                            NUMBER 13-09-00619-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG


ALFREDO ELIAS GOMEZ,                                                         Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


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


                        MEMORANDUM OPINION
               Before Justices Yañez, Garza, and Benavides
               Memorandum Opinion by Justice Benavides

      Appellant, Alfredo Elias Gomez, was indicted on a charge of capital murder, and the

jury found him guilty of the lesser-included offense of murder. See TEX . PENAL CODE ANN .

§ 19.02(b) (Vernon Supp. 2010). The jury assessed punishment at life imprisonment in the

Institutional Division of the Texas Department of Criminal Justice. Id. § 12.32 (Vernon
Supp. 2010). By four issues, Alfredo argues on appeal that the trial court erred by: (1)

including a charge to the jury on criminal conspiracy because it was not charged in the

indictment and is not a lesser-included offense of capital murder; (2) failing to provide an

answer blank for the charge of criminal conspiracy if it was to be included in the jury

charge; (3) failing to provide an instruction on the range of punishment for conspiracy and

a blank in the punishment charge for the jury to consider that range of punishment; and (4)

charging the jury on aggravated robbery, which is not included in the indictment and is not

a lesser-included offense of capital murder. We affirm.

                                      I. BACKGROUND

       The testimony in this case indicated that the appellant, Alfredo, along with several

friends and family members, entered the home of Miguel Cahue under false pretenses in

order to rob him. Two of Alfredo’s associates, Marvin Gomez and Jose Martinez, agreed

to reduced sentences in exchange for their testimony. Their testimony and the other

evidence at trial indicated that Alfredo rang the doorbell and asked to use the bathroom.

After being let in, another of Alfredo’s group rang the doorbell and threatened Cahue with

a BB gun. Several people in Alfredo’s group then entered the house to take valuables,

while one person, Michael Anthony Mancha, sat on top of Cahue and covered his face with

a sweater. Alfredo attempted to duct-tape Cahue’s legs. Alfredo’s own testimony indicated

that when Cahue refused to cooperate, Alfredo began to “hit his ankles” and that he “hit

and kicked” Cahue while Mancha hit Cahue in the head numerous times—possibly with a

weapon. The others scoured the house and were later found to have in their possession

a portable DVD player, jewelry, and a camera that belonged to Cahue. Cahue was

bleeding throughout the living room, and after the robbery was complete, several of the

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group picked him up and dragged him to the bathroom. Cahue died of his injuries and was

discovered in his bathroom the following day by police officers who were called when

Cahue failed to show up to a doctor’s appointment or return phone calls from his friends

and family. There was some disagreement among those testifying as to who hit Cahue,

who restrained him, who stayed in the car, and who moved him to the bathroom. Alfredo

was ultimately found to be in possession of a majority of the stolen items, the BB gun, and

a shirt with Cahue’s blood on it.

       The jury charge included instructions on capital murder, murder, and aggravated

robbery. Each of the instructions included the option to find Alfredo guilty of the offense

by reason that Alfredo “encouraged, directed, aided, or attempted to aid” his associates

in that crime. Alfredo was found guilty of murder, and the jury assessed punishment at life

imprisonment. No relevant objections were made to the jury charge before it was

presented to the jury.

                                    II. STANDARD OF REVIEW

       “Our first duty in analyzing a jury-charge issue is to decide whether error exists.

Then, if we find error, we analyze that error for harm.” Ngo v. State, 175 S.W.3d 738, 743

(Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App.

2003)). The degree of harm required to reverse the trial court’s judgment depends on

whether or not the appellant objected to the charge before it was given to the jury. Id.

Under Almanza v. State, if the defendant has properly objected to the charge, we need

only find “some harm” to reverse the trial court’s judgment. Ngo, 175 S.W.3d at 743-44

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

When the defendant fails to object, however, or states that he has no objection to the

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charge, “we will not reverse for jury-charge error unless the record shows ‘egregious harm’

to the defendant.” Id.

