








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NOS. PD-1283-12, PD-1582-12, PD-1583-12


ANDRES NAVA and XIOMARA MENDEZ, Appellants

v.


THE STATE OF TEXAS




ON APPELLANTS' PETITIONS FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY



 Keller, P.J., delivered the opinion of the Court in which Meyers, Price,
Keasler and Hervey, JJ., joined.  Cochran, J., joined as to part II.  Cochran, J.,
filed a concurring opinion in which Alcala, J., joined.  Womack and Johnson, JJ.,
concurred.


	Nava and Mendez were each indicted for felony murder and organized criminal activity. 
Nava was sentenced to sixty years and seven years, respectively, on those charges, and Mendez was
sentenced to sixty years and twenty years.  We granted review to determine whether the appellants
suffered egregious harm as a result of an error in the jury instructions on the law of parties and
whether their appeals were prejudiced due to a missing portion of the voir dire record.  Finding
against appellants on both issues, we affirm.  
I. JURY CHARGE - LAW OF PARTIES
A. Background

1. The Incident

 In June 2009, the Houston Police Department conducted undercover sting operations to
identify and arrest individuals who were buying and reselling stolen goods.  In one of these
operations, Sergeant Robert Calderon, posing as someone wanting to sell stolen televisions, made
contact with Mendez.  Officer Henry Canales posed as the person delivering the televisions.  Officer
Canales wore a hidden microphone that recorded and transmitted audio to other officers.  He drove
a Budget rental truck containing over $30,000 worth of televisions and laptops to a Fiesta parking
lot, the meeting place.
	 Mendez arrived at the parking lot in a van with Nava, Robert Carrillo, and a minor female. 
All discussions between Officer Canales and the conspirators took place in Spanish.  Officer Canales
discussed the price of the merchandise with the conspirators, and they eventually agreed to pay
$6,500.  But the conspirators were worried about whether the televisions would function.  Officer
Canales explained that he had no equipment with which to test the televisions but that they were
new, stolen from the trucks that were transporting them.  Eventually, it was agreed that the
conspirators would pay Officer Canales up front, and then Officer Canales would accompany them
to a location where the merchandise could be unloaded and tested.
	After the conspirators paid for the televisions, Officer Canales said, in English, "It's a done
deal."  That phrase was meant to convey that money had exchanged hands, but a second phrase or
act was expected to be the bust signal, which would alert the other officers to descend upon the
conspirators and arrest them.   Carrillo began asking Officer Canales for the key to the Budget truck,
while Officer Canales ignored the request and stalled for time.  Again Officer Canales said in
English, "It's a done deal," and again Carrillo asked about the key.  Officer Canales's cellphone rang,
and he answered, in English, "Go ahead."  This may have been intended as the bust signal, but
Sergeant Calderon did not hear it because he ended the phone call upon seeing Carrillo approach
Officer Canales from behind.  Carrillo approached with a pistol drawn and demanded the key. 
Officer Canales ran to the passenger side of the truck, muttering, "¡Ay buey!"  Nava may have said,
"¡Tírale!"  ("Shoot him!").  Carrillo then said, "¿Traes las llaves?  ¡Dame la feria o te mato, cabrón!"
("Do you have the keys?  Give me the money or I'll kill you, asshole!").  Carrillo then shot Officer
Canales in the back, and Officer Canales shot Carrillo in the chest.  Officer Canales then said, in
English, "It's a done deal.  I'm shot."  Both Officer Canales and Carrillo died from their injuries.
	The remaining conspirators fled in the van.  While Nava drove, Mendez called 9-1-1 because
she thought that they were being pursued by a gang of thieves intent on murder.  While the 9-1-1
operator was attempting to elicit Mendez's cell phone number, the police caught up with and stopped
the van.  As the police were ordering the conspirators to get on the ground, Mendez muttered, "I
think they were undercover."   
2. Jury Charges

  So that the reader may more easily understand how the jury charges were organized and
appellants' complaint about them, we first set out the two statutory theories of party liability at issue
in this case.   The first theory of party liability, the more common "intent to promote or assist"
theory, provides: 
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. (1)

The second theory of party liability, the "conspiracy" theory, provides:

 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. (2)

As shown below, the abstract portion of appellants' jury charges included the exact language above
and correctly instructed the jury on both theories of party liability, as follows:
A person acts intentionally, or with intent, with respect to a result of his conduct
when it is his conscious objective or desire to cause the result.

* * *


All persons are parties to an offense who are guilty of acting together in the
commission of the offense.  A person is criminally responsible as a party to an
offense if the offense is committed by his own conduct, by the conduct of another for
which he is criminally responsible, or by both.

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.  Mere presence alone will not constitute one a party to an offense.

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. 

"Conspiracy" means an agreement between two or more persons with intent that they,
or one or more of them, engage in conduct that would constitute the offense.  An
agreement constituting a conspiracy may be inferred from acts of the parties. (3)

	The application paragraphs contained instructions on the law of parties for the charged
offense of felony murder and for the lesser-included offenses of felony theft and attempted felony
theft.  The felony-murder instructions referred to both the "intent to promote or assist" and
"conspiracy" theories of party liability:    
Now, if you find from the evidence beyond a reasonable doubt that on or about June
23, 2009, in Harris County, Texas, [co-defendant] 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 [co-defendant] and/or Robert Carrillo to commit
the offense; or

If you find from the evidence beyond a reasonable doubt that the defendant,
[defendant], and [co-defendant] and/or Roberto Carrillo entered into an agreement
to commit felony theft, and pursuant to that agreement, if any, they did carry out their
conspiracy and that in Harris County, Texas, on or about June 23, 2009, while in the
course of committing such theft, Roberto Carrillo committed an act clearly dangerous
to human life that caused the death of H. Canales by shooting H. Canales with a
deadly weapon, namely a firearm, and that the murder of H. Canales was committed
in furtherance of the conspiracy and was an offense that the defendant should have
anticipated as a result of the conspiracy, 

then you will find the defendant guilty of murder, as charged in the indictment. (4)

