                                             OPINION
                                        No. 04-10-00120-CR

                                           Joel MAGAÑA,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 49th Judicial District Court, Webb County, Texas
                              Trial Court No. 2009-CRN-000331-D1
                            Honorable Jose A. Lopez, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 10, 2011

REVERSED IN PART & REFORMED, AFFIRMED AS REFORMED

           Appellant Joel Magaña appeals his convictions for the murder of Jose Rodriguez-Vidal,

the robbery of Jose Rodriguez-Vidal, and the robbery of Abiel Rodriguez. Magaña raises three

issues on appeal: (1) the trial court committed harmful error by allowing the jury to convict him

by a less-than-unanimous verdict of the felony murder charge; (2) his conviction for robbery of

Rodriguez-Vidal should be vacated because it violates the Double Jeopardy Clause; and (3) the

trial court committed harmful error by allowing the State to impeach Magaña with juvenile
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adjudications. We reverse Magaña’s conviction for the robbery of Rodriguez-Vidal, and reform

the judgment to delete his conviction and the punishment therefor. We affirm the judgment as

reformed.

                                          BACKGROUND

       Around 3:00 am on January 20, 2009, Emilio Barron arrived at a friend’s house where

Joel Magaña was sleeping. Barron woke him up so that they could “go do some jobs.” Magaña

and Barron left the house and encountered Jose Rodriguez-Vidal and his son, Abiel Rodriguez,

who were walking down the road. Magaña approached Abiel and struck him on the side of his

face. Abiel saw Barron strike his father who then fell to the ground. Abiel ran away toward a

nearby gas station and Magaña chased after him. Magaña caught up with Abiel, and Abiel gave

Magaña all the money in his wallet. Magaña then ran back to where he had last seen Barron, and

Abiel then chased after him. When Abiel caught up with Magaña, he saw Barron and Magaña

kicking his father. Rodriguez-Vidal died from the injuries he incurred as a result of the attack.

       Abiel explained what had happened to the police. Officer De Hoyos patrolled the area

for the men matching Abiel’s description and arrested Magaña and Barron in the neighborhood

about ten minutes later. A grand jury indicted Magaña for the murder of Rodriguez-Vidal,

robbery of Rodriguez-Vidal, and robbery of Abiel; Barron was indicted and tried separately.

After a five-day trial, a jury convicted Magaña of all offenses charged. The jury assessed a

punishment of seventy-five years’ imprisonment and a fine of $10,000.00 for murder, and ten

years’ imprisonment and a $10,000.00 fine for each robbery. Magaña appeals.




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                                        JURY CHARGE

       Magaña’s first issue is that the trial court committed harmful error by failing to include

an application section in Count I for felony-murder for which robbery was the predicate felony.

He contends that as a result, he was convicted of murder by a less-than-unanimous verdict.

A. Applicable Law

       Under the Texas Constitution and Texas Code of Criminal Procedure, a jury’s verdict

must be unanimous in all felony cases. Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App.

2006); accord TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West 2006

& Supp. 2010). A jury must unanimously convict a defendant of a single, specific offense, but it

need not unanimously agree as to any particular theory of how the defendant committed that

offense. See Stuhler v. State, 218 S.W.3d 706, 716–19 (Tex. Crim. App. 2007); Jefferson, 189

S.W.3d at 312; Sanchez v. State, 182 S.W.3d 34, 63 (Tex. App.—San Antonio 2005), aff’d, 209

S.W.3d 117 (Tex. Crim. App. 2006). “In reviewing a disjunctive jury charge, we first determine

whether the separate application paragraphs contain different criminal acts or whether they

merely instruct as to different means of committing a single offense.” Holford v. State, 177

S.W.3d 454, 461 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

       In reviewing a claim of charge error, we first determine whether error exists. Druery v.

State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007); Hutch v. State, 922 S.W.2d 166, 170 (Tex.

