had arrived, which was fifteen to twenty feet away.                       Houser explained that no

backboard was used because none was available, and he explained how fellow officers

Zambrano and Cerny removed P.C. from the vehicle before placing her in Houser’s arms.

Houser testified this was done very gently and that there were no violent movements to

the child’s back or neck.

            Officer John Maresh of the Victoria Police Department ran to appellant’s car.

Officer Maresh testified that appellant was still in the truck and was unaware that a

collision had occurred. After appellant got out of the truck, Maresh had a brief discussion

with appellant during which appellant admitted to drinking alcohol.2 Officer Maresh

moved appellant to a safe area and performed field sobriety tests, which indicated that

appellant was intoxicated.3 Appellant declined Officer Maresh’s request for a voluntary


            2   A video recording of Maresh’s encounter with appellant was entered into evidence and played for
the jury.
            3
           Maresh performed a horizontal gaze nystagmus test, and appellant demonstrated six out of six
possible clues of intoxication. Maresh then had appellant take ten steps heel-to-toe and walk in a straight
line while counting out loud the number of steps in one direction, and then turn around and repeat the task
while walking back to the starting point. Going away from the starting spot, appellant counted thirteen steps
in total but also took some steps that he didn’t count. Walking back towards the start spot, appellant took
nine steps. The walk-and-turn test has eight possible clues of intoxication and only two are needed for a
decision that an individual is intoxicated; Maresh noted in his report that appellant exhibited four of the clues
and stated at trial that, after reviewing the video, he noticed six. Finally, Maresh had appellant perform a

                                                          5
blood specimen.        Officer Maresh obtained a search warrant to secure a sample of

appellant’s blood and then transported appellant to a hospital where he observed the

drawing of the blood. The trial court admitted a laboratory report prepared by the Texas

Department of Public Safety Crime Laboratory which showed that appellant’s blood

alcohol concentration was 0.101 grams of alcohol per 100 milliliters.4

        Austin Carter, an E.M.T. with the City of Victoria Fire Department, approached

appellant while he was being questioned by Officer Maresh.                       Carter explained that

appellant did not want to go to the hospital, did not appear to have any injuries, and was

not exhibiting any symptoms associated with a diabetic episode or with a concussion.

Carter stated that appellant had a very strong smell of alcohol and that appellant told him

he had three or four beers.

        Brandon Allen, an officer with the Victoria Police Department, testified concerning

his investigation of the accident, which included a reconstruction of the collision. Officer

Allen’s testimony was consistent with Villarreal’s, and he testified that the speed limit at

the site of the collision was fifty miles per hour. As a result of the impact, Y.C.’s vehicle

left the roadway before coming to rest in a ditch 441 feet away. Officer Allen stated that

even at such a high rate of speed, appellant should have been able to avoid colliding with

Y.C.’s vehicle. Officer Allen testified that no other vehicles contributed to the collision

between the two cars.




standing test, where appellant performs a one-legged stand. Appellant also failed to successfully complete
this test. Maresh explained it was his opinion, after performing the field sobriety tests, that appellant was
intoxicated.
        4Under the Texas Penal Code, a person is intoxicated if their blood alcohol concentration is more
than .08 grams of alcohol per 100 milliliters of blood. See TEX. PENAL CODE ANN. § 49.01(2)(B) (West,
Westlaw through 2017 1st C.S.).

                                                     6
       At trial, appellant questioned the reliability of the lab results and some of the

evidence, as well as the thoroughness of the police investigation and reconstruction of

the accident. Appellant also questioned whether the manner of P.C.’s removal from the

car contributed to cause her neck injuries and whether Y.C. or other vehicles could have

been a contributing factor to the crash.

       The jury found appellant guilty of felony murder and assessed punishment at life

imprisonment in the Texas Department of Criminal Justice Institutional Division and a

$10,000 fine. This appeal followed.

                                    II.    DISCUSSION

       By his sole issue, appellant argues the trial court failed to limit the definitions of

culpable mental states in the jury charge to the conduct elements required by the offense.

A.     Standard of Review

       “[I]n each felony case . . . tried in a court of record, the judge shall, before the

argument begins, deliver to the jury . . . a written charge distinctly setting forth the law

applicable to the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw

through 2017 1st C.S.).

