                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00229-CR



          ANTHONY WILSON, JR., Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 102nd District Court
                Bowie County, Texas
            Trial Court No. 16F0386-102




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                MEMORANDUM OPINION
       During the course of a robbery in Bowie County, Anthony Wilson, Jr., shot and killed

Casey Smith. Wilson was indicted on one count of capital murder and, alternatively, one count of

felony murder. A Bowie County jury found Wilson guilty of capital murder, and Wilson was

sentenced to life in prison. On appeal, Wilson alleges that a flaw in the jury charge caused him

egregious harm. Because we find no reversible error in the jury charge, we affirm.

I.     Was the Jury Charge Fundamentally Defective?

       In his sole point of error on appeal, Wilson argues that because the abstract portion of the

jury charge failed to include the definition of murder, the charge was “fundamentally defective

because it directed the jury to find [him] guilty of capital murder based upon an underlying felony

murder, rather than” an intentional murder, as alleged in the indictment.

       We employ a two-step process in our review of alleged jury charge error. See Abdnor v.

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether error

occurred and then evaluate whether sufficient harm resulted from the error to require reversal.”

Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871

S.W.2d at 731–32).

       “[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the

court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). “A trial

court must submit a charge setting forth the ‘law applicable to the case.’” Lee v. State, 415 S.W.3d

915, 917 (Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM. PROC. ANN. art.

36.14 (West 2007)). “The purpose of the jury charge . . . is to inform the jury of the applicable


                                                 2
law and guide them in its application. It is not the function of the charge merely to avoid

misleading or confusing the jury: it is the function of the charge to lead and prevent confusion.”

Id. (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).

       Here, count one of the indictment alleged that Wilson had committed capital murder by

intentionally causing Smith’s death by shooting him with a gun in the course of committing or

attempting to commit robbery.      See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011),

§ 19.03(a)(2) (West Supp. 2017). Count two alleged that Wilson had committed felony murder by

committing an act clearly dangerous to human life, namely shooting Smith with a gun, while in

the course of intentionally or knowingly committing robbery. See TEX. PENAL CODE ANN.

§ 19.02(b)(3) (West 2011). What distinguishes this alleged capital murder from felony murder is

the intent to kill. See Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004) (citing

Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999)). Although felony murder may be

an unintentional murder committed in the course of committing a felony, “capital murder includes

an intentional murder committed in the course of robbery.” Id. (citing Fuentes, 991 S.W.2d at

272); see TEX. PENAL CODE ANN. §§ 19.02(b)(1), (3), 19.03(a)(2).

       Section one of the jury charge defined felony murder, capital murder, and robbery as

follows:

               Our law provides that a person commits the offense of murder if commits
       or attempts to commit a felony, other than manslaughter, and in the course of and
       in furtherance of the commission or attempt, he commits or attempts to commit an
       act clearly dangerous to human life that causes the death of an individual.

               Our law provides that murder, however, is capital murder when the person
       intentionally commits the murder in the course of committing or attempting to
       commit the offense of robbery.
                                                3
              Our law provides that a person commits the offense of robbery if, in the
       course of committing theft and with intent to obtain and maintain control of
       property of another, he intentionally or knowingly causes bodily injury to another.

While the charge includes definitions of felony murder, capital murder, and robbery, it fails to

include the definition of murder under Section 19.02(b)(1), which states, “A person commits

[murder] if he: . . . intentionally or knowingly causes the death of an individual.” TEX. PENAL

CODE ANN. § 19.02(b)(1). The application portion of the charge read as follows:

              Now, if you find from the evidence beyond a reasonable doubt that on or
       about the 29th day of March, 2016, in Bowie County, Texas, the defendant,
       ANTHONY WILSON, JR., did then and there, intentionally cause the death of an
       individual, CASEY SMITH, by shooting CASEY SMITH with a gun, and the
       defendant, ANTHONY WILSON, JR.[,] was then and there in the course of
       committing or attempting to commit the offense of robbery, then you will find the
       defendant guilty of Capital Murder as charged in the indictment.

