       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING



                                      NO. 03-18-00578-CR



                                Krystal Nicole Lerma, Appellant

                                                 v.

                                  The State of Texas, Appellee


             FROM THE 391ST DISTRICT COURT OF TOM GREEN COUNTY
       NO. D-17-0115-SA, THE HONORABLE BEN WOODWARD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               We withdraw the opinion and judgment dated August 14, 2019, and substitute the

following opinion and judgment in their place. We deny appellant’s motion for rehearing.

               A jury found appellant Krystal Nicole Lerma guilty of burglary of a habitation,

and the trial court sentenced her to 27 years’ imprisonment. In eight points of error, Lerma

contends that the evidence was insufficient to support her conviction and that the trial court

committed various errors in the jury charge. We will affirm the trial court’s judgment of conviction.


                                          DISCUSSION

Sufficiency of the Evidence

               In her first point of error, Lerma contends that the evidence was insufficient to

support her conviction. “In assessing the sufficiency of the evidence to support a criminal
conviction, we consider all the evidence in the light most favorable to the verdict and determine

whether, based on that evidence and reasonable inferences therefrom, a rational juror could

have found the essential elements of the crime beyond a reasonable doubt.” Braughton v. State,

569 S.W.3d 592, 607–08 (Tex. Crim. App. 2018) (internal quotation marks omitted). “We

measure the evidence by the elements of the offense as defined by the hypothetically correct jury

charge.” Id. at 608. “This familiar standard recognizes the trier of fact’s role as the sole judge of

the weight and credibility of the evidence after drawing reasonable inferences from the evidence.”

Id. (internal quotation marks omitted). “On review, this Court determines whether the necessary

inferences made by the trier of fact are reasonable, based upon the cumulative force of all the

evidence.” Id. (internal quotation marks omitted). “We presume that the factfinder resolved any

conflicting inferences in favor of the verdict, and we defer to that resolution.” Id.

               Here, the indictment alleged that Lerma committed burglary by entering the

habitation of Jimmy Andrew Gonzales without his effective consent with the intent to commit

robbery. As relevant to this case, a person commits burglary if she enters a habitation without

the effective consent of the owner with the intent to commit a felony other than theft. See

Tex. Penal Code § 30.02(d). In addition, “[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, he solicits, encourages, directs, aids, or attempts to aid the other

person to commit the offense.” Id. § 7.02(a)(2).

               At trial, the State presented evidence of the following:


   •   On the evening of September 12, 2016, Lerma entered Gonzales’s home. Anthony
       Martinez was also present in the home when Lerma arrived.



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   •   As Lerma was leaving the home, three men rushed inside. One of these men was
       Raymond Alvarado, Jr.

   •   Alvarado shot and killed Gonzales and Martinez.

   •   Police extracted a “Snapchat conversation” between Lerma and Alvarado from Lerma’s
       phone. This record showed that, at 9:03 p.m. on the evening of the shootings, Lerma sent
       Alvarado the following messages: “I want a tv too. Idc[1] which one but I want one. If I
       can do my part & it goes thru, then I want a TV[.]” “My babies broke theirs so I really
       need one.”

   •   Photos of Gonzales’s home taken after the shootings showed multiple flat-screen
       televisions.

   •   Phone records showed that Lerma called Alvarado at 8:48, 8:52, and 9:20 p.m. and that
       she received a call from Alvarado at 9:30 p.m. The records also showed that Lerma
       missed a call from Alvarado at 10:00 p.m.

   •   A neighbor who heard gunshots called 911 at 10:28 p.m.


                 In addition, the State presented video recordings of two interviews between

Lerma and police. In the first interview, Lerma denied that she went to Gonzales’s home on the

night of the shootings. According to Lerma, she was expecting Gonzales to come to her home

that evening to pick up some food, but he never came. However, during the second interview

Lerma confirmed the following:


   •   She had previously been in a sexual relationship with Gonzales, and he had lived with her
       for a while.

   •   She had been “really good friends with” Alvarado for a long time.

   •   Alvarado had told Lerma that he wanted to “beat up” and “rob” Gonzales. Lerma knew
       that Alvarado had problems with Gonzales because of an incident involving another
       woman.

   •   She knew that Alvarado had tried to “set up” Gonzales in the past.


