                                 COURT OF APPEALS
                              EIGHTH DISTRICT OF TEXAS
                                   EL PASO, TEXAS


SONIA BAUTISTA,                                 §
                                                                No. 08-15-00362-CR
                       Appellant,               §
                                                                   Appeal from the
v.                                              §
                                                                 120th District Court
THE STATE OF TEXAS,                             §
                                                              of El Paso County, Texas
                       Appellee.                §
                                                                 (TC#20130D03636)
                                                §

                                        OPINION

     Sonia Bautista appeals her conviction for murder. In ten issues, Appellant contends:

     1. There was legally insufficient evidence to show she intended to cause serious bodily
        injury to the victim and committed an act clearly dangerous to human life;

     2. There was legally insufficient evidence to show she committed felony murder;

     3. The trial court erred in submitting a charge that would allow the jury to convict her of
        murder if it found she assisted in the underlying robbery, causing her egregious harm;

     4. The trial court erred in submitting a charge that did not require the jury to find she
        assisted in performing an act clearly dangerous to human life, causing her egregious
        harm;

     5. The trial court erred in submitting a charge that did not require the jury to find the act
        clearly dangerous to human life actually caused the victim’s death, causing her
        egregious harm;

     6. The trial court erred in submitting a definition on the reasonableness standard of self-
           defense, causing her harm;

       7. The trial court erred in instructing the jury that if it found her actions did not meet the
          reasonableness standard of self-defense it should find against her on the issue of self-
          defense, causing her harm;

       8. The trial court erred in including a charge on self-defense as it relates to deadly force,
          causing her harm;

       9. The trial court erred in overruling her objection to improper jury argument by the State
          that the jury only needed to believe she knew her co-defendant’s intended to rob the
          victim; and

       10. The trial court erred in denying her motion for new trial because her trial counsel was
           constitutionally ineffective for giving her the leeway to select punishment-phase
           witnesses.

For the following reasons, we affirm.

                                        BACKGROUND

       Jose Castanon was murdered on May 17, 2013. Castanon was a marijuana dealer, but just

prior to his death had recently begun selling ecstasy pills. Castanon was described as 5’5”,

skinny, and was known by others as T-Rex—a nickname he had acquired because he was missing

several fingers from his left hand. Castanon had known the Appellant, Sonia Bautista, since

attending middle school with her, but the two were not truly acquainted with one another until

Appellant began buying marijuana from him about a year before his murder. They had stopped

speaking a few months before his death over an incident in which Appellant and her codefendant,

Briana Garay, had arranged for Castanon to sell a large quantity of marijuana to one of Appellant’s

neighbors. Appellant and Garay took Castanon to the neighbor to complete the deal, but instead

of paying for the drugs the neighbor beat Castanon up and stole his marijuana. Castanon accused

Appellant of setting him up and threatened to hurt her and her family if he ever discovered that she

had known he was going to be robbed. Thereafter, the two were on bad terms.

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       On the night of the murder, Appellant, Garay, and the other codefendant, Ricky Macias,

went together to a nightclub. The trio left there about midnight when they went to a house party

of a friend of Appellant’s. They had a few drinks with the other partygoers, but Garay and Macias

kept to themselves. Appellant left them alone because she thought Macias wanted to be “more

than friends” with Garay and wanted some time alone to flirt with her. She continued to bring

them drinks and to introduce them to others, and after about two hours the trio left the party.

       As they drove away, Garay began texting Castanon to see if he would sell her ecstasy.

Castanon replied that he would rather wait until the following day because he did not conduct

business late at night, but Garay insisted that she would not buy them the next day—she wanted

them immediately or not at all. After some back and forth, Castanon agreed to let her come by

his house and buy eight doses of ecstasy, but he insisted she come alone and park in his driveway.

Despite her assurances she would do so, she, Appellant, and Macias proceeded to his home and

parked up the street.

       While this text exchange was going on, Castanon had been at the home of his neighbor,

George Najera. Castanon had moved in across the street from Najera after graduating from high

school in 2011. Najera testified he was awake at that late hour because he was taking care of his

sick mother, who woke up about every two hours to go to the bathroom. He had been sitting out

on his front porch when Castanon saw him from across the street and walked over to chat with

him. Castanon began texting while visiting with Najera and after exchanging a few text messages

informed him someone would be coming by to meet with him. When Appellant, Macias, and

Garay drove by and parked up the street, Castanon said “they’re here,” and returned home. Najera

saw a male and a female exit the car and walk to Castanon’s house. He remained on his porch for


                                                 3
about two minutes until his mother called him in. As he was walking in, he heard what sounded

like a male moan and the sounds of struggling and stomping. The neighborhood dogs began

barking and as he turned to look back he saw another female get out of the parked car and quickly

approach Castanon’s house.

        As Najera was helping his mother in the bedroom he heard sounds of people running on

gravel. He looked out through the window and saw what he perceived to be the shadows of people

quickly leaving Castanon’s house. He assisted his mother to the restroom and then quickly

returned to his front window, where he saw the car the three individuals had come in speed away.

Najera tried calling Castanon on the phone four or five times but never received an answer.

Although he was worried, he decided against calling the police because he knew Castanon was a

drug dealer and he did not want to get him into trouble. He also did not want to go check on

Castanon himself because he did not want to get involved in whatever might have happened. In

the light of the following day, Najera looked outside and saw Castanon’s front door was wide open

and the house was devoid of activity. Shortly after making this observation, two females pulled

up to Castanon’s and went inside. A fire truck and police squad cars arrived moments later.

       One of the women whom Najera had seen walk into the house was Daniela Espino.

Espino had known Castanon for about a year and a half and the two were scheduled to meet up

around 2:00 p.m. that afternoon. She testified she became concerned when Castanon did not

respond to her text messages that morning because they typically exchanged morning texts.