As will be discussed in more detail later, appellants' complaint focuses on the generic references in
these instructions to "the offense" (italicized above).  Their complaint is, in short, that the application
portion of the charge misled the jury as to what offense, exactly, the defendant's intent had to be
directed toward.  The reference to "the offense" is ambiguous, and we will address the effect of this
ambiguity in the analysis portion of our opinion. (5) 
	The lesser-included offense instructions included application paragraphs on liability as the
primary actor and under the "intent to promote or assist" theory of the law of parties.  The felony-theft instruction applying the law of parties provided:
If you find from the evidence beyond a reasonable doubt that on or about June 23,
2009, in Harris County, Texas, [co-defendant] and/or Roberto Carrillo, did then and
there unlawfully, with intent to deprive the owner of property hereinafter described,
and believing said property was stolen by another, appropriate, by acquiring or
otherwise exercising control over said property, to-wit: thirty four televisions and two
computers of the value of at least $20,000 but less than $100,000, which property
was in the custody of a law enforcement agency, namely, the Houston Police
Department, and which property had been explicitly represented by H. Canales, a law
enforcement agent, to [co-defendant] and/or Roberto Carrillo as being stolen, 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 [co-defendant] and/or Roberto Carrillo to commit the offense, (6) then you will find the
defendant guilty of theft of property of the value of at least $20,000 but less than
$100,000.

The law-of-parties application paragraph in the attempted-felony-theft instructions contained similar
language.  No objections were made to any of the jury instructions.
3. Evidence and Argument

	In the opening portion of the State's closing argument, the prosecutor argued correctly the
"intent to promote or assist" theory of party liability as it related to the offense of theft:
A person is criminally responsible for an offense committed by the conduct of another if
acting with the 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.  And just
'cause you're present mere presence alone will not constitute one a party to an offense.  But
what do you think is happening when Ms. Mendez tells Kleypas or what she thought Officer
Canales was or she tells any person out there that's a thief, go out there and steal and I'll buy
everything you have.  I'll be the market for your theft.  Is she acting with the intent that the
crime of theft be committed.  Well, of course she is.  She doesn't benefit unless they're
stealing something.  Does she do something to solicit, encourage or aid the other person to
go out and do the theft?  Well, of course she is.  She's telling you I'll be the market.  I'll be
the fence.  You steal it and I'll fence it for you.  Every time she does that and they go out and
they do something like burglary or theft or whatever and they do it in reliance that she's
going to be the fence they're guilty for what they do.  So is she.  So is anybody else that is
working together with the intent that that crime be committed and they do something to
encourage it to happen.

The prosecutor then discussed the "conspiracy" version of party liability as it related to the offense
of felony murder.	
	Whether Nava said "tírale" was one of the hotly contested issues at trial.  As will be shown,
this fact lends support to a conclusion that the jury would have understood the jury instructions
correctly.  The word appears, and is attributed to Nava, in the incident-recording transcript made by
Glenn Dodson.  The defense proffered an alternate transcript made by Ana Paredes that does not
contain the word.   In listening to the incident recording, including a slowed-down version, we
cannot definitively ascertain whether the word "tírale" was said.  In closing argument, the State
pointed out that Dodson had transcribed and translated other Spanish-language recordings in the case
and the defense viewed Dodson's work as "good enough for everything else."   The evidence shows
that other records translated and transcribed by Dodson included the the 9-1-1 call made by Mendez
and police interviews with Nava and Mendez.  It was the defense that introduced the 9-1-1 call and
relied upon Dodson's translation at trial.
	With respect to the alleged "tírale" remark, the prosecutor argued: "When Nava says shoot
him there is no doubt [on] the first part of the Court's charge.  When you're acting with intent that
the crime be committed and you do something to direct the other person to commit the offense
you're guilty.  He's guity under both parts of the parties charge.  That is as clear as a bell."	One of Mendez's attorneys spent a significant amount of time arguing that "tírale" was not
on the recording.  He claimed that the "State has found this magic word in this transcript" and that
a more qualified and educated expert said that it was not there, that no Spanish-speaking officer had
said it was, and that "it never came out until less than three weeks ago."  But, Mendez's attorney
observed, even if the jury believed that the word was there, "Ms. Mendez didn't say that."  Mendez's
attorney told the jurors that, to find her guilty, they either had to find "that she aided or encouraged
or assisted Carrillo in causing the death of Officer Canales" or they had to find her guilty under the
"conspiracy" theory of the law of parties. (7)
	One of Nava's attorneys also argued that "tírale" was not on the recording and that the jury
should believe the testimony of the qualified defense expert to that effect.  Nava's attorney
acknowledged that, if the jury believed Nava said "tírale," the case was over for him: "That's why
these lawyers want you to think that he said shoot him 'cause then it's over.  If you think he said
shoot him and you're convinced beyond a reasonable doubt that Ms. Paredes has lost her mind or
whatever then find him guilty of murder.  But if you're not convinced beyond a reasonable doubt
then you got to do what the Judge tells you you have to do.  You got to believe that he should have
reasonably anticipated."
	A different prosecutor spoke in the rebuttal argument.  The rebuttal prosecutor argued that
appellants were lying when they denied knowing that Carrillo had brought a gun with him.  The
prosecutor characterized the conspirators as "experienced crooks" and asked whether it made sense
for them to take $6500 with them to meet people they did not know and "not take some protection?" 
He also pointed to evidence that Mendez habitually kept two guns in a linen closet and that a witness
had seen Mendez holding a gun before.
	The rebuttal prosecutor continued the earlier prosecution argument that "tírale" was on the
recording and that Dodson's translation work was reliable:
I didn't make up that word on the tape.  It's been sitting there all along.  It's just that
no one had ever been asked to listen to it as closely as Glenn [Dodson] was.  No one
had ever used the tools and spent the time on it until Glenn did.  And that's why I
hired Glenn because his reputation was stellar, impeccable.  These four [defense]
lawyers over here have nothing bad to say about Glenn.  Some of them have hired
Glenn themselves.  They know the quality of the work he does and they cannot
criticize Glenn.  They offered evidence that he had a huge hand in transcribing all the
other recordings in this case.  The only problem they have is with one line.  One
significant telling line.