       Our first duty in analyzing an alleged jury-charge error is to determine whether

error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If we

find error, then we analyze that error for harm. Id. The degree of harm necessary for

reversal depends on whether the appellant preserved the error by objection. Id. “When

the defendant fails to object or states that he has no objection to the charge, we will not

reverse for jury-charge error unless the record shows ‘egregious harm’ to the defendant.”

Id. at 743–44.



                                             7
      Egregious harm is a difficult standard to prove and such a determination must be

made on a case-by-case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App.

2011); see, e.g., Hutch v. State, 922 S.W.2d 166, 172–74 (Tex. 1996) (en banc); Anaya

v. State, 381 S.W.3d 660, 665–68 (Tex. App.—Amarillo 2012, pet. ref’d); Chaney v. State,

314 S.W.3d 561, 568–73 (Tex. App.—Amarillo 2010, pet. ref’d). Egregious harm exists

when the error was calculated to injure the rights of the defendant or deprived the

defendant of a fair and impartial trial. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim.

App. 2009); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc)

(op. on reh’g); see TEX. CODE CRIM. PROC. ANN. art. 36.19 (West, Westlaw through 2017

1st C.S.). An error results in egregious harm if it affects the very basis of the case,

deprives the defendant of a valuable right, vitally affects the defensive theory, or makes

a case for conviction clearly and significantly more persuasive. Taylor, 332 S.W.3d at

490; Ngo, 175 S.W.3d at 750. To determine whether there was egregious harm, we

review “the entire jury charge, the state of the evidence, including the contested issues

and weight of the probative evidence, the arguments of counsel, and any other relevant

information revealed by the record of the trial as a whole.” Warner v. State, 245 S.W.3d

458, 461 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171.

B.    Felony Murder

      Appellant was charged under the felony murder statute, which provides that an

individual commits the offense of felony murder when he or she:

      commits or attempts to commit a felony, other than manslaughter, and in
      the course of the commission or attempt . . . he commits . . . an act clearly
      dangerous to human life that causes the death of an individual.

TEX. PENAL CODE ANN. § 19.02(b)(3); Miles v. State, 259 S.W.3d 240, 246 (Tex. App.—

Texarkana 2008, pet. ref’d).      In other words, felony murder is, essentially, “an
                                            8
unintentional murder committed in the course of committing a felony.” Rodriguez v. State,

454 S.W.3d 503, 507 (Tex. Crim. App. 2014) (op. on reh’g). In Lomax v. State, the Texas

Court of Criminal Appeals explained that, because the very essence of felony murder is

that an individual unintentionally murders when he causes another person’s death during

the commission of some type of felony, there is no culpable mental state attached to

felony murder under penal code subsection 19.02(b)(3). 233 S.W.3d 302, 305 (Tex. Crim.

App. 2007); Lopez v. State, No. 04-16-00774-CR, __ S.W.3d __, __, 2018 WL 3129467,

at *11 (Tex. App.—San Antonio June 27, 2018, pet. ref’d). Thus, the State must prove

the elements of the underlying felony, including the culpable mental state for that felony.

Lomax, 233 S.W.3d at 306–07; Lopez, __ S.W.3d at __, 2018 WL 3129467 at *11; Munoz

v. State, 533 S.W.3d 448, 453 (Tex. App.—San Antonio 2017, pet. ref’d).

C.     Conduct Elements of Culpable Mental States

       An offense’s required culpable mental state may apply to one or more of three

conduct elements: (1) the nature of the conduct, (2) the result of the conduct, and (3) the

circumstances surrounding the conduct. Rodriguez v. State, 24 S.W.3d 499, 502 (Tex.

App.—Corpus Christi 2000, pet. ref’d); see TEX. PENAL CODE ANN. § 6.03 (West, Westlaw

through 2017 1st C.S.). An offense may apply a culpable mental state to any number of

these conduct elements to form a criminalized behavior. Rodriguez, 24 S.W.3d at 502;

McQueen, 781 S.W.2d at 603. A trial court errs when it fails to limit the definitions of the

culpable mental states to the manner in which they related to the conduct elements

required in a particular offense. Rodriguez, 24 S.W.3d at 502; Fraser v. State, 523

S.W.3d 320, 341 (Tex. App.—Amarillo 2017, pet. ref’d) (“Because the applicable mental

state of a result-oriented offense relates to the ‘result of the conduct’ rather than the



                                             9
‘nature of the conduct,’ a charge containing the full statutory definition of the applicable

mens rea is erroneous.”); see Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994)

(en banc).