When she subsequently called him and did not get an answer, she decided to go to his home to see

if something had happened to him. When Espino arrived at Castanon’s, she walked in to find

Castanon lying on the floor with a pair of blue jeans twisted around his neck. The house was in


                                               4
disarray; the cabinet doors in the kitchen were hanging open and a cookie jar lay shattered on the

floor. Castanon was motionless and did not respond to her calls, so she dialed 911. The operator

asked her to attempt to perform CPR but when Espino pulled the jeans from Castanon’s neck he

spit up a white liquid and she was too disturbed to make the attempt. The 911 operator instructed

her to wait outside for emergency services and she complied.

       Captain Ruben Candelaria of the El Paso Fire Department responded to the 911 dispatch

and arrived on the scene shortly thereafter. He entered the home and found Castanon lying on the

kitchen floor with bruises all over his face and body as though he had been beaten. The room was

in shambles, and it appeared to Candelaria that a struggle had taken place based on his observation

of the broken ceramic pieces on the floor and open cabinets. Candelaria quickly determined

Castanon was dead and cancelled the ambulance.

       Detective Ray Sanchez was called to investigate Castanon’s death.          He testified he

reviewed text messages on Castanon’s cellphone and determined that his last contact had been

with Macias’s cellphone.     He and another officer went to Macias’s home, who voluntarily

accompanied them to the police station. While speaking with Macias, Sanchez discovered that

Appellant had been present that night and promptly went to her home to speak with her. She also

agreed to go to the police station and gave a video-recorded statement.

       In her recorded statement, Appellant admitted to having gone to Castanon’s house with the

others that night to get the ecstasy. She claimed Garay had entered the house alone to buy the

pills. Shortly after Garay entered the home she heard Garay scream for help, and she rushed in to

find Garay and Castanon struggling. Appellant began punching Castanon with her fists, and

Castanon grabbed a pair of scissors and attempted to stab her with them. She took the scissors


                                                5
away from Castanon, and yelled for Macias. Macias promptly entered and began struggling with

Castanon. Both men ended up on the floor. Appellant claimed she continued to hit Castanon but

could not recall how many times because she was so “pissed” with him due to his prior threats

against her. She stated that Macias wrapped the jeans around Castanon’s neck while they

struggled on the floor. As Macias held the jeans around Castanon’s neck, Appellant smashed a

ceramic cookie jar on Castanon’s head. She claimed the reason the cabinet doors were left

hanging open was because Macias or Garay had ransacked the home for pills after the fight.

       Detective Sanchez was later able to identify the clothing that Appellant, Garay, and Macias

had worn that evening by viewing the security-camera footage from the night club they had

attended before the murder. A search warrant was subsequently executed at Macias’s house, and

police seized a black shirt, a vest, a red necktie, and a white undershirt, all of which were covered

with what police suspected to be blood. A search warrant was also executed at Appellant’s home

to recover the clothing she wore that evening, but her clothing did not show any visible blood

stains. Appellant, Garay, and Macias were subsequently arrested and charged with Castanon’s

murder.

       At trial, the State also introduced cellphone records of text messages exchanged between

Appellant, Garay, and Macias after leaving Castanon’s that night and returning to their respective

homes. In the text messages, Macias complained his face hurt but followed up by acknowledging

the three had “got down.” Appellant stated that she had received multiple cuts on her hand and

that it was hurting her, and Garay stated that she was taking care of Appellant. The State also

introduced the testimony of Michaela Bedwell, who was a full-time student at UTEP at the time

of trial. Bedwell testified that Macias sold her ecstasy pills the day after the murder. When the


                                                 6
two met up, Macias entered her vehicle and produced a gallon-size Ziploc bag filled almost to the

halfway point with ecstasy. He sold her two pills and told her to call him whenever she needed

more.

        Appellant testified in her own defense. She and Castanon had been friends for around a

year after she started purchasing marijuana from him, and they had had a falling out after her

neighbor beat him and stole his marijuana. Regarding the evening of Castanon’s murder, her

recollection differed in some respects from the video-recorded statement she gave to detectives the

night she came in for questioning. She testified she did not know they were going to Castanon’s

to get ecstasy until the moment they turned onto his street. Macias and Garay both entered

Castanon’s house initially while she waited in the car. According to Appellant, she entered the

house because Garay called her cellphone screaming for help, and once she entered the house she

saw Macias and Castanon struggling. She noted that the cabinet doors were already open at this

point. Being frightened, she ran into a bathroom to hide until the sounds of the altercation had

stopped. She then tried to leave the house but was attacked by Castanon, who grabbed her by the

hair and started punching her. She began punching Castanon back, causing him to let go of her

hair. He then grabbed a pair of scissors and lunged at her, managing to slice her hand. She

grabbed a jar and threw it at Castanon, striking him with it. At this moment, Macias reemerged

and grabbed Castanon, allowing Appellant the opportunity to run out of the house. Garay ran out

behind her and they both jumped into the car and waited for Macias. Macias took a long time to

return to the car. Garay told Appellant that when Castanon had produced the ecstasy pills, Garay

snatched them out of his hand, thus starting the altercation. Macias returned to the vehicle with

scratch marks on his face that had not been there when Appellant left the house and then the three


                                                7
of them drove away.

       Appellant claimed she first learned of Castanon’s death on Facebook the next day and was

in disbelief. Appellant testified that she, Garay, and Macias got together and discussed what

happened. According to Appellant, Macias insinuated that he would arrange an assault on

Appellant and Garay in jail if they told the police what happened. She did not recall her statement

to the police. Appellant stated that the discrepancies between her testimony and her video-

recorded statement was the result of her drinking that night and her inability to understand their

questions. She further claimed she gave inaccurate statements because she was afraid Macias

would carry out his threat if she implicated him. On cross-examination, Appellant stated she had

neither seen the pills Garay claimed to have taken from Castanon nor a gallon-sized bag containing

ecstasy.

       The jury found Appellant guilty of murder.          She elected to have the jury assess

punishment. During the punishment phase, several witnesses appeared on Appellant’s behalf.