Twice during closing argument, the prosecutor played the part of the tape where Dodson's transcript
says "tírale" was uttered, and both times the prosecutor argued that the word was there.  He also
invited the jurors to listen to a slowed-down version of that part during their deliberations.
4. Appeal

	On appeal, appellants argued that the instructions on the "intent to promote or assist" theory
of party liability with respect to felony murder were erroneous because (1) the "intent to promote or
assist" theory is not available for the offense of felony murder, and (2) the instructions given were
ambiguous regarding whether the jury had to find an intent to promote or assist the felony murder
or whether it merely had to find an intent to promote or assist the underlying theft.  The court of
appeals rejected the first claim, holding that the "intent to promote or assist" theory of party liability
could apply to felony murder so long as the State proved an intent to promote or assist the underlying
felony and also proved the intent to promote or assist an act that was unreasonably dangerous to
human life. (8)  However, the court agreed with appellants' second contention that the instructions were
ambiguous because they "may refer solely to felony theft, not felony theft and the act clearly
dangerous to human life." (9)
	Because appellant did not object, the court of appeals addressed whether appellant was
egregiously harmed by the error in the instructions. (10)  The court first observed that the evidence was
overwhelming or clear that appellants and Carrillo were criminally responsible for the underlying
theft, that Carillo committed an act clearly dangerous to human life that caused the death of an
individual, and that the shooting occurred in the course and futherance of the theft. (11)  The court
subsequently explained that the parties fiercely contested whether appellants should have anticipated
the shooting and whether Nava actually said "shoot him." (12)  The court also explained that the
language of the jury instructions was ambiguous: it "seemingly associate[d] accomplice
responsibility with only felony theft" because of how it referred to the various actors, but the generic
reference to "offense" meant that the jury could have construed the instructions to associate criminal
responsibility with "the whole crime at issue, namely felony murder." (13) 
	Given the evidence and the arguments, however, the court of appeals held that it would have
been unreasonable to construe the instruction as imposing responsibility for the murder solely on the
basis of responsibility for the felony theft. (14)  The court could not conclude that the jury "could avoid
resolving the fiercely contested issues regarding appellants' 'anticipation' and whether Nava said
'Shoot him' because of a loophole in the jury charge." (15)  The court held that, while "the erroneous
instruction theoretically affected appellants' main defensive theory, in actuality, it is highly unlikely
the jury convicted appellants of felony murder based solely on their involvement in the theft." (16)
B. Analysis

1. General Principles

 Because appellants did not object to the instructions at issue, they are not entitled to reversal
unless the record shows that they suffered "egregious harm." (17)  This is a difficult standard to meet
and requires a showing that the defendants were deprived of a fair and impartial trial. (18)  The record
must disclose "actual rather than theoretical harm," and the error must have affected the very basis
of the case, deprived the defendant of a valuable right, or vitally affected a defensive theory. (19)  In
determining whether egregious harm is shown, we look at the entire jury charge, the state of the
evidence (including the contested issues and the weight of probative evidence), the arguments of
counsel, and any other relevant information revealed by the record of the trial as a whole. (20)
2. Jury Charge

	We begin with the fact that the abstract instruction on the "intent to promote or assist" theory
of party liability was correct.  It required the State to show that appellants intended to promote or
assist the commission of felony murder before convicting of felony murder under this theory of party
liability. (21)  We disagree with the court of appeals's conclusion that, in a felony-murder prosecution,
the "intent to promote or assist" theory of party liability requires only a showing that the defendants
intended to promote or assist the underlying theft and the unreasonably dangerous act.   The words
"acting with intent to promote or assist the commission of the offense" clearly mean, at a minimum,
that a defendant must act intentionally with respect to the result elements of a result-oriented
offense. (22)  With some offenses, this may mean that State will have to show a greater culpable mental
state for the accomplice than for the primary actor.  Although in some instances this may seem
strange, this interpretation is faithful to the language of both § 7.02(a)(2) and the felony murder
statute.  The State assumes this  higher burden by pursuing an intent-based theory of party liability
for a non-intent crime. (23)  Combining the language of § 7.02(a)(2) with the felony murder statute,
then, requires an intent to promote or assist, not only the commission of the underlying felony and
the unreasonably dangerous act, but also the result of the offense of felony murder--the death of an
individual.  The abstract portion of the "intent to promote or assist" instructions in this case did this. 
It told the jury that, in order to find appellants guilty, it had to find that they intended the victim's
death. 
	We next consider that the corresponding application paragraph was ambiguous.  That
application paragraph depicted a killing occurring in the course of a theft, but it described neither
the theft nor the killing as an "offense" until the paragraph reached the "intent to promote or assist"
language.  At that point, the generic reference to "offense" would most likely be construed as
referring to the offense depicted by the entire paragraph--felony murder--rather than the underlying
theft offense that was only a part the application paragraph.  On the other hand, the "intent to
promote or assist" language referred to both Carrillo and the co-defendant.  Because the jury was
instructed on Carrillo as the shooter, the reference to the co-defendant might imply that the offense
at issue was the one committed directly by both Carrillo and the co-defendant--the theft.  But this
would be only an implication; nothing in the application paragraph expressly told the jury that guilt
of felony murder could be established this way (i.e. with  a defendant's intent being solely to
promote or assist the commission of a theft), and the implication arising from the addition of the co-defendant's name is not a particularly clear one.  The language of the application paragraph did not
clearly direct the jury to deliberate in a way that is inconsistent with the law. (24) 
	 Moreover, it goes against common sense to think that an intent to promote or assist the
commission of felony theft was a sufficient mental state for felony murder under the "intent to
promote or assist" theory of the law of parties when the conspiracy-liability provisions required more
than that.  The "conspiracy" portions of the jury charge required roughly the equivalent of intending
to promote or assist the offense of theft and acting in accordance with such an intent--carrying out
a conspiracy to commit felony theft--but they also required a finding that appellants "should have
anticipated" the murder.  Reading the charge in the erroneous manner that appellants suggest it could
have been read would render the conspiracy portions of the charge superfluous.  If the jurors really
interpreted the charge in the manner suggested by appellants, it would be left to wonder why the
conspiracy portions were in the charge and why the law of conspiracy liability would contain the
extra, unnecessary "anticipation" element.  We may use common sense in assessing how the jury
likely understood the charge, and common sense suggests that the jurors would not have read the
charge in this way. (25) 
	In addition, the jury charge contained lesser-included offenses with associated application
paragraphs that instructed on the "intent to promote or assist" theory of party liability.  If the jurors
understood the instructions as appellants suggest, then the only difference between the charged
felony murder and the lesser-included offenses would be that someone died and Carrillo was the
killer.  Since those two facts were undisputed, the jurors might wonder why they were given the
option to find appellants guilty of the lesser-included offenses.  This is another factor suggesting  that
the jury would not have understood the charge in the manner proposed by appellants.
3. Evidence and Argument