Crim. App. 1996). A trial court must submit a jury charge accurately setting forth “the law

applicable to the case.” Huffman v. State, 234 S.W.3d 185, 198 (Tex. App.—San Antonio 2007),

aff’d on other grounds, 267 S.W.3d 902 (Tex. Crim. App. 2008). If we find error, we “must then

determine whether the error caused sufficient harm to require reversal.” Druery, 225 S.W.3d at

504; Hutch, 922 S.W.2d at 170–71. “[T]he degree of harm necessary for reversal depends upon



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whether the error was preserved.” Druery, 225 S.W.3d at 504. If error is preserved, as in this

case, “any harm, regardless of degree, is sufficient to require reversal.” Id.; see also Huffman,

234 S.W.3d at 198.

B. Analysis

       Magaña argues that the jury charge enabled him to be convicted by a less-than-

unanimous verdict because some of the jurors could have convicted him of murder based on the

robbery of Rodriguez-Vidal and others could have convicted him based on the robbery of Abiel.

However, “alternate pleading of the differing methods of committing one offense may be

charged in one indictment.” Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991);

Mata v. State, 75 S.W.3d 499, 501 (Tex. App.—San Antonio 2002), rev’d on other grounds, 122

S.W.3d 813 (Tex. Crim. App. 2003). If an indictment alleges multiple felonies as alternative

bases for felony murder liability, the “felonies are not elements about which a jury must be

unanimous” because “[t]hese felonies constitute the manner or means that make up the ‘felony’

element.” White v. State, 208 S.W.3d 467, 469 (Tex. Crim. App. 2006); see also Cameron v.

State, 988 S.W.2d 835, 849–50 (Tex. App.—San Antonio 1999, pet. ref’d). Moreover, the jury

unanimously convicted Magaña for the robbery of Abiel and for the robbery of Rodriguez-Vidal.

       He further contends that the jury instruction was improper because the robbery of Abiel

could not be the predicate felony for the felony-murder of Rodriguez-Vidal because Abiel was a

different victim. But the Court of Criminal Appeals has explained, “Nothing prohibits a single

capital murder from containing alternate underlying offenses that are the same statutory offense

but with different victims or different underlying methods of commission, so long as the same

victim is alleged with respect to the predicate murder.” Davis v. State, 313 S.W.3d 317, 342

(Tex. Crim. App. 2010).



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         Magaña lastly states that the evidence was insufficient to support that he robbed

Rodriguez-Vidal because there was no evidence that Barron or Magaña had taken anything from

Rodriguez-Vidal. 1 Again, we disagree because “the actual commission of the offense of theft is

not prerequisite to commission of a robbery,” so long as it is “alleged and proven that the alleged

offense was committed ‘in the course of committing a theft’ and ‘with intent to obtain or

maintain control of the property’ involved in the theft.” Earl v. State, 514 S.W.2d 273, 274 (Tex.

Crim. App. 1974). In this case, the jury was so instructed and the State presented evidence of

Barron and Magaña’s intent to take property from Rodriguez-Vidal. Because there is no error in

the jury charge, we overrule Magaña’s first issue. See Druery, 255 S.W.3d at 504; Hutch, 922

S.W.2d at 170–71.

                                              DOUBLE JEOPARDY

         Magaña’s second issue is that the conviction for the robbery of Rodriguez-Vidal

contained in the trial court judgment violates the Double Jeopardy Clause because it is a lesser

included offense of felony murder for which he was also convicted. See Littrell v. State, 271

S.W.3d 273, 275 (Tex. Crim. App. 2008) (citing Brown v. Ohio, 432 U.S. 161, 164 (1977)). The

State agrees. Accordingly, we reverse Magaña’s conviction for the robbery of Rodriguez-Vidal

and reform the judgment to delete that conviction and his sentence therefor.

                                          IMPROPER IMPEACHMENT

         In his third and final issue, Magaña argues that the trial court erred by allowing the State

to question Magaña about his prior juvenile adjudications. During cross-examination, the State

asked Magaña if he had any prior convictions and Magaña responded, “No.” When the State


1
  Although it appears from Magaña’s brief that he complains of the inclusion of multiple theories of liability (e.g.,
principal, party, conspirator), counsel for Magaña at oral argument clarified that his sole position was that it was
improper for the jury charge to not include an application paragraph regarding the proper predicate robbery, and that
it was improper for the jury to convict Magaña of felony murder of Rodriguez-Vidal based on the robbery of Abiel.