       1
           A detective testified that “IDC” stands for “I don’t care.”
                                                   3
   •   She spoke with Alvarado on the phone on the night of the shootings and told him that she
       was heading to Gonzales’s home.

   •   After speaking with Alvarado, she knew that Alvarado wanted her to call him when she
       arrived at Gonzales’s home because Alvarado wanted to rob Gonzales.

   •   She went to Gonzales’s home to get some marihuana, because Gonzales was a drug dealer.

   •   As she was leaving Gonzales’s home, Alvarado rushed past her into the home. She then
       ran away and did not look back. She did not call the police.

   •   She admitted that she should have taken Alvarado seriously, that she “should have known,”
       and that she should have “said something.” She stated, “[Gonzales is] dead because of
       me and [Martinez is] dead because of me.” She denied that she intended to set them up
       and denied knowing that Alvarado wanted to kill Gonzales.

   •   She stated, “I don’t want to go to trial” and asked if she could just “do like a plea deal or
       something.”


               Viewing this evidence in the light most favorable to the verdict, we conclude that

a rational juror could have concluded that Alvarado entered Gonzales’s habitation without his

effective consent with the intent to commit robbery. Based on Lerma’s prior knowledge that

Alvarado intended to rob Gonzales, the phone records, the Snapchat conversation, the fact that

Lerma denied going to Gonzales’s home during her earlier police interview, and Lerma’s

admissions during her second interview, a rational juror could also have concluded that Lerma

intended to promote or assist the commission of the offense by aiding Alvarado in entering

Gonzales’s home. Accordingly, we conclude that the evidence was sufficient to support Lerma’s

conviction, and we overrule her first point of error.


Jury Charge Error

               In her second through eighth points of error, Lerma contends that the trial court

committed various errors in the jury charge. We review alleged jury charge error in two steps:


                                                  4
first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted

from the error to require reversal. See Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App.

2015) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g));

DeLeon v. State, No. 03-18-00268-CR, 2018 WL 6837742, at *1 (Tex. App.—Austin Dec. 28,

2018, pet. ref’d). Here, Lerma did not object to the alleged errors at trial or request alternate

instructions, so any error “will not result in reversal of the conviction without a showing of

egregious harm.” Price, 457 S.W.3d at 440. “The purpose of the egregious-harm inquiry is to

ascertain whether the defendant has incurred actual, not just theoretical, harm.” Swearingen v.

State, 270 S.W.3d 804, 813 (Tex. App.—Austin 2008, pet. ref’d). “Egregious harm is harm that

deprives a defendant of a fair and impartial trial.” Price, 457 S.W.3d at 440 (internal quotation

marks omitted). Stated differently, “[j]ury charge error is egregiously harmful if it affects the very

basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.”

Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017).


Comment on the Weight of the Evidence

               In her second point of error, Lerma contends that the trial court improperly

commented on the weight of the evidence in violation of Texas Code of Criminal Procedure

article 36.14 by including the following language in the jury charge:


       In judging the facts and the believability of the witnesses, you must apply the law
       provided in these instructions.

       ....

       While you should consider only the evidence, you are permitted to draw
       reasonable inferences from the testimony and exhibits that are justified in the light
       of common experience. In other words, you may make deductions and reach



                                                  5
       conclusions that reason and common sense lead you to draw from the facts that
       have been established by the evidence.


               These instructions are correct statements of the law. See Watson v. State, No. 03-

19-00015-CR, 2019 WL 2939247, at *2 (Tex. App.—Austin July 9, 2019, no pet. h.) (mem. op.,

not designated for publication); see also Johnson v. State, 560 S.W.3d 224, 226 (Tex. Crim. App.

2018) (noting that it is “the jury’s role to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts”) (internal

quotation marks omitted); Boston v. State, 373 S.W.3d 832, 836 (Tex. App.—Austin 2012),

aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013) (“The jury, as the exclusive judge of the facts, is

entitled to weigh and resolve conflicts in the evidence and draw reasonable inferences

therefrom.”). In addition, these instructions follow the Texas Pattern Jury Charges—more

specifically, instructions which are included in the general charge, or abstract charge, to the jury.

