AFFIRMED; Opinion Filed May 21, 2015.




                                                 S
                                     Court of Appeals
                                                        In The


                              Fifth District of Texas at Dallas
                                             No. 05-13-01072-CR

                                     EXZAYVIA COSBY, Appellant
                                                V.
                                    THE STATE OF TEXAS, Appellee

                           On Appeal from the 291st Judicial District Court
                                        Dallas County, Texas
                                Trial Court Cause No. F12-01027-U

                                   MEMORANDUM OPINION
                                 Before Justices Myers, Evans, and O'Neill 1
                                         Opinion by Justice Evans
          A jury convicted appellant Exzayvia Cosby of murder and sentenced him to thirty-five

years’ confinement. He brings three issues on appeal and argues the following: (1) the evidence

is legally insufficient to convict appellant of murder; (2) a rational trier of fact could not have

found appellant guilty of murder; and (3) the trial court erred by improperly charging the jury on

the culpable mental state required for a murder conviction. Deciding appellant’s issues against

him, we affirm the trial court’s judgment.




   1
       The Hon. Michael J. O'Neill, Justice, Assigned
                                            I. BACKGROUND

       On the evening of July 11, 2011, Tommy Booth spent the night at Jeffrey West’s house.

Orin Staples asked West to meet him outside for a smoke. West, Staples, and Booth met outside

of West’s home.

       Friends saw appellant leave for the incident. That same evening Anthony Alexander,

Darrielle White, and Shatela Harris went to Staples’s house to pick up appellant and go back to

Alexander’s house. Jamichael Young and appellant were leaving Staples’s house as the group

arrived.    White testified that Young and appellant were both dressed in dark clothes.

Specifically, Young had a black bandana across his face and appellant had a mask on his head

that was not pulled down to cover his face. Harris also confirmed that they were wearing dark

clothes. White testified that she saw appellant pull the mask down over his face as he left and

that it had holes for his eyes and mouth.

       West saw the incident begin. West testified that around 3 a.m. a man dressed all in black

approached the group with a handgun. The man was African-American, tall, very skinny and

wore black skinny jeans, black shoes, a long black crewneck sweater, black gloves and a black

ski mask. West saw the man with the gun approach Booth, point the gun at him and tell him to

lay down. West testified that he took off running when Booth and the man with the gun began

struggling over the gun.

       Two neighbors heard the shots and saw the aftermath. One neighbor—John Wash—

testified that he heard about four “pops” around 2:50 a.m. in the morning. Wash got up, looked

out his bathroom window and saw one man lying on the ground and one man standing over him.

Wash testified that he saw the standing man hitting the other man with what appeared to be a

pistol before running away. Wash called 9-1-1 before going outside to check on the victim.

Gregory Sneed—another neighbor—testified that he was awakened by gunshots around 2 or 3

                                                 –2–
a.m. Sneed ran to his window and saw a man standing over another man. Sneed testified the

standing man appeared to be wearing all black and was either hitting or going through the

pockets of the man lying on the ground. Sneed ran outside and identified the man lying on the

ground as Booth.

       Friends heard the shots and appellant’s statements afterwards. After he ran, West also

heard gunshots. West spoke with Staples on his cell phone and went back to find Booth dead.

White testified that she too heard gunshots and then a minute later Young came running into

Staples’s house followed by appellant. Both Harris and Alexander testified that Young ran back

into Staples’s house and said “he shot him.”      Harris stated that Young seemed panicked and

shaky and that Young was referring to appellant. According to White, appellant had a gun in his

hand and a bottle of pills when he returned. Harris testified that she asked appellant what had

happened and he stated “I shot him.” Harris further testified that she asked why he shot him, and

appellant responded “because he tried to reach for the gun.” White also testified that appellant

stated “I shot him.” Alexander testified that appellant said he pointed the gun at the victim to rob

him and appellant pulled the trigger when the victim reached for the gun. Harris testified that

appellant said he and Young had planned to rob Booth.            White specifically testified that

“[appellant] said that he went over there basically to rob him and that he told him to give him

everything he had in his pockets, and then the man reached for the gun and he shot him.” White

also stated that appellant told her that he gotten the pills and money from the man.   Harris stated

that appellant told her he got $6 and a bottle of pills from the man. Harris saw the bottle of pills

but not the $6.

       Acquaintances heard appellant’s additional statements. After these events, White, Harris,

Alexander and appellant left Staples’s house and went to Alexander’s house. Dervan McGowen

testified that he was at his cousin Alexander’s house when he overheard appellant say “I shot

                                                –3–
him.” McGowen also testified that appellant said something along the lines of “I went to go do

this lick and it didn’t go down right” and “I had to shoot him.”

       West identified appellant.      The night of the shooting West told the police that the

assailant sounded like appellant. West said he had known appellant for over a decade and that the

man dressed in black sounded like appellant. Detective Phil Hardin—the lead investigator of the

Booth homicide for the Dallas police department—testified that the witnesses described the

suspect as a six foot tall or more, very skinny man wearing all black, gloves and ski mask.

Harding testified appellant matched this physical description.