Appellant’s former employer testified to her good performance as an employee. A long-time

family friend testified to Appellant’s good character and how the murder did not conform to that

behavior. Appellant’s husband testified that she was a good wife and a good mother to their child.

Appellant also took the stand and testified about her marriage, her child, her education, and her

volunteer work with her church.

       The jury sentenced Appellant to forty-eight years’ confinement and assessed a $10,000

fine. This appeal followed.

                                         DISCUSSION

                                  Sufficiency of the Evidence


                                                8
       In her first and second issues, Appellant asserts:        (1) there was legally insufficient

evidence to show she intended to cause serious bodily injury to Castanon and committed an act

clearly dangerous to human life; and (2) there was legally insufficient evidence to show Appellant

committed felony murder.

                                        Standard of Review

       In a sufficiency challenge, the reviewing court does not act as a thirteenth juror, reweighing

the evidence and substituting its judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735,

740 (Tex.Crim.App. 1999), holding modified by Guidry v. State, 9 S.W.3d 133 (Tex.Crim.App.

1999). We view the evidence in the light most favorable to the verdict and will uphold the

conviction if there is sufficient evidence to justify a jury to rationally find the appellant guilty

beyond a reasonable doubt on all essential elements of the offense. Salinas v. State, 163 S.W.3d

734, 737 (Tex.Crim.App. 2005). The evidence is measured against the hypothetically correct jury

charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App. 2009). A hypothetically

correct jury charge lists all elements of the offense, is consistent with the indictment, and does not

unnecessarily increase the prosecution’s burden of proof. Id.

                                          Applicable Law

       Relevant to the present case, a person commits the offense of murder under two

circumstances:    (1) she intends to cause serious bodily injury and commits an act clearly

dangerous to human life that causes the death of an individual; or (2) she commits or attempts to

commit a felony, other than manslaughter, and in the course of and in furtherance of the

commission or attempt, or in immediate flight from the commission or attempt, she commits or

attempts to commit an act clearly dangerous to human life that causes the death of an individual.


                                                  9
TEX.PENAL CODE ANN. § 19.02(b)(2)–(3)(West 2011). “‘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.” TEX.PENAL

CODE ANN. § 1.07(46)(West Supp. 2018). An act clearly dangerous to human life is one that

creates a substantial risk of death. Depauw v. State, 658 S.W.2d 628, 634 (Tex.App.--Amarillo

1983, pet. ref’d); White v. State, No. 03-07-00731, 2011 WL 4825650, at *5 (Tex.App.--El Paso

Oct. 12, 2011, pet. ref’d)(not designated for publication).

       Under Texas law, a defendant may be held criminally responsible as a party for an offense

committed by another under certain enumerated circumstances. TEX.PENAL CODE ANN. § 7.02

(West 2011). One such circumstance is when the defendant—acting with intent to promote or

assist the commission of the offense—solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense. TEX.PENAL CODE ANN. § 7.02(a)(2). Evidence is sufficient

to support a conviction under this section where the defendant is physically present at the

commission of the offense and encourages the commission of the offense by either words or other

agreement. Beier v. State, 687 S.W.2d 2, 3 (Tex.Crim.App. 1985)(citing Tarpley v. State, 565

S.W.2d 525 (Tex.Crim.App. 1978)). There must be evidence of intentional participation; mere

presence alone is insufficient. Id., at 4. In determining whether the defendant participated as a

party, the court may look to events occurring before, during, and after the commission of the

offense, and may rely on actions of the defendant evincing an understanding and common design

to do the prohibited act. Id., at 4 (citing Medellin v. State, 617 S.W.2d 229 (Tex.Crim.App.

1981)); Reed v. State, 550 S.W.3d 748, 765 (Tex.App.--Texarkana 2018, no pet.). That each party

was doing some part of the common purpose is sufficient to show the parties were acting together.


                                                 10
Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985).

       A second relevant circumstance under which a defendant may be held liable for an offense

committed by another is described in the Penal Code as follows:

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

TEX.PENAL CODE ANN. § 7.02(b).

       As with party liability, participation may be inferred from the circumstances and may be

demonstrated by direct or circumstantial evidence. Beardsley v. State, 738 S.W.2d 681, 684

(Tex.Crim.App. 1987). The reviewing court should review events occurring before, during, and

after the commission of the offense and may rely on actions of the defendant evincing an

understanding and common design to commit the offense. King v. State, 29 S.W.3d 556, 564

(Tex.Crim.App. 2000).

                                         Analysis

       Here, the hypothetically correct jury charge for serious-bodily-injury murder as a party

would require the jury to find beyond a reasonable doubt that; (1) Appellant, (2) acting as a party,

(3) with intent to promote or assist the commission of the offense of murder by soliciting,

encouraging, directing, aiding, or attempting to aid Macias or Garay, (4) with intent to cause

serious bodily injury to Castanon, (5) committed an act clearly dangerous to human life by

compressing Castanon’s neck with jeans, (6) that caused Castanon’s death. TEX.PENAL CODE

ANN. § 19.02(b)(2); TEX.PENAL CODE ANN. § 7.02(a)(2).