	The prosecutors never argued that appellants could be convicted of felony murder under the
"intent to promote or assist" theory of party liability based solely on an intent to commit the theft. 
The first prosecutor argued the "intent to promote or assist" theory in connection with the theft
offense, but that argument was understandable given that proving liability for the theft was part of
proving liability for felony murder and because theft and attempted theft were submitted lesser-included offenses.
	The centerpiece of the State's argument that Nava was liable under the "intent to promote
or assist" theory of the law of parties was the contention that Nava said "tírale."  The first prosecutor
made this clear when he said, "When Nava says shoot him there is no doubt [on] the first part of the
Court's charge."  Both prosecutors vigorously argued that Nava said "tírale" and that Dodson's
transcription was trustworthy.  The State made an enhanced version of the tape in an effort to show
that.  Nava's attorney argued that the prosecution had to prove that Nava said "tírale" in order to
convict him under the "intent to promote or assist" theory of party liability.  The closing prosecutor
never disputed that assertion.  Instead, he argued even more vigorously than the first prosecutor that
Nava did say "tírale."  Given this discussion, the jury almost certainly would have understood that
the "intent to promote or assist" theory of liability was concerned with whether appellants intended
to promote or assist the murder and not just whether they harbored an intent with respect to the theft. 
Otherwise, the dispute about whether Nava said "tírale" would have been pointless.
	The prosecutors' arguments on conspiracy liability and whether appellants, and Mendez in
particular, should have anticipated the killing were substantial.  These arguments would have been
unnecessary if the State simply had to prove, under the "intent to promote or assist" theory, that
appellants intended the theft and Carrillo killed someone.
	The prosecutors were obviously concerned with appellants' liability for theft because it was
an element of felony murder and also of the organized crime charge.  But large portions of the
prosecutors' arguments would be completely unnecessary if the jury charge were understood in the
manner suggested by appellants.  This fact supports the conclusion that the jury understood the
"intent to promote or assist" instructions in a manner consistent with the law instead of the manner
suggested by appellants.
4. The Factors Combined

	Given the jury charge as a whole, the evidence, and the arguments of the attorneys, we cannot
conclude that the record demonstrates egregious harm.  Although the felony-murder "intent to
promote or assist" application paragraph is ambiguous and, in isolation, could potentially be
understood in the manner appellants suggest, it could also be understood in a manner consistent with
the law.   Construing that paragraph in the manner appellants suggest would render large portions
of the jury charge and the prosecutors' arguments superfluous.  Viewing the charge as a whole,  and
from a common-sense perspective, and in the context of the rest of the trial, we conclude that the jury
most likely understood the application paragraph in question in a manner consistent with the law.
II. JURY SELECTION - MISSING RECORD
A. Background