See State Bar of Tex., Texas Criminal Pattern Jury Charges: The General Charge, CPJC 2.1

(2018); see also H.E. Butt Grocery Co. v. Bilotto, 928 S.W.2d 197, 199, 200 (Tex. App.—San

Antonio 1996), aff’d, 985 S.W.2d 22 (Tex. 1998) (noting that, while the Texas Pattern Jury

Charges “are not ‘law’, they are heavily relied upon by both the bench and bar” and are “a

widely accepted source throughout the legal community”). Consequently, these instructions are

not “special instructions” and do not focus the jury’s attention on a specific type or piece of

evidence that may support an element of the offense. See Walters v. State, 247 S.W.3d 204, 212

(Tex. Crim. App. 2007) (generally, party is not entitled to a “special jury instruction relating to a

statutory offense or defense” if that instruction “(1) is not grounded in the Penal Code; (2) is

covered by the general charge to the jury, and (3) focuses the jury’s attention on a specific type

of evidence that may support an element of an offense or defense”) ; cf. Brown v. State, 122

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S.W.3d 794, 797 (Tex. Crim. App. 2003) (concluding that instruction that “intent or knowledge

may be inferred by acts done or words spoken” is improper because it “singles out a specific type

of evidence and tells the jury it may infer an element of the crime”). We conclude that the trial

court did not err in including these instructions, and we overrule Lerma’s second point of error.


Remaining Jury Charge Issues

               In her third point of error, Lerma contends that the trial court erred in including a

definition of “recklessly” in the jury charge. Lerma notes that the indictment alleges that she

entered a habitation with the intent to commit robbery, not that she actually committed robbery,

and argues that one cannot intend to act recklessly.

               In her fourth point of error, Lerma contends that the trial court erred in defining

“knowingly . . . in terms of circumstances-surrounding-conduct” by including the following

language: “A person acts knowingly, or with knowledge, with respect to the nature of her

conduct or to circumstances surrounding her conduct when she is aware of the nature of her

conduct or that the circumstances exist.”

               In her fifth point of error, Lerma contends that the trial court erred in “failing to

instruct the jury that it must apply a result-of-conduct definition of ‘with intent’ to the law of

parties” when it included the following instruction:


       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, aids, or attempts to aid the other person to
       commit the offense.

       A defendant acts with intent to promote or assist in the commission of an offense
       when it is her conscious objective or desire to promote or assist in the commission
       of the offense.


                                                 7
               In her sixth point of error, Lerma contends that the trial court erred in “failing to

instruct the jury that it should apply only a result-of-conduct definition of ‘with intent’ to the

charged offense of burglary with intent to commit robbery.”

               In her seventh point of error, Lerma contends that the trial court erred in “failing

to instruct the jury that it should apply only a result-of-conduct definition of ‘intentionally’ or

‘with intent’ to the offense of robbery.”

               In her eighth and final point of error, Lerma contends that the trial court erred in

“failing to instruct the jury that it should apply only a result-of-conduct definition of ‘knowingly’

or ‘with knowledge’ to the offense of robbery.”

               For the purposes of our analysis, we will assume, without deciding, that these jury

instructions were erroneous in the ways that Lerma describes. Nevertheless, we will reverse the

trial court’s judgment only if we conclude that the court’s errors caused Lerma egregious harm.

See Price, 457 S.W.3d at 440. “In examining the record for egregious harm, we consider the

entire jury charge, the state of the evidence, the closing arguments of the parties, and any other

relevant information in the record.” Arteaga, 521 S.W.3d at 338.


       Entire Jury Charge

               All of the errors about which Lerma complains in her third through eighth points

of error occur in the abstract portion of the jury charge, not in the application paragraph. “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 Vasquez v. State,

389 S.W.3d 361, 367 (Tex. Crim. App. 2012) (noting that the application paragraph is “the heart

and soul of the jury charge”) (internal quotation marks omitted); Isreal v. State, No. 03-17-


                                                  8
00296-CR, 2018 WL 5305502, at *7 (Tex. App.—Austin Oct. 26, 2018, pet. ref’d) (mem. op.,

not designated for publication) (“We presume that the jury followed the instructions given. For

that reason, when the application paragraph of the jury charge correctly instructs the jury on the

law applicable to the case, error in the abstract instruction is not egregious.”) (citations omitted);

Kuhn v. State, 393 S.W.3d 519, 529 (Tex. App.—Austin 2013, pet. ref’d) (collecting cases and

explaining, “In different contexts, Texas courts have repeatedly held that where the application

paragraph of the charge correctly instructs the jury on the law applicable to the case, this

mitigates against a finding that any error in the abstract portion of the charge was egregious.”).