       The jury heard evidence—through Appellant’s video-recorded statement to police—that


                                                11
she smashed the ceramic cookie jar on Castanon’s head while he was lying on the floor and while

Macias had the blue jeans wrapped around Castanon’s neck. The jury also heard her state on the

video that she had been punching him while he and Macias struggled on the floor and continued

to do so after Macias had begun strangling him with the blue jeans. She also stated that she could

not recall how many times she punched him because she was furious with him over his alleged

prior threats against her. The medical examiner testified that Castanon died from asphyxiation

due to compression of his neck. From this evidence, a jury could have rationally concluded that

Appellant intended to assist Macias by participating in beating Castanon and smashing a jar on

him while he was being strangled, that she intended to cause serious bodily injury to Castanon and

intended to and did assist Macias in committing an act clearly dangerous to human life resulting

in Castanon’s death.    Beier, 687 S.W.2d at 3.      While her testimony at trial regarding her

participation that night differed significantly from her recorded statement, the jury—as the sole

judge of witness credibility and the weight to be given to individual testimony—was within its

prerogative to disbelieve her trial testimony.        Brooks v. State, 323 S.W.3d 893, 899

(Tex.Crim.App. 2010)(appellate court is required to defer to the jury’s credibility and weight

determinations); Padilla v. State, 326 S.W.3d 195, 201 (Tex.Crim.App. 2010)(rational fact finder

can consider a defendant’s inconsistent statements in connection with other circumstances as

affirmative evidence of guilt).    Accordingly, there was sufficient evidence for the jury to

rationally conclude that Appellant was a party to the offense under Section 7.02(a)(2) based on her

presence and participation.    TEX.PENAL CODE ANN. § 7.02(a)(2).         Because the charge was

submitted under the alternative theories of serious-bodily-injury murder and felony murder and

the jury returned a general verdict, our holding that there was legally sufficient evidence for the


                                                12
jury to find her guilty as a party to serious-bodily-injury murder negates the necessity to address

her sufficiency challenge to a finding of felony murder. Gonzalez v. State, 8 S.W.3d 640, 641

(Tex.Crim.App. 2000)(when a jury returns a general verdict on alternate theories of committing

the same offense, the verdict stands if the evidence is sufficient to support a finding under any of

the theories submitted)(citing Griffin v. U.S., 502 U.S. 46, 49, 112 S.Ct. 466, 469, 116 L.Ed.2d

371 (1991)). Thus, Appellant’s first and second issues are overruled.

                              Jury Charge Error: Egregious Harm

         In her third, fourth, and fifth issues, Appellant alleges jury charge errors each of which

resulted in egregious harm. In Issue Three, she contends the charge erroneously allowed the jury

to find her guilty of murder as a party if it found she assisted in the commission of a robbery but

did not require it to find she assisted in the commission of an act clearly dangerous to human life

or intended to assist in causing Castanon’s death. In Issue Four, Appellant contends the trial

court’s charge failed to require the jury to find that she intended to assist Garay and Macias in

causing serious bodily injury to Castanon or require it to find she assisted in the commission of an

act clearly dangerous to human life or intended to assist in causing Castanon’s death. In Issue

Five, Appellant asserts the trial court’s charge allowed the jury to find her guilty of felony murder

without requiring that the jury find the underlying felony and the associated act clearly dangerous

to human life caused Castanon’s death. Appellant did not object to any of these alleged errors at

trial.

                                        Standard of Review

         An appellate court reviews a claim of jury-charge error by first determining whether an

error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). If the


                                                 13
reviewing court finds error in the charge, it then analyzes that error for harm. Middleton v. State,

125 S.W.3d 450, 453 (Tex.Crim.App. 2003). The level of harm required for reversal depends on

whether the defendant objected to the error at trial. Almanza v. State, 686 S.W.2d 157, 171

(Tex.Crim.App. 1985)(op. on reh’g). When a defendant fails to object or states that he has no

objection to the charge, the court will not reverse for jury-charge error unless the record shows

“egregious harm” to the defendant. Ngo, 175 S.W.3d at 743–44. This is a difficult standard to

meet and requires a showing that the defendant was deprived of a fair and impartial trial. Taylor

v. State, 332 S.W.3d 483, 489 (Tex.Crim.App. 2011). The record must demonstrate actual rather

than theoretical harm. Torres v. State, 543 S.W.3d 404, 414 (Tex.App.--El Paso 2018, pet.

ref’d)(citing Cosio v. State, 353 S.W.3d 766, 777 (Tex.Crim.App. 2011)). “To establish actual

harm, the charge error must have affected the very basis of the case, deprived Appellant of a

valuable right, or vitally affected a defensive theory.” Id. In making that determination, we

review: (1) the entire charge; (2) the state of the evidence, including the contested issues and the

weight of the probative evidence; (3) the arguments of counsel; and (4) any other relevant

information revealed by the record. State v. Sanchez, 393 S.W.3d 798, 803 (Tex.App.--El Paso

2012, pet. ref’d)(citing Ngo, 175 S.W.3d at 750 n.48).

                                         Applicable Law

       The duty of the trial court in charging the jury is to communicate to the jury each statutory

definition that affects the meaning of an element of an offense. TEX.CODE CRIM.PROC.ANN.

art. 36.14 (West 2007); see also Villarreal v. State, 286 S.W.3d 321, 329 (Tex.Crim.App. 2009);

Vasquez v. State, 389 S.W.3d 361, 366 (Tex.Crim.App. 2012)(“The purpose of the trial judge’s

jury charge is to instruct the jurors on all of the law that is applicable to the case.”). The


                                                14
application paragraph of the jury charge applies the relevant penal law, abstract definitions, and

general legal principles to the facts of the case and the indictment allegations. Vasquez, 389

S.W.3d at 366. When the application paragraph of a jury charge incorrectly applies the relevant

penal law to the facts of a given case, it is erroneous. Cortez v. State, 469 S.W.3d 593, 598

(Tex.Crim.App. 2015). “[T]erms which have a technical legal meaning may need to be defined

. . . particularly . . . when there is a risk that the jurors may arbitrarily apply their own personal

definitions of the term or where a definition of the term is required to assure a fair understanding

of the evidence.” Middleton, 125 S.W.3d at 454.

       Appellant relies primarily on the case of Nava v. State to support her contention that the

trial court provided erroneous instructions to the jury regarding felony murder. In Nava, the

appellant and his codefendant were charged with felony murder and organized criminal activity.

Nava v. State, 415 S.W.3d 289, 292 (Tex.Crim.App. 2013).              As part of a sting operation

conducted by the Houston Police Department, an undercover officer arranged to sell purportedly

stolen televisions to Nava’s codefendant. Id., at 292. Nava, his codefendant, a third man, and a

young woman arrived at the arranged meeting location to purchase the stolen televisions. Id.