       With a result-oriented offense, the State must prove more than just that the

appellant engaged in conduct with the requisite criminal intent; the State must also prove

that the appellant caused the result with the requisite criminal intent. Delgado v. State,

944 S.W.2d 497, 498 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d); see Cook, 884

S.W.2d at 490 (“Engaging in conduct is not an element in a ‘result of conduct’ offense

and is not relevant unless the voluntariness of the act is an issue.”); Alvarado, 704 S.W.2d

at 39 (noting that, for a result of conduct offense, “[w]hat matters is that the conduct

(whatever it may be) is done with the required culpability to effect the result the Legislature

has specified”); Chaney v. State, 314 S.W.3d 561, 567 (Tex. App.—Amarillo 2010, pet.

ref’d) (“The court’s charge for a result oriented offense such as murder should not allow

a jury to convict a person based solely on a finding that the accused intentionally or

knowingly engaged in conduct which happened to cause death”).

D.     Analysis

       Here, the State alleged in its indictment that appellant was guilty of felony murder

because he caused the death of P.C. while committing one or more of the following

felonies: (1) intoxication assault of Y.C. and/or (2) aggravated assault of Y.C. causing

serious bodily injury. See TEX. PENAL CODE ANN. §§ 19.02(b)(3), 22.02, 49.07(a)(1). The

jury charge instructed the jury that it could convict appellant of felony murder if it found

beyond a reasonable doubt that appellant committed: (1) intoxication assault of Y.C.;

and/or (2) aggravated assault of Y.C. with a deadly weapon; and/or (3) aggravated



                                              10
assault of Y.C. causing serious bodily injury.              See id. §§ 19.02(b)(3), 22.02(a),

49.07(a)(1).

       Appellant argues that the definitions of the culpable mental states included in the

jury charge (intentionally, knowingly, and recklessly) were not limited to apply to only the

result of his conduct, but instead also included that they applied to the nature of his

conduct and surrounding circumstances. In the abstract part of the jury charge, the

culpable mental states were defined as follows:

              A person acts intentionally, or with intent, with respect to the nature
       of his conduct or a result of his conduct when it is his conscious objective
       or desire to engage in the conduct or cause the result.

              A person acts knowingly, or with knowledge, with respect to the
       nature of his conduct or to circumstances surrounding his conduct when he
       is aware of the nature of his conduct or that the circumstances exist. A
       person acts knowingly, or with knowledge, with respect to a result of his
       conduct when he is aware that his conduct is reasonably certain to cause
       the result.

               A person acts recklessly, or is reckless, with respect to
       circumstances surrounding his conduct or the result of his conduct when he
       is aware of but consciously disregards a substantial and unjustifiable risk
       that the circumstances exist or the result will occur. The risk must be of
       such a nature and degree that its disregard constitutes a gross deviation
       from the standard of care that an ordinary person would exercise under all
       the circumstances as viewed from the actor’s standpoint.

(Emphasis added).5

       Intoxication assault does not require a culpable mental state. Shelby v. State, 48

S.W.3d 431, 440 (Tex. Crim. App. 2014); see TEX. PENAL CODE ANN. § 49.07(a)(1)

(requiring only proof of intoxication); see also id. § 49.11 (West, Westlaw through 2017

1st C.S.) (providing that proof of culpable mental state is not required for conviction of



       5These are the full definitions of the culpable mental states as they appear in the Texas Penal
Code. See TEX. PENAL CODE ANN. § 6.03(a)–(c) (West, Westlaw through 2017 1st C.S.).


                                                 11
offenses under Chapter 49).6 This is because “intoxication can be viewed as an imputed

form of recklessness.” Shelby, 48 S.W.3d at 440; Stanley v. State, 470 S.W.3d 664, 670

(Tex. App.—Dallas 2015, no pet.). Thus, the culpable mental state definitions in the jury

charge that appellant complains of do not apply to the alleged underlying felony of

intoxication assault.7

        Aggravated assault as pleaded here, however, is a result-oriented offense.