               Unless you find beyond a reasonable doubt that defendant is guilty of
       Capital Murder, under these instructions, or if you have a reasonable doubt thereof,
       you will acquit him of that offense, and next consider whether he is guilty of the
       lesser offense of Felony Murder.

               Now, if you find from the evidence beyond a reasonable doubt that on or
       about March 29, 2016, the defendant did then and there intentionally or knowingly
       commit a felony offense, to-wit: robbery, and while in the course of and in
       furtherance of the commission of the said offense, did then and there commit or
       attempt to commit an act clearly dangerous to human life, namely, shooting
       CASEY SMITH, which caused the death of CASEY SMITH, then you will find
       the defendant guilty of the lesser offense of Felony Murder.

               Unless you so find from the evidence beyond a reasonable doubt, or if you
       have a reasonable doubt thereof, you will acquit the defendant of the lesser offense
       of Felony Murder and say by your verdict Not Guilty.




                                                4
Wilson argues that by omitting the definition of murder from the charge, the offense definitions

instructed the jury “that they should find [him] guilty of capital murder if they found that [he]

committed felony murder during the course of robbery.” We disagree.

       “The abstract or definitional portions of a jury charge are designed to help the jury

understand the meaning of concepts and terms used in the charge’s application portions.” Martin

v. State, 252 S.W.3d 809, 814 (Tex. App.—Texarkana 2008, pet. dism’d) (citing Caldwell v. State,

971 S.W.2d 663, 667 (Tex. App.—Dallas 1998, pet. ref’d)). A jury is only “authorized to convict

based on the application portion of a charge; an abstract charge or a legal theory does not bring

that theory before the jury unless the theory is applied to the facts.” Id. (citing McFarland v. State,

928 S.W.2d 482, 515 (Tex. Crim. App. 1996) (per curiam), overruled on other grounds by Mosley

v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998); Campbell v. State, 910 S.W.2d 475, 477

(Tex. Crim. App. 1995)).

       “A charge is adequate if it contains an application paragraph that authorizes a conviction

under conditions specified by other paragraphs of the charge to which the application paragraph

necessarily and unambiguously refers.” Id. (citing Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim.

App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.

1997)). “If the application paragraph of a jury charge does not incorporate a theory recited only

in the abstract portion of the charge, a jury cannot convict on that theory.” Id. (citing Hughes v.

State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994); Mallard v. State, 162 S.W.3d 325, 334 (Tex.

App.—Fort Worth 2005, pet. ref’d)). Here, the trial court’s charge defined felony murder, capital

murder and robbery, omitting the definition of murder. Even though the charge did not include

                                                  5
the Section 19.02(b)(1) definition of murder, the application paragraph regarding capital murder

correctly applied the facts to the Section 19.02(b)(1) definition, thereby authorizing the jury to

convict Wilson of capital murder only if it found that during the course of the robbery, Wilson

intentionally caused Smith’s death by shooting him with a gun. We have previously held that even

where the “abstract portion of the charge is questionable,” there is no jury charge error when, as

here, “the application portion essentially tracks the indictment.” Id. at 815.

       Further, because there was no objection to the jury charge below, Wilson was required to

show that any harm suffered by him due to an error in the charge was egregious. In Martin, we

also found that “[e]ven if there were error, there was no harm” because “[a]n erroneous definitional

section of a jury charge can be ‘saved’ by a proper application section.” Id. Here, because the

jury was only authorized to convict Wilson on the application paragraph, Wilson cannot

demonstrate, as he argues, that by omitting the definition of murder from the charge, the charge

essentially instructed the jury “that they should find [him] guilty of capital murder if they found

that [he] committed felony murder during the course of robbery.” “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); see Grady v. State, 614 S.W.2d 830, 831

(Tex. Crim. App. [Panel Op.] 1981). Therefore, we overrule Wilson’s first point of error.




                                                  6
      We affirm the trial court’s judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:      July 2, 2018
Date Decided:        August 1, 2018

Do Not Publish




                                                7