After agreeing on the price and paying the undercover officer, the officer—who was wearing a

wire—gave the signal for police to move in by stating “It’s a done deal.” Id. But this was the

wrong signal phrase, and the defendants became increasingly agitated because the officer was not

handing over the keys to the van containing the stolen televisions. Id. As the officer repeated

the incorrect phrase, the third man approached the officer from behind with a pistol drawn and

demanded the keys. Id. From the audio recording, it sounded as if Nava said, “Shoot him!” and,




                                                 15
after demanding the keys once more, the man shot the officer in the back. Id., at 293. The officer

died of his injuries. Id.

        Nava was convicted of murder as a party and sentenced to sixty years’ imprisonment.

Nava, 415 S.W.3d at 292. On appeal, he complained a paragraph in the application portion of the

charge misled the jury and may have allowed it to convict him if it found he intended to promote

or assist in the felony theft but not the act clearly dangerous to human life. Id., at 294-95.

Specifically, he complained the use of the term “the offense” was ambiguous. Id., at 294-95.

The complained-of paragraph stated:

        Now, if you find from the evidence beyond a reasonable doubt that on or about June
        23, 2009, in Harris County, Texas, [codefendant] and/or Roberto Carrillo, did then
        and there unlawfully, intentionally or knowingly commit or attempt to commit
        felony theft, and while in the course of and furtherance of the commission or
        attempted commission of felony theft, Roberto Carrillo did commit an act clearly
        dangerous to human life, to wit: shooting H. Canales with a deadly weapon, namely,
        a firearm and did thereby cause the death of H. Canales, and that the defendant . . .
        with the intent to promote or assist the commission of the offense, if any, solicited,
        encouraged, directed, aided or attempted to aid [codefendant] and/or Robert
        Carrillo to commit the offense . . . . [Emphasis in original].

Id., at 294.

        Because Nava failed to object at trial, he was not entitled to reversal unless the record

demonstrated egregious harm. Id., at 298. In its analysis, the Court of Criminal Appeals stated

that, at most, the use of the term “the offense,” created only an implication that the jury could

misconstrue the term to refer to the underlying theft, but that common sense suggested the jurors

would not have misread the charge because doing so would render the conspiracy-liability portions

of the charge superfluous, and in any event the abstract instruction correctly required the State to

prove that Nava intended to promote or assist the commission of felony murder. Id., at 298-99.

Combined with the parties’ vigorous dispute over whether Nava said, “Shoot him!”—which would

                                                 16
have been pointless if the participation in the underlying theft were all that mattered—the court

concluded that the jury most likely understood the application paragraph in a manner consistent

with the law. Id., at 302. The record, therefore, did not demonstrate egregious harm. Id.

                                             Analysis

       Here, Appellant claims the application paragraph was similarly misleading because of the

use of the term “the offense.” She claims the harm here, however, was egregious because in

addition to the misleading charge the State emphasized the error by repeatedly misstating to the

jury that it only need believe Appellant intended to promote or assist the underlying robbery to

find her guilty of felony murder.     She further contends that the second half of the charge

paragraph—dealing with felony murder—failed to require that the act caused the death of

Castanon. As to serious-bodily-injury murder, Appellant claims the charge did not require the

jury to find she intended to assist in causing Castanon serious bodily injury and did not require it

to find she assisted in committing an act clearly dangerous to human life or intended to assist in

causing Castanon’s death. The charge paragraph Appellant complains of read as follows:

                                             Count I

                                              Murder

               If you find from the evidence beyond a reasonable doubt that on or about
       the 17th day of May, 2013, in El Paso County, Texas, the defendant, SONIA
       BAUTISTA, did then and there, either acting alone or as a party, with intent to
       promote or assist the commission of the offense by soliciting, encouraging,
       directing, aiding or attempting to aid Ricky Macias or Briana Garay, with intent to
       cause serious bodily injury to an individual, namely, Jose Castanon, commit an act
       clearly dangerous to human life, to wit: compressing Jose Castanon’s neck with
       jeans, that caused the death of the said Jose Castanon; or did then and there, either
       acting alone or as a party, with intent to promote or assist the commission of the
       offense by soliciting, encouraging, directing, aiding, or attempting to aid Ricky
       Macias or Briana Garay, commit or attempt to commit the felony offense of
       Robbery, and while in the course of and in furtherance of the commission of said

                                                17
       offense, did then and there commit an act clearly dangerous to human life, to wit:
       compressing Jose Castanon’s neck with jeans, and that the said Defendant used or
       exhibited a deadly weapon, to wit: jeans, during the commission of or immediate
       flight from said offense . . . . [Emphasis added].

       As in Nava, nothing in the application paragraph expressly directs the jury to deliberate in

a manner inconsistent with the law. Nava, 415 S.W.3d at 300. Further, as the State correctly

points out, just as in Nava, the abstract portion of the jury charge correctly defined party liability:

               A person is criminally responsible as a party to an offense if the offense is
       committed by her own conduct, or by the conduct of another for which she is
       criminally responsible, or both. Each party to an offense may be charged with the
       commission of the offense. A person is criminally responsible for an offense
       committed by the conduct of another if, acting with intent to promote or assist the
       commission of the offense, she solicits, encourages, directs or aids or attempts to
       aid the other person to commit the offense. Mere presence alone will not make a
       person a party to an offense.

Even assuming the implication of the jury misconstruing the charge language is as strong in this

case as it was in Nava, the proper recitation of the law in the abstract portion minimized any error

in the application paragraph. Id. Accordingly, we must review the state of the evidence and

arguments of counsel to determine if the record demonstrates egregious harm. Sanchez, 393

S.W.3d at 803.