1. Trial and Abatement Hearing

	This case was tried before Judge Mary Lou Keel.  During voir dire, Judge Keel asked the
venire, "Is there . . . anyone here who thinks that police officers always tell the truth or that all police
officers will tell the truth?"  Prospective juror five answered, "Under oath they do." (26)
	Later, one of the defense attorneys asked whether, if the jury acquitted the defendants of
felony murder but convicted them of the lesser-included offense of theft and the offense of organized
criminal activity, the prospective jurors could consider the minimum range of punishment (two
years) and probation.  None of the prospective jurors were bothered by the minimum range of
punishment, but several, including prospective juror thirty, said they could not consider probation. 
Specifically, prospective juror thirty said, "I wouldn't consider probation at all.  I would not consider
probation at all."  Defense counsel replied, "I can't think of a set of facts within which you would
be able to consider that?"  Prospective juror thirty responded, "No.  If they're breaking in and
stealing why would I put them on the street to do it some more?"
	The court reporter's record of jury selection ends with the notations "(Conclusion of Voir
Dire).  (Jury Seated)."  The appellants filed a motion to abate the case because a portion of the voir-dire record was missing.  The court of appeals abated the case for a hearing to determine (1) whether
without the defendants' fault, significant portions of the record had been lost or destroyed; (2)
whether the portions of the record were necessary to the defendants' appeals; and (3) whether the
missing portions of the record could be replaced by agreement of the parties. 
	It was discovered that, because of a mechanical malfunction, the bench conference at which
for-cause and peremptory challenges were made either was not recorded or could not be retrieved. 
It is undisputed that the failure to transcribe this bench conference was not the defense's fault.
	Rudy Duarte, one of Nava's attorneys, testified that the two defense teams worked together
on the challenges for cause.  Most of the challenges were made by Bob Loper, one of Mendez's
attorneys, but the challenges were adopted by Nava's attorneys.  Consulting his notes, Duarte
recalled that the defendants had challenged prospective juror thirty for cause for being unable to
consider probation and that the challenge was denied.  He could not remember whether other
challenges for cause were made, and he had no notations for other challenges.   He also could not
remember whether any prospective jurors were called up to the bench for additional questioning. 
Duarte further testified that no Batson challenge was made.
	Loper testified that he challenged for cause prospective jurors five, thirty, and forty-nine.  His
notes indicated that he believed that prospective juror five was disqualified on the issue of police
officer testimony, prospective juror thirty was disqualified for not being able to consider the entire
range of punishment, and prospective juror forty-nine was disqualified on the issue of the
presumption of innocence. (27)  All three of these prospective jurors were peremptorily struck by the
defense--a fact confirmed by strike sheets in the clerk's record.  Loper further testified that the
defendants exhausted their peremptory challenges, but he did not specifically remember any defense
lawyer asking for additional peremptory challenges, and he did not specifically remember any
defense lawyer objecting to a juror who actually sat on the jury. 
	Prosecutor Julian Ramirez did not have any notes or recollections about defense challenges
for cause, but he testified that it was Judge Keel's practice to further question prospective jurors who
were challenged for cause.  Prosecutor Jim Leitner testified that he remembered feeling satisfied at
trial that there were not any appellate issues on voir dire in the case.
	During discussions after the testimony at the abatement hearing, Judge Keel and the defense
agreed that the significance of the missing record was that it contained any rulings on defense
challenges for cause, any steps taken to preserve error, and any further conversations with the
prospective jurors.  Judge Keel suggested that prospective jurors might have been rehabilitated while
defense counsel suggested that a prospective juror "might have dug their hole deeper so to speak." 
Upon hearing defense counsel's suggestion, Judge Keel agreed that "we don't know" what took
place with respect to prospective juror questioning.
	Over defense objection, (28) Judge Keel related her recollection of the hearing.  She recalled that
she denied only one defense challenge for cause and that was for prospective juror thirty.  Her denial
was based on the question to the prospective juror being an improper commitment question because
the parties had "inject[ed] a dead body into a theft situation and asked the jury well if you've
acquitted someone of murder and then convicted them of theft could you in an appropriate case
consider probation."  Judge Keel further stated that, despite her denying only one defense challenge
for cause, the defense asked for two additional peremptory challenges.  The judge further recounted
that, when asked why they wanted two additional challenges, the defense attorney "made kind of a
funny answer something like why not or what the heck and that was it."  Judge Keel stated that the
defense "did not go any further to preserve the error" and that she specifically remembered that
because she was surprised by the failure to do so.  "They did not identify somebody on the jury that
they had to live with 'cause I was denying the strike, the additional peremptory strike," the judge
recounted.  The judge did not specifically remember whether she rehabilitated any of the prospective
jurors who were challenged for cause, though that was her typical practice.
	Judge Keel also made written findings of fact.  Most of the findings favor the defendants, but
the fourth finding is adverse: "The record is not necessary to the appeal since it memorialized no
preserved error." 
2. Appeal

	The court of appeals held that the missing portion of the voir-dire record was not necessary
to the resolution of the appeal because the trial judge had testified that the defendants never
identified an objectionable prospective juror that would sit on the jury: 
Appellants first argue the lost portion of the record is necessary to the resolution of
their appeals because they are unable to determine whether the trial court erroneously
denied a challenge for cause.  However, during one of the abatement hearings, the
trial court testified that appellants never identified an objectionable venireman who 
sat on the jury.  The trial court obviously relied on this testimony when making its
findings of fact because the court found the missing portion of the record
memorialized "the failure of appellants to preserve error with respect to rulings on
motions for cause."  Neither appellant complains on appeal that the trial court erred
by relying on its own testimony.  Accordingly, the missing portion of the record is
not necessary to the resolution of this issue because it has not been preserved for
appeal. (29)

The court then responded to the defendants' claim that the missing portion of the record was
necessary to the resolution of a claim that counsel was ineffective for failing preserve error regarding
the challenges for cause. (30)  After discussing our opinions in Kirtley (31) and Routier, (32) the court of
appeals concluded that the findings required to substantiate an ineffective-assistance claim in this
case would require impermissible speculation:
Appellants argue the missing portion of the record may reveal that trial counsel,
without a reasonable trial strategy, failed to identify to the trial court an objectionable
venireman who said something which rendered him challengeable for cause when
individually questioned at the bench and ultimately sat on the jury.  Although
conjecture may have been sufficient in Kirtley, it is not sufficient under Routier. (33)

B. Analysis

1. The Lost Record Rule

 Rule 34.6(f) provides for a new trial under the following conditions: (34) 
(1) if the appellant has timely requested a reporter's record;

(2) if, without the appellant's fault, a significant exhibit or a significant portion of the
court reporter's notes and records has been lost or destroyed or--if the proceedings
were electronically recorded--a significant portion of the recording has been lost or
destroyed or is inaudible;

(3) if the lost, destroyed, or inaudible portion of the reporter's record, or the lost or
destroyed exhibit, is necessary to the appeal's resolution;  and

(4) if the lost, destroyed or inaudible portion of the reporter's record cannot be
replaced by agreement of the parties, or the lost or destroyed exhibit cannot be
replaced either by agreement of the parties or with a copy determined by the trial
court to accurately duplicate with reasonable certainty the original exhibit. (35)

Only the third requirement is at issue in the present case.  Was the missing voir-dire bench
conference necessary to the resolution of appellants' appeals?  
2. Voir Dire Error?

