                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                          No. 07-13-00182-CR


                          DANIEL ANACLETO CARDON, APPELLANT

                                                      V.

                                THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 287th District Court
                                       Bailey County, Texas
                Trial Court No. 2729, Honorable Gordon Houston Green, Presiding

                                            June 26, 2014

                                              OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant, Daniel Anacleto Cardon, was convicted of the offense of capital

murder.1 The State did not seek the death penalty and, accordingly, appellant was

sentenced to confinement in the Institutional Division of the Texas Department of

Criminal Justice for life without parole.2 Appellant appeals his conviction, alleging that

the trial court committed error in the charge to the jury in two particulars. First, appellant


       1
           See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013).
       2
           See id. § 12.31(a)(2) (West Supp. 2013).
contends the trial court erred by giving a partial instruction regarding causation. Next,

appellant contends that the trial court erred by commenting on the evidence in the

instruction to the jury regarding mandatory sentencing of anyone convicted of capital

murder where the State did not seek the death penalty. We will affirm.


                               Factual and Procedural Background


        Appellant does not contest the sufficiency of the evidence to support the jury’s

verdict. Therefore, we will address only so much of the record as necessary to properly

address the issues appellant raises.


        Appellant was married to Lucila Cardon, also known as Lucila Perez.                          The

relationship between appellant and Lucila can best be described as volatile. During the

marriage, there were numerous arguments, physical confrontations, and separations.

The conflict between the two ultimately resulted in the confrontation of June 3, 2012.

According to the record, appellant went to the residence of Eric and Lana Perez in

Muleshoe, Texas, where Lucila was residing. Upon confronting Lucila, appellant shot

her in the face with a handgun, and she died as a result of the wound. Appellant fled

the scene and was ultimately arrested the following day. Prior to his arrest, appellant

was involved in a stand-off with law enforcement during which he threatened to kill

himself.    Ultimately, law enforcement convinced him that Lucila was still alive, and

appellant surrendered to the authorities.3              Appellant was subsequently indicted for

capital murder. The State waived the death penalty, and the case was tried as a non-

death-penalty capital murder.

        3
         The officer who told appellant that Lucila was still alive admitted during trial that he knew she
had died but told appellant the lie to get him to surrender.

                                                    2
      During the trial, Eric and Lana Perez testified about the events during the early

morning hours of June 3, 2012. Their testimony reflected that appellant had come to

the home uninvited and, after a confrontation with Eric outside the home, appellant

forced his way inside by kicking open the locked front door. Once inside the living

room, appellant confronted Lucila and shot her with a handgun. Lana witnessed the

shooting and testified that Lucila was backing away from appellant at the moment he

shot her. According to the testimony of Eric and Lana, Lucila was not making any

advance toward appellant or otherwise attempting to grab the pistol from his hand.


      Appellant testified during the trial that he did not intend to shoot Lucila.

According to appellant, Lucila came toward him and grabbed the pistol by the barrel and

the gun went off. The medical examiner found nothing to indicate that the hands of

Lucila suffered from any tattooing or stippling, which would indicate that the gun was

fired while she grasped the barrel. None of the witnesses called by the State were of

the opinion that the shot that killed Lucila was either a contact shot or fired from an

extremely close range.


      After receipt of the evidence had concluded the court prepared its charge to the

jury. The two issues appellant brings forth for appeal are directed at the court’s charge.

In paragraph V of the court’s charge, the jury was charged as follows: “A person is

criminally responsible if the result would not have occurred but for his conduct.” At the

charge conference, appellant objected to paragraph V because the same “seems to

negate the necessary mens rea that’s defined in the statute.”        As a basis for the

objection, trial counsel cited the trial court to the due process requirements of the 6 th



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and 14th Amendments to the United States Constitution and “corresponding

amendments to the Texas Constitution and all other relevant law.”


           Appellant’s second objection to the court’s charge is directed at paragraph XV

of the charge.4 Paragraph XV states the following:


       The offense of capital murder is a capital felony. The state does not seek
       the death penalty in this case. An individual adjudged guilty of a capital
       felony in a case in which the state does not seek the death penalty shall
       be punished by imprisonment in the Texas Department of Criminal Justice
       for life without parole. You are instructed that a defendant sentenced to
       confinement for life without parole is ineligible for release from the Texas
       Department of Criminal Justice on parole.
Appellant objected to paragraph XV because the same was a comment on the

evidence, specifically where it said “an individual adjudged guilty of a capital felony.”