“Generally, reversible error occurs in the giving of an abstract instruction only when the

instruction is an incorrect or misleading statement of a law that the jury must understand in order

to implement the commands of the application paragraph.” Crenshaw v. State, 378 S.W.3d 460,

466 (Tex. Crim. App. 2012).

               However, some of the terms found in the application paragraph rely on definitions

given in the abstract portion. For example, the term “robbery” in the application paragraph is

tied to the definition of robbery in the abstract portion, which includes the mental state of

recklessness. Accordingly, we conclude that the entirety of the charge weighs slightly in favor

of a finding of egregious harm.


       State of the Evidence

               The only truly disputed issue at trial was Lerma’s mens rea—there was no

question that she was present when Alvarado and his companions entered Gonzales’s home. As

discussed above, the State presented strong evidence that Lerma intended to aid Alvarado,

including phone records showing calls between Lerma and Alvarado shortly before the


                                                  9
shootings, a Snapchat conversation in which Lerma demands a television, Lerma’s initial denial

that she went to Gonzales’s home, and Lerma’s admissions during her second police interview

that she knew Alvarado intended to rob Gonzales and that she ran away as soon as Alvarado

entered Gonzales’s home and did not call the police.

               In addition, none of the evidence in the record before us suggests that Alvarado

caused bodily injury with a culpable mental state less than intentionality. Instead, the evidence

shows that Alvarado intended to “beat up” and “rob” Gonzales, that he rushed into Gonzales’s

home, and that he fatally shot both Gonzales and Martinez. Therefore, there was little danger

of the jury returning a guilty verdict despite finding that Alvarado (and, by the law of parties,

Lerma) acted with mere recklessness.

               For these reasons, we conclude that the state of the evidence weighs heavily

against a finding of egregious harm.


       Arguments of Counsel and Other Information in the Record

               During the State’s closing argument, the prosecutor stated that it was the jury’s

role to decide “what weight to give what evidence” and that it must make its decision “based on

the evidence [it] heard in trial.” The prosecutor emphasized that the jury’s “big decision” would

be whether Lerma acted with the intent “to promote or assist the unlawful entry into [Gonzales’s]

home so that a robbery could be accomplished.” The prosecutor also described in detail the

evidence that Lerma intended to assist the burglary. Nothing the prosecutor said exacerbated any

harm the jury charge errors may have caused. For example, the prosecutor never argued that

the jury could find Lerma guilty if it concluded that Alvarado recklessly caused bodily injury

to Gonzales.


                                               10
               During his closing argument, Lerma’s counsel explained intentionality as follows:


       So you’re going to have to find—if you’re going to find Ms. Lerma guilty, you’re
       going to have to find beyond a reasonable doubt that it was her conscious
       objective to assist in this robbery. It wasn’t her conscious objective just to go over
       there and get some marijuana. Regardless of what she knew about the bad blood
       between the parties, was it her—you have to decide beyond a reasonable doubt
       that it was her conscious objective to assist in this robbery and assist by going into
       the house and providing them with a way to get in.


These statements, which Lerma does not complain about on appeal, explained to the jury the

necessary findings concerning intentionality and are consistent with the application paragraph in

the jury charge.

               We are not aware of any other information in the record before us that is relevant

to our harm analysis. Accordingly, we conclude that the arguments of counsel and other relevant

information weigh against a finding of egregious harm.


       Summary of Harm Analysis

               Having concluded that the entirety of the jury charge weighs slightly in favor of

a finding of harm, that the state of the evidence weighs heavily against a finding of harm, and

that the arguments of counsel and other information in the record weigh against a finding of

harm, we hold that the alleged jury charge errors about which Lerma complains did not cause her

egregious harm. Accordingly, we overrule her third through eighth points of error.


                                         CONCLUSION

               We affirm the trial court’s judgment of conviction.




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                                            __________________________________________
                                            Chari L. Kelly, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed on Motion for Rehearing

Filed: March 26, 2020

Do Not Publish




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