       Alexander provided and then recanted appellant’s alibi.        Alexander testified that he

initially provided appellant with an alibi when he spoke with the police because of his friendship

with appellant. Alexander testified that his mother found out what had happened and his parents

were outraged that Alexander had lied to the police. Alexander testified that went back to the

police station with his parents, Harris, and White and told them the truth. He testified that he did

not want to testify against appellant in court.

         Appellant admitted to involvement. Harding interviewed appellant twice and at the end

of the second interview, appellant admitted that he planned to rob Booth and went down there

dressed in all black, black gloves and black ski mask. Harding also testified that appellant told

him that he did not complete the robbery because someone else got to Booth first.

       Dr. Jill Urban, a medical examiner and forensic pathologist, testified that she performed

Booth’s autopsy. Dr. Urban testified that she identified four gunshot wounds in Booth and one

or two of those gunshots likely occurred while Booth was lying on the ground. Dr. Urban

testified that Booth’s cause of death was the gunshot wounds.

       The jury found the appellant guilty and assessed a punishment of thirty-five years’

confinement. Appellant then filed a notice of appeal.

                                                  –4–
                                          II. ANALYSIS

       A. Sufficiency of the Evidence

       In his second and third issues, appellant contends the evidence is insufficient to support a

finding of guilt for the offense of murder. When an appellant challenges the sufficiency of the

evidence to support a conviction, we review all the evidence in the light most favorable to the

verdict to determine whether any rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012). Evidence is sufficient if “the inferences necessary to establish guilt are reasonable based

upon the cumulative force of all the evidence when considered in the light most favorable to the

verdict.” Id. If the evidence is conflicting, we “‘presume that the factfinder resolved the

conflicts in favor of the prosecution’ and defer to that determination.” Id. (quoting Jackson v.

Virginia, 443 U.S. 307, 326 (1979)).

       A person commits the offense of murder if such person “intentionally or knowingly

causes the death of an individual” or “intends to cause serious bodily injury and commits an act

clearly dangerous to human life that causes the death of an individual.” TEX. PENAL CODE ANN.

§ 19.02(b)(1)-(2) (West 2011).      Appellant argues that the State failed to present sufficient

evidence at trial to convict him of murder. We disagree.

       West physically described the suspect as a tall, very skinny African-American male

wearing black skinny jeans, black shoes, a long black crewneck sweater, black gloves and a

black ski mask. Sneed also testified that the suspect was wearing black clothing. Harding

testified that, based on the information from witnesses, the physical description of the suspect

was a six foot tall or more, very skinny man wearing all black, gloves and ski mask. Both White

and Harris testified that appellant left Staples’s house wearing dark clothing. White testified that

appellant pulled a mask down over his face as he left.       Harding also testified that appellant

                                                –5–
admitted during his interview that he planned to rob Booth and went down there dressed in all

black, black gloves and black ski mask.

       West, who saw the suspect approach Booth and point a gun at him, testified that he saw

the two men struggle over a gun. West testified he had known appellant for over a decade and

that the man dressed in black sounded like appellant. Three separate witnesses—either friends or

acquaintances of appellant—testified that they saw appellant leave, heard the gunshots, and saw

appellant return and admit to the shooting. Appellant told these same witnesses that he shot the

man because he reached for the gun. A fourth witness overheard appellant say “I shot him” and

“I had to shoot him.” Finally, Dr. Urban testified that Booth died from the gunshot wounds.

       When considered in the light most favorable to the verdict, these facts were sufficient to

demonstrate that appellant either (1) intentionally or knowingly caused the death of Booth or (2)

intended to cause serious bodily injury and committed an act clearly dangerous to human life that

caused Booth’s death. As the facts support a conviction of murder, we overrule appellant’s

second and third points of error.

       B. Charge Error Regarding Intent and Knowing

       In his first issue, appellant argues that the trial court erred by including incorrect

definitions of “intentionally” and “knowingly” in the jury charge. At trial, appellant did not

object to the jury charge, but on appeal he argues that he was egregiously harmed by error in the

charge. We disagree.

       When we review claims of jury charge errors, we first decide whether there was error in

the charge. Ferguson v. State, 335 S.W.3d 676, 684 (Tex. App.—Houston [14th Dist.] 2011, no

pet.). If there was error and appellant objected to the error at trial, then only “some harm” is

necessary to reverse the trial court’s judgment. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g). If, however, the appellant failed to object at trial—as in this

                                              –6–
case—then the appellant will obtain a reversal “only if the error is so egregious and created such

harm that he ‘has not had a fair and impartial trial’—in short ‘egregious harm.’” Id. Egregious

harm is the type and degree of harm that affects the very basis of the case, deprives the defendant

of a valuable right, or vitally affects a defense theory. Allen v. State, 253 S.W.3d 260, 264 (Tex.

Crim. App. 2008). In making an egregious harm determination, “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 relevant

information [revealed] by the record of the trial as a whole.” Trejo v. State, 280 S.W.3d 258, 261

(Tex. Crim. App. 2009) (quoting Almanza, 686 S.W.2d at 171). Egregious harm is a difficult

standard to meet and must be determined on a case-by-case basis. See Ellison v. State, 86

S.W.3d 226, 227 (Tex. Crim. App. 2002).