Stanley, 470 S.W.3d at 669; Sneed v. State, 803 S.W.2d 833, 836 (Tex. App.—Dallas

1991, pet. ref’d); see Garfias v. State, 424 S.W.3d 54, 60–61 (Tex. Crim. App. 2014); see

also TEX. PENAL CODE ANN. §§ 22.01, 22.02 (West, Westlaw through 2017 1st C.S.);

Shelby, 448 S.W.3d at 438 (“The gravamen of aggravated assault . . . is either causing

bodily injury or threatening bodily injury, depending on which theory has been pleaded in

the charging instrument”). Yet, the definitions of the culpable mental states were not

properly limited to only the result of the conduct and, thus, the jury charge was erroneous.

See Cook, 884 S.W.2d 490; Rodriguez, 24 S.W.3d at 502; Delgado, 944 S.W.2d at 498.

        At trial, appellant did not object to the definitions submitted in the jury charge.

Accordingly, we proceed to review the entire jury charge, the state of the evidence, the

arguments of counsel, and any other relevant information revealed by the record of trial


         6 “All of the offenses set forth in Chapter 49 [of the Texas Penal Code], Intoxication and Alcoholic

Beverages Offenses, require a showing that the defendant was intoxicated in public or was intoxicated or
consumed or possessed alcohol while operating some type of motor vehicle or equipment implicating public
safety.” Burke v. State, 28 S.W.3d 545, 549 (Tex. Crim. App. 2000) (citing TEX. PENAL CODE ANN. §§ 49.02
(public intoxication), 49.03 (consumption or possession of alcoholic beverage in motor vehicle), 49.04
(driving while intoxicated), 49.05 (flying while intoxicated), 49.06 (boating while intoxicated), 49.065
(assembling or operating amusement ride while intoxicated), 49.07 (intoxication assault), 49.08 (intoxication
manslaughter) (West, Westlaw through 2017 1st C.S.)) (emphasis in original). “All of the offenses under
Chapter 49 are strict liability offenses.” Id. (citing TEX. PENAL CODE ANN. § 49.11 (West, Westlaw through
2017 1st C.S.)).
        7The abstract part of the jury charged provided that “intoxicated” means “either (1) not having the
normal use of mental or physical faculties by reason of the introduction of alcohol into the body; or (2)
having an alcohol concentration of 0.08 or more.” See TEX. PENAL CODE ANN. § 49.01(2).

                                                    12
as a whole to determine whether appellant suffered egregious harm. Ngo, 175 S.W.3d

at 743; Almanza, 686 S.W.2d at 171.

        1. Jury Charge

        Here, the application paragraph in the jury charge stated that, in order to convict

appellant of felony murder, the jury needed to find beyond a reasonable doubt that

appellant:

        as alleged in the indictment, did then and there;
               1. commit the felony offense of:
                      a. Intoxication Assault of [Y.C.]; and/or
                      b. Aggravated Assault of [Y.C.] with a deadly weapon; and/or
                      c. Aggravated Assault of [Y.C.] causing serious bodily injury.

(Emphasis added). For the underlying felony alleged under (c), the application paragraph

correctly pointed the jury’s focus to the result caused by appellant’s conduct by the use

of the word “causing.” 8 See Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App. 1995)

(en banc); Ash v. State, 930 S.W.2d 192, 195 (Tex. App.—Dallas 1996, no pet.); see,

e.g., Peterson v. State, 836 S.W.2d 760, 765–66 (Tex. App.—El Paso 1992, pet. ref’d)

(concluding that no harm was shown from inclusion of both conduct-oriented and result-

oriented definitions of “knowingly” because application instruction properly required the

jury to find that defendant knowingly caused bodily injury).                    “Where the application

paragraph correctly instructs the jury, an error in the abstract instruction is not egregious.”

Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (en banc); see Plata v. State,

926 S.W.2d 300, 302–03 (Tex. Crim. App. 1996), overruled in part on other grounds by

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (en banc); Patrick, 906 S.W.2d at


        8 The jury charge provided that a person commits aggravated assault “if the person commits

‘Assault’ and the person: (1) causes serious bodily injury to another; or (2) uses or exhibits a deadly weapon
during the commission of the ‘Assault.’” The jury charge provided that a person commits assault “if the
person intentionally, knowingly, or recklessly causes bodily injury to another.”

                                                     13
491–93; see also Peterson, 836 S.W.2d at 765–66; but see Chaney v. State, 314 S.W.3d

561, 568–72 (Tex. App.—Amarillo 2010, pet. ref’d) (finding charge error to be egregious

and harmful when the application paragraph correctly limited the jury’s consideration to

the result of appellant’s conduct because the “vast majority [of the evidence that appellant

contested] dealt with appellant’s culpable mental state”). Thus, there was no egregious

harm if the jury based its verdict on (c). See Medina, 7 S.W.3d at 640; Plata, 926 S.W.2d

at 302–03 (noting that the inclusion of a merely superfluous abstraction never produces

reversible error in the court’s charge because it has no effect on the jury’s ability to fairly

and accurately implement the commands of the application paragraph).

       Regarding the alleged underlying felony of intoxication assault under (a), as

previously noted, no culpable mental state is required. Thus, appellant’s argument does

not apply because he only complains of the definitions of the mental states applicable to

aggravated assault (intentionally, knowingly, and recklessly).

       The only alleged underlying felony that was submitted in the application paragraph

in a manner that did not limit the jury’s consideration to the proper conduct element was

aggravated assault with a deadly weapon. See Cook, 884 S.W.2d 490; Rodriguez, 24

S.W.3d at 502; Delgado, 944 S.W.2d at 498. Nevertheless, the trial court’s instructions

regarding intoxication assault and aggravated assault causing bodily injury did limit the

jury’s consideration to the proper conduct element. There were, therefore, at least two

theories of the offense upon which appellant’s conviction was not affected by the charge

error. See Medina, 7 S.W.3d at 640; Nava v. State, 379 S.W.3d 396, 419–20 (Tex. App.—

Houston [14th Dist.] 2012), aff’d, 415 S.W.3d 289 (Tex. Crim. App. 2013); see also Cantu

v. State, No. 03-01-00231-CR, 2002 WL 1289882, at *9 (Tex. App.—Austin June 13,



                                              14
2002, pet. ref’d) (mem. op., not designated for publication) (concluding that “the record

included substantial evidence for the jury to have concluded that appellant intentionally

or knowingly, as defined under the result-oriented concept, caused the death of the

victim”).   As discussed below, there was overwhelming evidence presented that

supported a finding that appellant was guilty under either of those theories of the offense.

       2. State of the Evidence

       The second factor we analyze is the evidence admitted at trial, including the

contested issues and weight of the probative evidence. See Vega v. State, 394 S.W.3d

514, 521 (Tex. Crim. App. 2013). Here, there was testimony from Maresh that appellant

failed field sobriety tests and seemed intoxicated, and the video of the field sobriety tests

was admitted into evidence. Appellant can be heard saying on the video that he had

consumed alcohol before driving that night and probably had too much to drink, and

Maresh testified that appellant smelled of alcohol. On the video, a second officer can be

heard explaining to appellant that the officers believed appellant was intoxicated or had

been drinking and that he operated a motor vehicle, and appellant replied “yes” to both.

Appellant did not dispute Maresh’s testimony that he failed the field sobriety tests.

Appellant can be seen swaying in the video, and it is clear that he was unable to complete

the tests administered by Maresh.       Baldwin and Carter also testified that appellant

smelled strongly of alcohol when they interacted with him on the evening of the crash.

Baldwin testified appellant admitted to drinking alcohol and appeared intoxicated.

Furthermore, a lab report was admitted into evidence showing that two hours after the

collision appellant had a blood alcohol content of 0.101, which is above the legal limit and

indicates he was intoxicated at the time of the collision. See TEX. PENAL CODE ANN.



                                             15
§ 49.01(2)(B) (West, Westlaw through 2017 1st C.S.). Thus, the probative evidence that

appellant was intoxicated was substantial.