       As noted, Appellant claims the State repeatedly mischaracterized the law regarding felony

murder and party liability. Appellant points to voir dire during which the prosecutor stated a

person can be convicted of murder under the felony murder rule even if she did not intend to kill

the victim and even if she was not the individual who killed the victim. He followed up by stating,

“So if you help your friend commit a felony, right, and during that felony, your friend commits an

act clearly dangerous to human life that causes the death of someone, and you helped them during

that felony, you can be convicted of felony murder.” But this statement, while it could be


                                                  18
misconstrued as a misstatement of the law, is ambiguous; the prosecutor’s statement “and you

helped them during that felony” can also be interpreted as referring to the antecedent clause “your

friend commits an act clearly dangerous to human life that causes the death of someone.” In that

interpretation, the prosecutor would be correctly stating the law regarding felony murder. Nava,

415 S.W.3d at 300. Further, the prosecutor had correctly defined party liability moments before

by stating that a person is guilty of an offense as a party if she intends to assist in the offense and

does in fact assist in that particular offense. Appellant also points to the prosecutor’s statements

during closing that “whether she meant to rob him—whether she herself—doesn’t matter. If she

knew that those two . . .” as an additional misstatement of the law. Defense counsel objected

before this statement was finished, and the trial court instructed the jury that it had the charge in

front of it and it should recall the evidence it had heard. Curative instructions generally cure any

prejudicial effect of improper argument. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.

1995)(citing McGee v. State, 774 S.W.2d 229, 238 (Tex.Crim.App. 1989)). The arguments of

counsel cited by Appellant as improper only allow for an inference of theoretical, not actual, harm,

and therefore do not weigh in favor of finding egregious harm. See Torres, 543 S.W.3d at 414.

       Finally, Appellant claims the evidence at trial pointed to Macias as the one who killed

Castanon, and so therefore the alleged error in the application paragraph “was devastating to the

defensive theory of the case.” While Appellant’s testimony at trial was she and Garay had run

out of the home while Macias and Castanon were still struggling—thus painting him as the sole

actor in the killing—her video-recorded statement contradicted this portrayal. In her video-

recorded statement, Appellant admitted to striking Castanon with her fists and smashing the jar on

his head while he was being strangled by Macias. As to her defensive theory, it was, in essence,


                                                  19
she had not participated in the murder or the alleged robbery—but rather she had innocently

entered the home and got caught up in the struggle against her will and fled at the earliest

opportunity. The ambiguity in the instruction would not have affected her defensive theory

because even if it were misconstrued by the jury, it still required the jury to find she intended to

assist and did assist Macias or Garay in robbing Castanon, therefore rejecting her defensive theory.

To qualify as egregious error, the error must deprive the defendant of a valuable right or vitally

affect her defensive theory, which the record does not demonstrate. Almanza, 686 S.W.2d at 172.

Based on the state of the evidence and the contested issues, the arguments of counsel, and the

charge itself, the record does not demonstrate egregious harm from the ambiguity in the jury

charge. Accordingly, Appellant’s third, fourth, and fifth issues are overruled.

                                 Objected-to Jury-Charge Error

        In her sixth, seventh, and eighth issues, Appellant contends there was jury-charge error

regarding the self-defense instructions. In Issue Six, Appellant claims the trial court erred in

including in the charge portions the law of self-defense relating to the presumption of

reasonableness that was not raised by the evidence. In Issue Seven, Appellant asserts the trial

court erred in instructing the jury that if it found against her on the presumption of reasonableness

it should find against her on the issue of self-defense. And in Issue Eight, Appellant claims the

trial court erred in including the law of self-defense as it relates to deadly force in the jury charge.

Appellant objected to these errors at trial.

                                         Standard of Review

        As noted above, we review claims of jury-charge error by first determining whether an

error exists in the charge. Ngo, 175 S.W.3d at 743. If we find error in the charge, we then


                                                  20
analyze that error for harm. Middleton, 125 S.W.3d at 453. The level of harm required for

reversal depends on whether the defendant objected to the error at trial. Almanza, 686 S.W.2d at

171. If the defendant timely objected to the error, the error is analyzed under the “some harm”

standard: the judgment may not be reversed unless the error was calculated to injure the rights of

the defendant. Id. In deciding whether some harm occurred, the court reviews “the actual degree

of harm must be assayed in light of the entire jury charge, the state of the evidence, including the

contested issues and weight of probative evidence, the argument of counsel and . . . any other part

of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused.”

Id. at 171-74.

                                          Applicable Law

       The duty of the trial court in charging the jury is to communicate to the jury each statutory

definition that affects the meaning of an element of an offense. TEX.CODE CRIM.PROC.ANN.

art. 36.14. When the application paragraph of a jury charge incorrectly applies the relevant penal

law to the facts of a given case, it is erroneous. Cortez, 469 S.W.3d at 598. There is a higher

need for defining terms that have a technical meaning when there is a risk that the jurors may

arbitrarily apply their own definitions of the term. Middleton, 125 S.W.3d at 454.

       Self-defense is an issue of fact to be determined by the jury. Saxton v. State, 804 S.W.2d

910, 913 (Tex.Crim.App. 1991). Section 9.31 of the Penal Code provides that an actor is justified

in using force against another to the degree the actor reasonably believes the force is immediately

necessary to protect the actor against the other’s use or attempted use of unlawful force.

TEX.PENAL CODE ANN. § 9.31(a)(West 2011). The Penal Code also provides that an actor can be

justified in using deadly force against another person if the actor would be justified under Section


                                                 21
9.31 in using force and the actor reasonably believes that deadly force is immediately necessary to

protect the actor from the other’s use or attempted use of unlawful deadly force or to prevent the

other’s imminent commission of murder. TEX.PENAL CODE ANN. § 9.32(a)(West 2011). Under

either section, the actor’s belief that the force or deadly force was immediately necessary is

presumed to be reasonable if the actor:

   (1) knew or had reason to believe that the other was committing or attempting commit murder;

   (2) did not provoke the other person against whom the force was used; and

   (3) was not otherwise engaged in criminal activity.