                                        III. ANALYSIS

       By his first issue, Alfredo contends that conspiracy is not a lesser-included offense

of capital murder because it includes additional elements not needed to sustain a charge

of capital murder—namely, an agreement to engage in criminal conduct between two or

more people and an overt act pursuant to that agreement.        Alfredo claims that because

it was not a lesser-included offense, and because it was not included in the indictment,

conspiracy should not have been included in the possible methods of the offense as

instructed. We disagree with the premises of Alfredo’s argument.

       Alfredo is correct that criminal conspiracy is not a lesser-included offense of capital

murder. See Woodard v. State, No. PD-0130-10, 2010 Tex. Crim. App. LEXIS 1238, at

*1 (Tex. Crim. App. Oct. 6, 2010); see also Hall v. State, 225 S.W.3d 534, 536 (Tex. Crim.

App. 2007) (outlining the two-step approach to determine if an offense is a lesser-included

offense of another offense). Alfredo is also correct that it would have been error for the

trial court to instruct the jury on this offense. See Woodard, 2010 Tex. Crim. App. LEXIS

1238, at *1 (finding that an instruction for an unindicted offense of conspiracy constituted

error by the trial court). However, the jury was not instructed on a charge of criminal

conspiracy. In his brief, Alfredo confuses an instruction on criminal conspiracy with the

instruction actually presented to the jury—criminal responsibility for the anticipated result

of a conspiracy to commit a felony as one possible means by which the jury could have




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found the defendant guilty of murder, commonly known as the law of parties.1

        It is permissible for each juror to find a defendant guilty of the same crime based on

different theories of the means by which the crime was committed—the law of parties being

only one that was presented to the jury. See Pizzo v. State, 235 S.W.3d 711, 714 (Tex.

Crim. App. 2008) (“Jury unanimity is required on the essential elements of the offense,” but

is “generally not required on the alternative modes or means of commission.”); Huffman

v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008) (holding that different legal theories

of criminal liability involving the same victim are alternative methods of committing the

same offense, and not different offenses). The law of parties, as it was charged in this

case, does not constitute a separate offense. See Holford v. State, 177 S.W.3d 454, 462-

63 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d) (“The paragraphs instructing on

conspiracy and law of parties include a transferred intent as a potential means of

committing the offense, but the transferred intent ultimately relates to the same actus


        1
            The “law of parties” is described in Texas Penal Code, section 7.02. That section provides:

        If, in the attem pt to carry out a conspiracy to com m it one felony, another felony is com m itted
        by one of the conspirators, all conspirators are guilty of the felony actually com m itted, though
        having no intent to com m it it, if the offense was com m itted in furtherance of the unlawful
        purpose and was one that should have been anticipated as a result of the carrying out of the
        conspiracy.

T EX . P EN AL C OD E A N N . § 7.02(b) (Vernon 2003). The statute on crim inal conspiracy found in Texas Penal
Code section 15.02 provides:

        A person com m its crim inal conspiracy if, with intent that a felony be com m itted:

                  (1)     he agrees with one or m ore persons that they or one or m ore of them
                          engage in conduct that would constitute the offense; and

                  (2)     he or one or m ore of them perform s an overt act in pursuance of the
                          agreem ent.

Id. § 15.02 (Vernon Supp. 2009).



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reus.”).

           Unlike the independent charge of criminal conspiracy, the law of parties is not

required to be included in the indictment, and may be included in a jury instruction if the

evidence supports such an instruction as a possible means by which the crime was

committed.      Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002) (“[I]t is

well-settled that the law of parties need not be pled in the indictment.”); see also Moreno

v. State, No. 04-03-00405, 2005 Tex. App. LEXIS 6840, at *1-2 (Tex. App.–San Antonio

Aug. 24, 2005, no pet.) (mem. op., not designated for publication) (noting that the trial court

could charge the jury on the law of parties even if the theory of liability was not alleged in

the indictment).

       The law of parties was raised by the evidence in this case, particularly with Alfredo’s

admissions that he: (1) helped restrain Mancha; (2) attempted to tape Cahue’s legs; and

(3) hit and kicked Cahue when he resisted. Therefore, the law of parties was a proper

means by which Alfredo could be found guilty of murder. Even though it would have been

error to instruct the jury on the non-indicted offense of conspiracy, no such instruction

appeared in this case. Accordingly, we overrule Alfredo’s first issue.