	The court of appeals held that it was not, based on the determination by the trial judge that
the defendants never identified an objectionable person who sat on the jury.  Before harm can be
shown from the denial of a challenge for cause, the defendant must (1) use a peremptory strike
against the prospective juror upon whom the challenge for cause had been made, (2) exhaust his
peremptory strikes, and (3) request an additional peremptory strike to use upon a specifically
identified objectionable prospective juror, who, because the extra strike was denied, actually sits on
the jury. (36)  So, if we accept as true the proposition that the defendants failed to identify an
objectionable prospective juror who would sit on the jury, then no error in denying a challenge for
cause could be a basis for reversing the conviction, so the missing record would not be necessary to
the resolution of the appeal. 
	What makes this case one of first impression is that the finding used to show that the missing
record is not necessary to the appeal's resolution is based upon the trial judge's recollection of the
proceeding for which the record is missing.  May a trial judge rely upon her personal recollection of
something that happened or did not happen in the unrecorded proceeding to establish that a record
of that proceeding is not necessary to the resolution of the appeal? 	 	
	In answering that question, we start with the standard of review for construing court rules. 
We attempt to effectuate the plain language of a rule unless there are important countervailing
considerations. (37)  Unlike the standard for construing statutes articulated in Boykin v. State, (38) the
standard for construing court rules permits the consideration of extratextual factors even if the text
of the rule is not ambiguous and does not lead to absurd results. (39)  Extratextual factors include (but
are not limited to) the object sought to be attained, common law or former provisions, and the
consequences of a particular construction. (40) 
	Rule 34.6(f) has predecessors, (41) but its third requirement--that the lost record be necessary
to the resolution of the appeal--is new. (42)  The text of this portion of the rule does not explicitly
address what matters may be considered in this type of inquiry. (43)  The fourth requirement of the rule 
is that the lost record cannot be replaced by agreement of the parties, or if an exhibit, by agreement
of the parties or by determination by the trial judge. (44)  Within the context of the fourth requirement,
then, a non-exhibit portion of the reporter's record can be replaced only if the parties agree.  But
there is a functional difference between the fourth requirement and the third requirement.  The fourth
requirement addresses whether the missing record can be replaced.  The third requirement is not
concerned with whether the missing record can be replaced but with whether the missing record
needs to be replaced.  If the missing record is determined not to be necessary to the appeal's
resolution, then it does not need to be replaced.   
	The third requirement--that the missing record be necessary to the appeal--was meant to
mitigate against the harshness of a rule that might require a new trial even when no error actually
occurred in the proceedings.  "The provision in the rule that the appellant show that the missing
portion of the record is necessary to her appeal is itself a harm analysis." (45)  When an appellant has
not been harmed by the missing portion of the record, he should not be granted relief.
	It is true that the point of having a record is to not have to rely upon the recollection of the
trial judge or the parties.  But when a trial judge's recollection is clear and shows that the missing
portion of the record would not affect the appeal, the reason for the enactment of the third
requirement becomes apparent.  In assessing a trial judge's recollection, we should view the
circumstances from the appellant's standpoint and resolve any reasonable doubt in his favor. (46)  There
are many situations in which one would not expect a trial judge to be able to recall what happened
with the certainty and precision required to satisfy an appellate court--such as a blow-by-blow
rendition of a witness's testimony or a prospective juror's responses.  But in this case, we are
confronted with a single discrete fact that a trial judge recalled with certainty and precision: whether
the defense identified an objectionable person who actually sat on the jury.  None of the attorneys
contradicted the judge's recollection, and nothing in the record that actually is before us leads us to
doubt that recollection.  At least under these circumstances, (47) we hold that the court of appeals was
correct to credit the trial judge's recollection as it related to the question of whether the missing
record was necessary to the resolution of the appeal.  Accordingly, the court of appeals correctly
determined that, because the defense attorneys did not identify an objectionable person who would
sit on the jury, the defendants had no viable appellate claim with respect to the denial of challenges
for cause. (48)
 3. Ineffective Assistance of Counsel?

	Appellant contends that he might still have had a viable claim of ineffective assistance of
counsel.  For reasons somewhat different than those articulated by the court of appeals, we disagree. 
Ineffective-assistance-of-counsel claims are governed by the familiar Strickland framework: To
prevail, the defendant must show that counsel's performance was deficient and that this deficient
performance prejudiced the defense. (49)  An attorney's performance is deficient if it is not within the
range of competence demanded of attorneys in criminal cases as reflected by prevailing professional
norms, and courts indulge in a strong presumption that counsel's conduct was not deficient. (50)  A
defendant suffers prejudice if there is a reasonable probability that, absent the deficient performance,
the outcome would have been different. (51)  A reasonable probability is a probability sufficient to
undermine confidence in the outcome. (52)  It is a rare case in which the trial record will by itself be
sufficient to demonstrate an ineffective-assistance claim. (53)  If trial counsel has not been afforded the
opportunity to explain the reasons for his conduct, we will not find him to be deficient unless the
challenged conduct was "so outrageous that no competent attorney would have engaged in it." (54)
	As part of an ineffective-assistance claim based upon an attorney's failure to identify an
objectionable juror, a defendant would have to show who the objectionable juror was.  Because this
issue is raised on direct appeal, any such showing would have to have been made in the trial court, (55) 
We have already accepted Judge Keel's statement that the attorneys did not identify an objectionable
juror during the hearing, so we look to the rest of the record.  A review of the rest of the trial record 
we have does not reveal an identified objectionable juror, nor why appellant's attorneys failed to
identify one.  No motion for new trial was filed, so there was no post-trial hearing at which the trial
attorneys could have been questioned about the matter.  There are many reasons why defense counsel
might have refrained from identifying an objectionable juror.  It could be that the defense attorneys
were completely satisfied with the jurors who were selected.  Or it could be that the prospective
jurors immediately after the jurors that were selected were worse from the defense perspective. (56)  Or
it could be that counsel performed deficiently.  The record is, of course, silent on this matter. 
Appellants are in the same position as anyone else whose claim on appeal is that their attorney was
ineffective for failing to identify an objectionable juror.  In such cases, the trial record will not
usually be sufficient to support an ineffective assistance claim.  Such is the case here.  Appellants
fail to show deficient performance.
 III. DISPOSITION

 We affirm the judgment of the court of appeals.
Delivered: December 18, 2013
Publish 
1.   Tex. Penal Code § 7.02(a)(2).  This case presents the unusual scenario in which the
"intent to promote or assist" theory of party liability is alleged in conjunction with felony murder,
an offense which lacks a culpable mental state with respect to causing death.  However, nothing
in the Penal Code prohibits the State from using the law of parties in this fashion.  See Mendez v.
State, 575 S.W.2d 36, 38 (Tex. Crim. App. 1979) (distinguishing prior case involving attempted
involuntary manslaughter because, while a single individual cannot specifically intend a reckless
act, one individual can intend to assist another in committing a reckless act).  
2.   Tex. Penal Code § 7.02(b).
3.   The order in which these instructions were presented varies slightly between Mendez and
Nava's cases.  The instructions are outlined in the order presented in Mendez's case.  The
instructions for both defendants also provided that a person commits the offense of "murder" if "he
commits or attempts to commit a felony other than manslaughter, and in the course of and in the
furtherance of the commission or attempt, or in immediate flight from the commission or attempt,
he commits or attempts to commit an act clearly dangerous to human life that causes the death of an
individual."
4.   Emphasis added.  "Defendant" and "co-defendant" refer to Nava and Mendez, or vice
versa, depending upon whose case it is. 
5.   This part of the jury charge would have been unambiguously correct if it had read as
follows (changes from actual charge italicized):