TEX.PENAL CODE ANN. §§ 9.31(a); 9.32(b).

                                             Analysis

       Appellant complains that the application paragraph regarding self-defense improperly

included the presumption of reasonableness because its inclusion effectively eliminated her theory

of self-defense from the jury’s consideration. The complained-of paragraph read as follows:

       You are further instructed, however, that if you believe from the evidence beyond
       a reasonable doubt, or if you believe beyond a reasonable doubt that the State has
       proven that the facts giving rise to the presumption of reasonable belief that force
       or deadly force was immediately necessary do not exist or that at the time and place
       in question JOSE CASTANON was not using or attempting to use unlawful force
       or deadly force against SONIA BAUTISTA or BRIANA GARAY, or that SONIA
       BAUTISTA or BRIANA GARAY was not justified in using force or deadly force,
       then you will find against the Defendant on her plea of self-defense or defense of a
       third person, and say by your verdict ‘guilty’ (Verdict Form ‘A’). [Emphasis
       added].

The abstract portion of the charge laid out Sections 9.31 and 9.32 regarding self-defense verbatim.

Appellant contends the presumption of reasonableness does not apply to an actor who had no

reason to believe that the person against whom deadly force was used was attempting to commit

murder, and also does not apply to an actor who used deadly force while otherwise engaged in

                                                22
criminal activity, citing Section 9.32(b) and Villarreal v. State, 453 S.W.3d 429, 439

(Tex.Crim.App. 2015). Therefore, she claims, the trial court erred in failing to exclude the

presumption from the charge because the charge instructed the jury to find against her if it found

the circumstances that give rise to the presumption of reasonableness were lacking. But the end

of the complained-of paragraph properly instructs the jury that if it finds the presumption did not

apply, it still must find that Appellant was not justified in using force or deadly force, as indicated

by the comma and use of “or” following the instruction on the presumption of reasonableness.

Further, the paragraph dealing with self-defense immediately preceding the complained-of

paragraph correctly instructed the jury that it was required to find Appellant not guilty if it believed

she had a reasonable belief that force or deadly force was immediately necessary to protect herself

or Garay from Castanon. As to the deadly force instruction, the trial court properly instructed the

parties that absent agreement from them it would include the law of self-defense in its entirety and

allow the parties to inform the jury which parts were applicable to the case, which they did. The

record presented does not show error in the charge given to the jury. Accordingly, we do not

reach the harm analysis. Ngo, 175 S.W.3d at 743. Appellant’s sixth, seventh, and eighth issues

are overruled.

                                     Improper Jury Argument

        In her ninth issue, Appellant contends the State improperly argued to the jury that it could

find her guilty if it believed she knew Macias and Garay were going to rob Castanon, and the trial

court erred in overruling her objections to the State’s improper arguments.

                                         Standard of Review




                                                  23
       Permissible jury argument generally falls into one of four areas: (1) summation of the

evidence; (2) reasonable deductions from the evidence; (3) responses to opposing counsel's

argument; and, (4) pleas for law enforcement.          Coble v. State, 871 S.W.2d 192, 204

(Tex.Crim.App. 1993)(citing Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App. 1973)).

Any argument outside of these enumerated areas is erroneous. Id. If an argument is determined

to be error, that error is subject to a harm analysis. Freeman v. State, 340 S.W.3d 717, 728

(Tex.Crim.App. 2011).      A non-constitutional error is reviewed to determine whether the

defendant’s substantial rights were affected by the improper argument.        Id.   To make that

determination, the reviewing court balances the severity of the misconduct, any curative measures,

and the certainty of conviction absent the misconduct. Id.

                                            Analysis

       Appellant’s complaint centers on the following portion of the State’s closing arguments:

       [STATE]:       And the last thing I think is the most important—well, I don’t know.
       The three of them, those are all important. The last one is whether she meant to
       rob him—whether she herself—doesn’t matter. If she knew that those two—

       [DEFENSE]: I’m going to object to that, Your Honor. It does require an intent
       to commit aggravated robbery so as to make her guilty of—

       [COURT]:      I just need a legal objection. Members of the jury, you have the
       Court’s charge in front of you, and you’ll recall the evidence you heard.

       [STATE]:        If she knew that they went there to rob him and she agreed to go
       along with it, that counts, okay? It’s the same as the getaway driver. If you’re
       the getaway driver, and you go and you park outside—

       [DEFENSE]: I’m going to object, Your Honor. This is a misstatement of the
       facts and the law. The getaway driver is driving and she was in the backseat.

       [COURT]:       Overruled.



                                               24
       [STATE]:       The getaway driver knows that his buddy is going inside to rob the
       store and he sits out there and he waits for his buddy to come out, that’s robbery.
       Even if the—obviously the getaway driver himself is not committing the robbery,
       but he knows that his buddy is.

       [DEFENSE]: Your Honor, once again, he drove the individual there.

       [COURT]:        The legal objection is?

       [DEFENSE]: It’s a misstatement of the law.

       [COURT]:        Overruled.

Appellant contends that the State mischaracterized the law of parties, creating a possible

misperception amongst the jury that it only needed to find that she intended to rob Castanon to

find her guilty of murder. In context, the State was providing a list during closing of factors it

considered important—her intent to participate in the robbery being the third mentioned. The

second factor emphasized by the State was that Appellant smashed the jar on Castanon’s head

while he was already on the floor, and the first was that she helped Macias assault him. Though

perhaps unclearly stated, the State correctly described the law of parties regarding knowledge and

intent to assist in the offense. TEX.PENAL CODE ANN. § 7.02(a)(2); Beier, 687 S.W.2d at 3.

Further, the State’s analogy to the “getaway driver” was also a reference to its analogy during voir

dire regarding the law of parties, where the State explained that a getaway driver was also guilty

of robbery even though his participation was limited to waiting outside and assisting the escape.

Because Appellant was charged as a party and because Appellant claimed ignorance of Garay or

Macia’s intent to rob Castanon, these were proper jury arguments. Coble, 871 S.W.2d at 204.