Further, appellant objected that the paragraph was addressing punishment in a charge

directed to the guilt/innocence phase of the trial. As a basis for his objections, appellant

cited the trial court to the due process requirements of the United States Constitution as

embodied in the 6th and 14th Amendments to the same.                    As in the first instance,

appellant also cited the trial court to the “corresponding portions and amendments to the

Texas Constitution and all other relevant law.”


       The jury convicted appellant of capital murder and pursuant to section

12.31(a)(1) of the Texas Penal Code, appellant was sentenced to confinement for life

without parole in the ID-TDCJ. TEX. PENAL CODE ANN. § 12.31(a)(1). Appellant appeals

his conviction, alleging that the trial court committed reversible error in its charge to the

jury. Specifically, as to paragraph V, appellant contends that, by giving the jury the

       4
         We note that at the time appellant voiced his objection to this paragraph he described it as
“paragraph 16;” however, it is clear from reading the record that the objection was directed at the
paragraph numbered XV and will be so treated.

                                                 4
instruction in paragraph V, the trial court misstated the level of intent required to convict

appellant.   As to paragraph XV, appellant contends that such an instruction was a

comment on the weight of the evidence and, accordingly, appellant was harmed. For

the reasons hereinafter stated, we will affirm the judgment of conviction.


                                    Standard of Review


       When presented with a jury charge complaint, we review the charge under

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

Under Almanza, we must first determine whether error exists in the charge and, if we

find error, whether such error caused sufficient harm to compel reversal. See Ngo v

State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005) (en banc). The degree of harm

necessary for reversal depends on whether the error was preserved. Hutch v. State,

922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc).              Error that was properly

preserved by a timely objection will require reversal “as long as the error is not

harmless.” Almanza, 686 S.W.2d at 171. But, when error is not properly preserved, the

error must have resulted in egregious harm to justify reversal. Id. Under either harm

standard, the actual degree of harm must be assessed in light of the entire jury charge,

the state of the evidence, the arguments of counsel, and any other relevant information

revealed by the record as a whole. Id.


                              Causation Instruction in Paragraph V


       Appellant’s first complaint is directed at paragraph V of the court’s charge. In this

paragraph, the trial court gave a partial abstract instruction on the issue of causation as

found in section 6.04 of the Texas Penal Code. See TEX. PENAL CODE ANN. § 6.04


                                             5
(West 2011). A review of the application paragraphs used in the court’s charge reveals

that the partial causation instruction was never mentioned in any application

paragraph.5 Thus, the jury was not authorized to convict on the theory of causation.

See Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994). In a situation

where the trial court gives an abstract charge on a theory of law not raised by the

evidence, without specific application to the facts of the case, the trial court does not err

when it overrules an objection to the abstract charge. Willis v. State, 320 S.W.3d 853,

856 (Tex. App.—Eastland 2010, no pet.) (citing Hughes, 897 S.W.2d at 297). Inasmuch

as the trial court did not err in overruling appellant’s objection, we need go no further in

our analysis of charge error on this issue.


       Appellant contends that the effect of the partial instruction without inclusion in an

application paragraph was to seriously undermine the defense of lack of intent. To

support this proposition appellant cites the Court to no authority, either case law or

statutory. We have found no cases that support appellant’s contention. Rather, as

stated above, the law in Texas is that, the denial of an objection to an improper abstract

proposition of law that is in the instruction portion of the charge but not made a part of

the application paragraph is not error.            Id.   Accordingly, appellant’s first issue is

overruled.


                         Comment on the Evidence in Paragraph XV


       Appellant next contends that the trial court’s inclusion of the mandatory

sentencing requirement of an adult individual convicted of capital murder to life in prison


       5
          Because the trial court gave two lesser-included offense charges, there were a total of three
application paragraphs given within the charge.