. . . defendant . . . with the intent to promote or assist the commission of the offense
of murder, if any, solicited, encouraged, directed, aided or attempted to aid [co-defendant] and/or Robert Carrillo to commit the offense of murder . . . . 
6.   Nava's jury charge adds at this point the phrase "if he did."
7.   Italics added.
8.   Nava, 379 S.W.3d at 414-16.
9.   Id. at 417 (emphasis in original).
10.   Id. See also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (when
defendant fails to object to erroneous jury instruction, reversal warranted only if defendant suffered
"egregious harm").
11.   Nava, 379 S.W.3d at 418.
12.   Id. at 419.
13.   Id.
14.   Id.
15.   Id.
16.   Id. (emphasis in original).
17.   Vega v. State, 394 S.W.3d 514, 521 (Tex. Crim. App. 2013).
18.   Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
19.   Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
20.   Vega, 394 S.W.3d at 521. 
21.   See Gelinas v. State, 398 S.W.3d 703, 708 (Tex. Crim. App. 2013) (plurality op.) (proper
recitation of the law in the abstract portion of the charge minimized the error in the application
paragraph); Vasquez v. State, 389 S.W.3d 361, 371-72 (Tex. Crim. App. 2012) (correctness of the
abstract portion of the charge showed, in combination with other factors, that any error in the
application paragraph was harmless).  
22.   Kelly v. State, 669 S.W.2d 720, 725 n.7 (Tex. Crim. App. 1984) (quoting portion of
jury charge giving abstract instruction on the "intent to promote or assist" version of the law of
parties and concluding, "In order to convict appellant then, the jury had to find that he solicited,
encouraged, or directed another to kill Pryor, or that he aided or attempted to aid another in the
killing of Pryor AND that he did so with the specific intent to promote or assist in the killing of
Pryor") (capitalization and italics in original).  See also Tucker v. State, 771 S.W.2d 523, 530
(Tex. Crim. App. 1988) ("before the accused may be found criminally responsible for the
conduct of another who 'intentionally commits the murder,' under the provisions of V.T.C.A.
Penal Code, § 7.02(a) (2), it must be shown the accused harbored a specific 'intent to promote or
assist the commission of' the intentional murder the other committed. [citations omitted]  One
could hardly indulge an intent to promote or assist in the commission of an intentional murder
without, at a minimum, intending or contemplating that lethal force would be used"); Webb v.
State, 760 S.W.2d 263, 268-69 (Tex. Crim. App. 1988) (same); Tex. Penal Code § 6.03(a)
(defining intent with respect to the nature of a defendant's conduct or the result of his conduct).  
	In Flanagan v. State, 675 S.W.2d 734, 740-41 (Tex. Crim. App. 1982), we concluded that
similar language in the attempt statute required the actor to possess intent with respect to the
result even if the object crime did not itself require intent with respect to the result:

We initially note that § 15.01 plainly requires that a person act "with specific
intent to commit an offense." (emphasis added)  Baldwin attempts to construe that
language to mean that a person may be convicted of an attempted offense when he
acts "with the same intent required by the attempted offense."   If that were the
language of the statute, then it would follow that the intent necessary to support a
conviction for attempted murder could be the same as that required by §
19.02(a)(2)--the intent to cause serious bodily injury.  The statute, however, is
not so worded.  Indeed, § 15.01 defines the elements of criminal attempt in
traditional terms.  The element "with specific intent to commit an offense" has
traditionally been interpreted to mean that the actor must have the intent to bring
about the desired result, which in the case of attempted murder is the death of the
individual.  Thus, a specific intent to kill is a necessary element of attempted
murder.  The authorities in support of this interpretation are numerous and
convincing.   