Accordingly, the trial court did not err in overruling Appellant’s objections. Appellant’s ninth

issue is overruled.

                                Ineffective Assistance of Counsel

                                                 25
       In her final issue, Appellant contends the trial court abused its discretion in refusing to

grant her motion for new trial based on ineffective assistance of counsel. Specifically, she asserts

her counsel failed to interview potential defense witnesses, failed to adequately prepare them to

testify, and failed to call additional mitigation witnesses who were available to testify.

                                        Standard of Review

       A trial court’s decision to deny a motion for new trial is reviewed for abuse of discretion.

Riley v. State, 378 S.W.3d 453, 457 (Tex.Crim.App. 2012). A trial court is granted broad

discretion in assessing the credibility of witnesses and weighing the evidence when considering a

motion for new trial. Messer v. State, 757 S.W.2d 820, 824 (Tex.App.--Houston [1st Dist.] 1988,

pet. ref’d). We will reverse for abuse of discretion only if no reasonable view of the record

supports the trial court’s ruling. Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007). In

applying this deferential review, we must view the evidence in the light most favorable to the trial

court’s ruling and must uphold the ruling if it is within the zone of reasonable disagreement.

Riley, 378 S.W.3d at 457.

                                          Applicable Law

       A criminal defendant is entitled to be represented by effective, competent counsel under

the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). When challenging the effectiveness of

counsel, an appellant must show that there was no plausible professional reason for a specific act

or omission by counsel. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). We indulge

a strong presumption that counsel’s actions were professional, and any allegation of

ineffectiveness must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813


                                                 26
(Tex.Crim.App. 1999). If counsel was ineffective, we must also determine whether there is a

reasonable probability that, but for counsel’s error, the outcome of the proceeding would have

been different. Id., at 812; Adekeye v. State, 437 S.W.3d 62, 73 (Tex.App.--Houston [14th Dist.]

2014, pet. ref’d). This two-prong test need not be analyzed in any particular order: appellant’s

failure to satisfy either prong defeats a claim of ineffective assistance of counsel. Garcia v. State,

57 S.W. 3d 436, 440 (Tex.Crim.App. 2001)(citing Strickland, 466 U.S. at 697, 104 S.Ct. at 2069).

         Counsel has a duty to make an independent investigation of the facts of a case. Ex parte

Welborn, 785 S.W.2d 391, 396 (Tex.Crim.App. 1990). A decision not to investigate must be

directly assessed for reasonableness in all the circumstances, applying a heavy measure of

deference to counsel's judgments. Wiggins v. Smith, 539 U.S. 510, 521–22, 123 S.Ct. 2527, 2535,

156 L.Ed.2d 471 (2003). When an ineffective assistance of counsel claim is based on an uncalled

witness, the appellant must show that the witness would have been available to testify and that his

testimony would have benefitted the defense. Ex parte White, 160 S.W.3d 46, 52 (Tex.Crim.App.

2004).

                                              Analysis

         Appellant’s trial counsel testified at the hearing on her motion for new trial. He testified

that he met with Appellant between fifteen and twenty times prior to trial, and in some of those

meetings he discussed their strategy for the punishment phase if she were to be found guilty. He

stated that he asked her to gather various witnesses that would testify on her behalf and to bring

them to court. He claimed he asked her to have them get in touch with him if necessary to discuss

potential issues.   He also testified that he spoke with the witnesses themselves before the

punishment phase regarding their testimony. Counsel stated part of his strategy was to pack the


                                                 27
courtroom with as many supporters as possible and to strategically select anywhere between two

to seven witnesses to testify. Those selected would not be available to sit in the courtroom as

supporters because the Rule would have been invoked.              He stated he told Appellant what

characteristics were helpful and what testimony he desired from the witnesses and asked for her

choices based on that criteria. Ultimately, the defense called Appellant’s former employer, a

long-time family friend, Appellant’s husband, and Appellant herself.               Appellant’s former

employer testified as to her good performance as an employee and to her friendly demeanor. The

family friend testified that she loved her like a daughter, that this crime was totally out of character,

and Appellant was a good person. Appellant’s husband—a mechanic with the United States

Army—testified to how they first met, Appellant was a kind and generous person, and a wonderful

wife and mother. Appellant took the stand and discussed her marriage, her love for her husband,

her son, and her deep regret over what happened to Castanon. Counsel testified that although he

initially wanted Appellant’s mother to testify, Appellant advised against it and satisfied him that

she would not be a good witness. He stated that Appellant’s grandparents were not called for the

same reason. At the hearing on the motion for new trial, Appellant and her husband both testified

that additional people from Appellant’s workplace and from her church were willing to come

forward to testify on her behalf. They did not say what these witnesses would testify to.

        The record before us demonstrates that counsel explained his strategic decisions regarding

the witnesses he called and that he spoke with them before the punishment phase about their

testimony.   He also explained his strategic thinking regarding the witnesses he kept in the

courtroom to show that Appellant had strong support. The record does not demonstrate that

counsel was ineffective for failing to interview or call additional witnesses or what, if anything,


                                                   28
what these additional witnesses could have provided to the jury or modified the punishment

verdict. Even if counsel’s actions were found ineffective, the record does not give any indication

that there is a reasonable probability that her sentence would have been different. As Appellant

recognizes in her brief, it is speculative at best whether additional character witnesses would have

favorably influenced the jury’s assessment of punishment, and mere speculation does not

demonstrate a probability that the outcome would have been substantially different. Thompson,

9 S.W.3d at 813. Accordingly, based on the record before us, we cannot say that the trial court

abused its discretion in finding no merit to Appellant’s claim of ineffective assistance of counsel.

Riley, 378 S.W.3d at 457. Appellant’s tenth issue is overruled.

                                         CONCLUSION

       Having overruled Issues One through Ten, the judgment of the trial court is affirmed.



October 10, 2018
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




                                                29