       By his second and third issues, Alfredo argues that if conspiracy was to be included,

it should have been given with a separate instruction, a separate answer blank for the jury

to find conspiracy, and a separate instruction on the range of punishment for an offense

of conspiracy to commit capital murder or murder. Alfredo argues that a conspiracy finding

would have allowed a second-degree felony finding, allowing sentencing from two to twenty

years rather than the possibility of life imprisonment.        See TEX . PENAL CODE ANN .




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§ 15.02(d) (Vernon Supp. 2010) (punishment ranges).

       Alfredo would only be entitled to an instruction on criminal conspiracy if he could

show that it was a lesser-included offense of the indicted offense and if the lesser-included

offense was supported by the evidence. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim.

App. 1985) (describing the two-part test and noting that “[m]erely because a lesser offense

is included within the proof of a greater offense, however, does not always warrant a jury

charge on the lesser offense.”). As we have noted above, criminal conspiracy is not a

lesser-included offense of the capital murder alleged in this case, and it would have been

error to include such an instruction. See Woodard, 2010 Tex. Crim. App. LEXIS 1238, at

*1. Therefore, Alfredo was not entitled to an answer blank for the charge of criminal

conspiracy, an instruction on the range of punishment for conspiracy, or a blank in the

punishment charge for the jury to consider that range of punishment. Accordingly, we

overrule Alfredo’s second and third issues.

       By his fourth issue, Alfredo argues that the trial court erred by charging the jury on

aggravated robbery—which was not included in the indictment and is not a lesser-included

offense of capital murder. Therefore, he claims he was deprived of fair notice necessary

to mount a defense. The State concedes that aggravated robbery is not a lesser-included

offense of the capital murder alleged in the indictment in this case but, nevertheless,

argues that Alfredo has not demonstrated “egregious harm.” We agree with the State.

       Alfredo did not object to the jury charge on this ground, and therefore, Alfredo must

show “egregious harm” in order to have the trial court’s final judgment reversed. Trejo v.

State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009); Ngo v. State, 175 S.W.3d 738, 743




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(Tex. Crim. App. 2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g). Alfredo was not convicted of aggravated robbery, and he does not explain

the counter-intuitive proposition that the inclusion of a lesser-included offense of which he

was not convicted would cause him to be more likely to be convicted of the more serious

offense. Additionally, Alfredo’s counsel was clearly complacent in the jury charge as it was

given to the jury because he commented several times that the jury should find Alfredo

guilty of the robbery, but not of the murder—apparently using the additional instruction to

facilitate his trial strategy. In one instance, he said to the jury,

       I could stand here and be ridiculous and tell you [to] find him not guilty of
       everything. You know what, that would be ridiculous. That really would.
       You know why? Because he got up there and he said “I went and I went to
       rob the man.” He told you what he went to do. I think you should find him
       guilty, but you should find him guilty of what he did do, not of something that
       he did not do.

       Regardless of these points, however, Texas law generally presumes that the jury

follows the trial court’s instructions in the manner presented. See Thrift v. State, 176

S.W.3d 221, 224 (Tex. Crim. App. 2005) (citing Colburn v. State, 966 S.W.2d 511, 520

(Tex. Crim. App. 1998); Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1988);

Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)). The jury charge

instructed the jury to determine whether the evidence proved beyond a reasonable doubt

that Alfredo was guilty of capital murder before considering whether he was guilty of

murder, and if not, to determine if Alfredo was guilty of murder before considering whether

he was guilty of aggravated robbery. Because the jury found Alfredo guilty of murder, we

presume that it did not consider the offense of aggravated robbery. See id. Thus, the trial

court’s error in including the instruction on aggravated robbery did not harm Alfredo. See


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Almanza, 686 S.W.2d at 171. Therefore, we overrule Alfredo’s fourth issue.

                                   IV. CONCLUSION

       Having overruled all of Alfredo’s issues on appeal, we affirm the trial court’s

judgment.



                                                     __________________________
                                                     GINA M. BENAVIDES,
                                                     Justice


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

Delivered and filed the
30th day of December, 2010.




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