                                                  6
without the possibility of parole amounted to a comment on the evidence. To begin our

analysis, we look first to the statutory requirement for a trial court’s charge:


       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 sympathy or excite the passions of the jury.
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The charge must contain an

accurate description of the law. See Ex parte Varelas, 45 S.W.3d 627, 633 (Tex. Crim.

App. 2001) (en banc). But the trial court must not convey any personal opinion in the

jury charge as to the truth or falsity of any evidence. Russell v. State, 749 S.W.2d 77,

78 (Tex. Crim. App. 1988) (en banc).              A charge that “assumes the truth of a

controverted issue” is an improper comment on the weight of the evidence. Whaley v.

State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986); Delapaz v. State, 228 S.W.3d 183,

212 (Tex. App.—Dallas 2007, pet. ref’d).


       Turning first to the issue of whether the charge at issue contained an adequate

description of the law, the answer must be yes. See Varelas, 45 S.W.3d at 633. The

charge given by the trial court tracked the language of section 12.31(b) of the Texas

Penal Code. TEX. PENAL CODE ANN. § 12.31(b). As such, the instruction was a proper

statement of the law. Next, we examine whether the charge conveys the personal

opinion of the trial court as to the truth or falsity of any evidence. See Russell, 749

S.W.2d at 78. Appellant offers no explanation or analysis of how or why the charge

should be construed as reflecting the personal opinion of the trial court as to the truth or

falsity of any evidence. See id. Appellant’s singular point seems to be that the charge,




                                              7
as given, “assumes the truth of a controverted issue:” the guilt of appellant.         For

purposes of our analysis, we will assume arguendo that appellant’s position is correct.


       Assuming that appellant’s position is correct does not end our inquiry. Rather,

we must now evaluate the record to determine if such error has harmed appellant. See

Ngo, 175 S.W.3d at 744. The State agrees that appellant made a timely objection to

the paragraph of the charge at issue. Thus, we review the record to ascertain if the trial

court’s action has harmed appellant, or to put it another way, we will reverse unless we

determine that the error was harmless. See Almanza, 686 S.W.2d at 171.


       Our review of the entire record reveals that the issue of the mandatory

punishment was discussed extensively during voir dire examination of the jury panel.

First, the trial judge advised the jury that, should appellant be convicted of the indicted

offense, the punishment would be life without parole. Following this explanation, both

the State and appellant visited with the jury about the mandatory life without parole

sentence. The issue of punishment was not mentioned again until the charge was read

to the jury. The charge as a whole properly charged the jury with the applicable law

regarding capital murder and the lesser-included offenses of murder and manslaughter.

Further, the review of the record reveals that neither the State nor the appellant ever

argued or alluded to the mandatory sentencing provision contained in paragraph XV

during final arguments. Instead, the argument of the State and appellant centered on

whether the intent element of the indicted offense was proved. As to the evidence

heard by the jury, the issue of appellant’s intent boiled down to the jury’s duty to

determine which of the two conflicting stories to believe.       On the one hand, two

witnesses, Eric and Lana Perez, testified that appellant shot Lucila from a distance of a

                                            8
few feet away in a manner consistent with an intentional act; on the other hand, the jury

also heard the testimony of appellant, who testified Lucila advanced toward him and

grabbed the barrel of the gun, which then discharged. In such a posture, it was the

jury’s province to reconcile the conflicting testimony and determine whom to believe.

See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) (en banc) (per

curiam). After reviewing the entire record, we hold that the instruction given by the trial

court, if error, was improper because it was simply unnecessary and did not provide any

clarification of an element of the offense at issue. See Brown v. State, 122 S.W.3d 794,

802 (Tex. Crim. App. 2003).       This would result in such error being considered a

marginal error, that is to say, falling marginally on the wrong side of the “improper-

judicial-comment” scale. See id. After a complete review, the error of the trial court,

which we have assumed for purpose of this argument, was not calculated to injure the

rights of appellant. See Almanza, 686 S.W.2d at 171. As such, the error was harmless.

Appellant’s issue to the contrary is overruled.


                                        Conclusion


       Having overruled appellant’s two issues, we affirm the judgment of the trial court.




                                                  Mackey K. Hancock
                                                      Justice


Publish.




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