Id. at 741 (emphasis in Flanagan). 
23.   We have at least implicitly recognized that an accomplice can possess a greater
culpable mental state than the principal.  See Ex parte Thompson, 179 S.W.3d 549, 553 & n.9
(Tex. Crim. App. 2005) (stating, "It is well-established that one accomplice may be found guilty
of a different, more serious offense than other accomplices," and citing cases for the proposition
that an accomplice can be liable for a more serious offense than the principal); id. at 554 (stating,
"What matters under Section 7.02(a) is the criminal mens rea of each accomplice; each may be
convicted of only those crimes for which he had the requisite mental state," and quoting
Professor LaFave for the proposition that "it is equally possible that the killer is guilty only of
manslaughter because of his heat of passion but that the accomplice, aiding in a state of cool
blood, is guilty of murder").
	Moreover, if the legislature had wished to require proof that the accomplice possessed
only the culpable mental state required by the crime itself, it could have said so, as it did in §
7.02(a)(1).  See Tex. Penal Code § 7.02(a)(1) ("acting with the kind of culpability required for
the offense, he causes or aids an innocent or nonresponsible person to engage in conduct
prohibited by the definition of the offense").
24.   See Mireles v. State, 901 S.W.2d 458, 460-61 (Tex. Crim. App. 1995) (quoting and
discussing Boyde v. California, 494 U.S. 370 (1990), for the proposition that, when a jury instruction
is arguably ambiguous, the reviewing court should use "common sense" in its analysis in
determining if there is a "reasonable likelihood" that the jury was misled by the ambiguity).  See also
Gelinas, 398 S.W.3d at 708 (that "clear error" existed in the application paragraph was a factor that
weighed in favor of harm).  A majority of the Court in Gelinas held that an error's obviousness to
a jury can mitigate against its harmfulness.  Id. at 709 (plurality op.), 712 (Cochran, J., concurring). 
Whether an instruction clearly directs a jury in error and whether it is obvious that the instruction
is in error are two different things.  An instruction may clearly give the jury the wrong law, but it
may not be clear to a layperson that the instruction is wrong.   Or, as in Gelinas, the instruction may
clearly give the wrong law and also be obviously wrong to a layperson.  In the present case, the
instruction does not even clearly give the jury the wrong law.     
25.   Id. at 709-10 (plurality op.) (common sense), 712 (Cochran, J., concurring) (remarking
about the obviousness of the error).
26.   When defense counsel later asked whether any of the members of the venire had friends
or relatives who work in law enforcement, prospective juror five answered: "I've worked for 6 years
in Colorado at the sheriff's office.  I also have my father-in-law and my brother-in-law are police
officers in Casper, Wyoming and Chicago."
27.   Loper was asked about prospective juror forty, who had a friend with the FBI, but, based
on his notes, Loper "probably did not think" that prospective juror forty was challengeable for cause. 
28.   The State requested that the trial judge "render her recollections" about the case "by either
saying so or by way of Bill."  The defense acknowledged that it could not stop the trial judge from
"making a Bill" but  objected "to the Court putting its recollection as testimony."  This objection
appears to relate to an earlier objection that, based on caselaw, defense counsel believed that the trial
judge could use her recollection to correct an existing record but not to supplement a missing record.
29.   Nava v. State, 379 S.W.3d 396, 412 (Tex. App.-Houston [14th Dist.] 2012).
30.   Id. at 412-13.
31.   Kirtley v. State, 56 S.W.3d 48 (Tex. Crim. App. 2001).
32.   Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003).
33.   Nava, 379 S.W.3d at 413 (emphasis in original).
34.   Tex. R. App. P. 34.6(f).
35.   Id.
36.   Davis v. State, 313 S.W.3d 317, 343 (Tex. Crim. App. 2010).  We have sometimes
characterized these requirements as involving the preservation of error, see e.g. Allen v. State,
108 S.W.3d 281, 282 (Tex. Crim. App. 2003), but that characterization has fallen out of favor,
and we generally say that these requirements are a predicate for showing harm. Johnson v. State,
43 S.W.3d 1, 5 n.6 (Tex. Crim. App. 2001) ("In the past we have confused preservation of error
and harm issues within the context of an erroneous denial of a challenge for cause," and the listed
requirements are a predicate for showing harm).  See also Hernandez v. State, 390 S.W.3d 310,
316 (Tex. Crim. App. 2012) ("[b]efore harm can be shown . . . ."); Davis, 313 S.W.3d at 343. 
We agree with the court of appeals that Judge Keel's written finding that the defendants failed to
preserve error was clearly referring to her statement that the defendants never identified an
objectionable prospective juror who sat on the jury.
37.   McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012).
38.   818 S.W.2d 782 (Tex. Crim. App. 1991).
39.   McQuarrie, 380 S.W.3d at 150; White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App.
2001).
40.   See Ex parte Rieck, 144 S.W.3d 510, 512 (Tex. Crim. App. 2004).
41.   Routier, 112 S.W.3d at 570.
42.   See Gomez v. State, 962 S.W.2d 572, 574 (Tex. Crim. App. 1998) (quoting from former
Rule 50(e), which does not contain the requirement that the missing record be necessary to the
resolution of the appeal).
43.   See R. 34.6(f)(3).
44.   R. 34.6(f)(4).
45.   Routier, 112 S.W.3d at 571.
46.   See id. at 570.
47.   We do not address whether we would have credited the trial judge's recollection if a
defense attorney had testified to recalling that he did identify an objectionable juror.
48.   Judge Keel's recollection that the defense challenged only prospective juror 30 for cause
might independently show that the missing record was not necessary to the resolution of the appeal. 
It would do so if Judge Keel were correct that the question of prospective juror 30 concerning
probation for lesser offenses did not give rise to a challenge for cause because the question contained
the extraneous fact that someone had died during the course of the offense.  See Standefer v. State,
59 S.W.3d 177, 181-83 (Tex. Crim. App. 2001).  But even if the question gave rise to a challenge
for cause, we have held that the failure to allow a question about a punishment issue is harmless if
events at trial cause the issue to be inapplicable to the defendant's case so that the jury had no
occasion to deliberate on the  issue.  See Taylor v. State, 109 S.W.3d 443, 452-53 (Tex. Crim. App.
2003) (citing cases and holding that failure to allow questioning designed to discover jurors who
could not consider minimum punishment for unenhanced offense was harmless when defendant
pleaded true to enhancement paragraph).  Although the offense of murder appears to have been
eligible for jury-ordered probation at the time the offenses in this case were committed, the law was
amended to prohibit jury-ordered probation before the appellants' trial began, and no savings clause
appears in the amending act.  See Acts 2009, 81st Leg., ch. 87, § 6.004 and passim, eff. Sept. 1, 2009. 
Regardless, the defense question required the jury to assume that the defendants were acquitted of
murder, a contingency that did not occur.  Also, arguably, the jury had no occasion to deliberate
about probation in Mendez's case because it assessed sentences greater than ten years, the maximum
for which probation was available.  See Tex. Code Crim. Proc. art. 42.12 § 4(d)(1).  However, one
of the defense attorneys testified that he also challenged jurors 5 and 49 for cause, and the issue on
which juror 5 would have been challenged relates to the guilt phase of trial.  Due to our disposition
above, we need not decide whether it would have been proper to credit Judge Keel's controverted
recollection about who was challenged for cause.
49.   Strickland v. Washington, 466 U.S. 668, 687 (1984).
50.   Id. at 689.
51.   Id. at 694.
52.   Id.
53.   Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
54.   Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).
55.   See Davis v. State, 227 S.W.3d 733, 737 (Tex. Crim. App. 2007)(Trial court was
correct in declining to take judicial notice of defendant's exhibits because trial court had no
opportunity to consider records and because documents "are not part of the appellate record.").
56.   See State v. Morales, 253 S.W.3d 686,  697-98 (Tex. Crim. App. 2008).  