       There was also substantial evidence that indicated Y.C. suffered serious bodily

injury as a result appellant’s conduct. See id. § 22.02 (West, Westlaw through 2017 1st

C.S.). Serious bodily injury means “bodily injury that creates a substantial risk of death

or that causes death, serious permanent disfigurement, or protracted loss or impairment

of the function of any bodily member or organ.” Id. §1.07(a)(46) (West, Westlaw through

2017 1st C.S.). Here, it was undisputed that appellant was the driver of the vehicle that

collided with Y.C.’s car, and there was evidence obtained from the black box from

appellant’s car that indicated he was traveling at a high rate of speed and took no evasive

action before crashing into Y.C.’s vehicle. Testimony from the officers responding to the

scene and from the officers who reconstructed the accident supported these facts. Both

Y.C. and Dr. Janzow testified as to the extent of the severe injuries Y.C. suffered as a

result of the crash. Dr. Janzow testified Y.C. was at risk of permanent disfigurement and

death and Y.C. testified she had suffered prolonged loss of function in her right arm as a

result of the crash. Thus, the probative evidence in support of a conclusion that appellant

committed intoxication assault and aggravated assault causing serious bodily injury is

overwhelming. Additionally, there was no evidence that would have led the jury to find

that appellant had not caused the injuries to Y.C., cf. Rodriguez, 24 S.W.3d at 503, and

appellant never argued that his acts were involuntary or that he was not acting

intentionally, knowingly, or recklessly when he caused serious bodily injury to Y.C. This

indicates that appellant did not suffer egregious harm from the error in the abstract part

of the jury charge. See Medina, 7 S.W.3d at 640; Herrera v. State, 526 S.W.3d 800, 807



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(Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (concluding that evidence of physical

trauma to victim’s neck belied appellant’s assertion of egregious harm from charge error

because the evidence left little risk that a reasonable jury could have concluded that

appellant was choking victim but was not aware that his conduct was reasonably certain

to cause serious bodily injury); Nava, 379 S.W.3d at 419–20; Render v. State, 316 S.W.3d

846, 853 (Tex. App.—Dallas 2010, pet. ref’d).

       3. Arguments of Counsel

       The State’s opening and closing arguments were inconsistent regarding where the

focus of the jury should be as to the conduct element of the culpable mental states. Parts

of the State’s opening argument and closing argument focused on the nature of the

conduct appellant engaged in and parts focused on the result of the conduct, and the

same can be said of defense counsel’s closing argument. However, during the entirety

of the trial proceedings, the State emphasized the nature of appellant’s conduct as

opposed to the result of his conduct. For example, the State asked all of the officers who

testified whether appellant’s acts of driving intoxicated, failing to yield right-of way, failing

to avoid a collision, and speeding were reckless.

       However, as previously noted, appellant never disputed that he was acting

intentionally, knowingly, or recklessly. Instead, appellant’s defensive theories involved

questioning the thoroughness of the police investigation, the reliability of the lab results,

the credibility of the witnesses, whether Y.C. or other motorists were partially at fault for

the collision, and whether the responding officers could have been responsible for or

contributed to the injuries suffered by P.C. when they removed her from the vehicle.

       4. Summary



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       After reviewing the jury charge, the state of the evidence, and the arguments of

counsel, we conclude that appellant did not suffer “egregious” harm from the erroneous

culpable mental state definitions included in the jury charge. As to two of the three

underlying felonies alleged as the means of committing the offense of felony murder, the

application paragraph limited the jury’s consideration to the conduct elements applicable

to the offense, and the evidence presented in favor of these two underlying felonies was

overwhelming. See Medina, 7 S.W.3d at 640; Nava, 379 S.W.3d at 419–20; see also

Cantu, 2002 WL 1289882, at *9. In light of the entire jury charge and the state of the

evidence, the inaccurate statements made by the State during trial regarding the

applicable conduct elements did not cause appellant egregious harm.

       We conclude that the erroneous definition of the culpable mental states submitted

in the abstract portion of the jury charge did not affect the basis of the case, deprive

appellant of a valuable right, or vitally affect a defensive theory. See Ngo, 175 S.W.3d at

750.

       We overrule appellant’s sole issue.

                                     III.   CONCLUSION

       We affirm the trial court’s judgment.

                                                              DORI CONTRERAS
                                                              Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
25th day of April, 2019.




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