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asked Magaña about his prior juvenile adjudications, Magaña objected and the trial court

overruled his objection. The State again asked Magaña about his prior juvenile adjudications

and Magaña admitted to having a history of fighting in school. The State concedes that the trial

court’s ruling was erroneous, but argues that it was harmless error.

A. Standard of Review

       Both parties agree that the trial court’s error is not constitutional. See TEX. R. APP. P.

44.2(b). A non-constitutional error must be disregarded unless it affects the substantial rights of

the accused. See id.; Pollard v. State, 255 S.W.3d 184, 190 (Tex. App.—San Antonio 2008),

aff’d, 277 S.W.3d 25 (Tex. Crim. App. 2009). “To make this determination, [we] must decide

whether the error had a substantial or injurious effect on the jury verdict.” Pollard, 255 S.W.3d

at 190 (quoting Llamas v. State, 12 S.W.3d 469, 471 n.2 (Tex. Crim. App. 2000)). “Substantial

rights are not affected by the erroneous admission of evidence if, after examining the record as a

whole, we have a fair assurance that the error did not influence the jury, or had but a slight

effect.” Id.

       In assessing the degree of the impact of a non-constitutional error on the jury’s verdict,

we consider the entire record, including: (1) all physical evidence and testimony; (2) “the nature

of the evidence supporting the verdict”; and (3) the nature of the error and how the erroneously

admitted evidence “might be considered in connection with other evidence in the case.” Id.; see

also Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002). We may also consider:

(4) the jury instructions; (5) the parties’ respective theories and closing arguments; and (6) voir

dire, if applicable. Motilla, 78 S.W.3d at 355–56. “Overwhelming evidence of guilt is a factor

in any thorough harm analysis.” Pollard, 255 S.W.3d at 190.




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B. Analysis

       Based on the record as a whole, we have fair assurance that the error did not influence the

jury. Initially, the State offered substantial physical and testimonial evidence of Magaña’s guilt.

Abiel testified that Magaña and Barron attacked him and Rodriguez-Vidal. He also stated that

Magaña then chased him to a nearby gas station where he gave all the money in his wallet to

Magaña, who then stopped chasing him. Abiel further testified that he then saw Magaña and

Barron kicking Rodriguez-Vidal.      The State introduced a photo of the shoes Magaña was

wearing that evening and offered testimony that the blood on those shoes matched Rodriguez-

Vidal’s blood. Magaña’s roommate, Raquel Carrasco, testified that earlier that evening, Barron

sold to her several items he had stolen that same night and then woke up Magaña and told him,

“Let’s go do some jobs.” Magaña’s testimony did not contradict much of the State’s evidence,

but he denied kicking or punching Rodriguez-Vidal and demanding any money from Abiel.

       Although the trial court’s error improperly permitted the State to impeach Magaña’s

credibility, the State impeached Magaña several other times.         Magaña admitted on cross-

examination that he had changed his story at trial from what he had told investigators following

his and Barron’s attack on Abiel and Rodriguez-Vidal. Magaña admitted that he had lied to

investigators about where he had been that night, the nature of his friendship with Barron, and

the money he took from Abiel.        After Magaña denied hitting Rodriguez-Vidal, the State

impeached Magaña with a prior inconsistent statement in which Magaña had told investigators

that he had hit Rodriguez-Vidal with both his hands and his feet. Finally, the State did not rely

on Magaña’s school fights in its theory of the case or in closing argument.




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       Although the trial court abused its discretion by permitting the State to ask Magaña about

his prior juvenile adjudications, this error was harmless. As such, we overrule Magaña’s third

and final issue.

                                          CONCLUSION

       Based on the foregoing, we reverse Magaña’s conviction for the robbery of Rodriguez-

Vidal and reform the judgment to delete that conviction and the punishment therefor. We affirm

the trial court’s judgment as reformed.

                                                Rebecca Simmons, Justice

PUBLISH




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