       In this case, the jury charge clearly charges appellant with the offense of murder. The

abstract portion of the charge then references the following definitions:

       A person commits the offense of MURDER if he intentionally or knowingly
       causes the death of an individual or intends to cause serious bodily injury and
       commits an act clearly dangerous to human life that causes the death of an
       individual.

       A person acts “intentionally,” or with intent, with respect to the nature of his
       conduct or to a result of his conduct when it is his conscious objective or desire to
       engage in the conduct or cause the result.

       A person acts knowingly, or with knowledge, with respect to a result of his
       conduct when he is aware that his conduct is reasonably certain to cause the
       result.

(emphasis added). The appellant argues that a jury cannot convict a defendant based solely on a

finding that he intentionally engaged in conduct that happened to cause death. Accordingly, it




                                                –7–
appears that appellant argues that he was harmed by inclusion of the italicized language above in

the definition of “intentionally.” 2

        The application section of the jury charge, however, does not make any reference to

intentional conduct that “happened to cause death.” Instead, the application paragraph allows for

a guilty verdict only by intentional conduct:

        Now bearing in mind the foregoing instructions, if you believe from the evidence
        beyond a reasonable doubt that, on or about July 12th, 2011, in Dallas County,
        Texas, the defendant did unlawfully then and there intentionally and knowingly
        cause the death of Tommie Booth, an individual, by shooting said Tommie Booth
        with a firearm, a deadly weapon,

                                                      OR

        unlawfully did then and there intend to cause serious bodily injury to Tommie
        Booth and did then and there commit and [sic] act clearly dangerous to human
        life, to wit: shooting said Tommie Booth with a firearm, a deadly weapon, and
        did then and thereby cause the death of Tommie Booth, and [sic] individual, you
        will find the defendant guilty of Murder.

It is the application paragraph which applies the pertinent penal law, abstract definitions, and

general legal principles to the particular facts and the indictment allegations. See Vasquez v.

State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). “‘It is the application paragraph of the

charge, not the abstract portion, that authorizes a conviction.’” Yzaguirre v. State, 394 S.W.3d

526, 530 (Tex. Crim. App. 2013) (quoting Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim.

App. 2012)). The application paragraph “explains to the jury, in concrete terms, how to apply

the law to the facts of the case.” Id. Accordingly, we should look to the application paragraph to

determine whether the jury was correctly instructed in order to resolve a harm analysis. Id.

“Where the application paragraph correctly instructs the jury, an error in the abstract instruction

    2
       Appellant objects to a definition of “knowingly” that does not appear in the jury charge. The definition of
“knowingly” which appears in the jury charge does not include the following sentence which appellant included in
his brief: “A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to the
circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances
exist.”


                                                      –8–
is not egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). With these

principles in mind, we will proceed to conduct a harm analysis using the Almanza factors. 3 See

Dougherty v. State, PD-1411-05, 2006 WL 475802, at *1 (Tex. Crim. App. March 1, 2006) (per

curiam) (not designated for publication) (reversing appellate court that did not conduct analysis

using all Almanza factors).

          The first Almanza factor requires consideration of the entire jury charge. See Almanza,

686 S.W.2d at 171. Here, the application paragraph of the jury charge clearly provides that any

conviction of appellant required a finding of a specific intent to commit the offense of murder.

Accordingly, the charge as a whole does not weigh in favor of egregious harm. See Medina, 7

S.W.3d at 640.

          The second Almanza factor involves the state of the evidence, including the contested

issues and weight of the probative evidence. See Almanza, 686 S.W.2d at 171. As analyzed

above, we determined that the facts were sufficient for the jury to have convicted appellant of

murder. As such, the state of the evidence does not favor a finding of egregious harm.

          The third Almanza factor involves the argument of counsel. See Almanza, 686 S.W.2d at

171. In its closing argument, the State noted that an intentional or knowing killing constitutes

murder. The State argued that the medical evidence supported the conclusion that the appellant

shot Booth while Booth was on the ground. Thus, the State argued as follows: “Isn’t that

[shooting at Booth on the ground] reasonably certain to cause the result of death? When he

engaged in the conduct, conduct that reasonably certain to cause the result, that is a knowing

killing. That is murder.” The State did not, however, argue that a murder conviction could result

from the appellant intentionally engaging in conduct that happened to cause death. Thus, the

argument of counsel does not favor a finding of egregious harm.

   3
       Although appellant mentions the Almanza factors, there is no application of the factors to a harm analysis.


                                                         –9–
       The final Almanza factor addresses any other relevant information revealed by the record

of the trial as a whole. See Almanza, 686 S.W.2d at 171. We are not aware of “any other

relevant information” that we should consider.

       Thus, in light of the Almanza factors, we are unable to conclude that appellant suffered

egregious harm from the definition of “intentionally” in the abstract section of the jury charge.

Accordingly, we overrule appellant’s first issue.

                                        III. CONCLUSION

       We resolve appellant’s issues against him and affirm the trial court’s judgment.



                                                           / DAVID EVANS/
                                                           DAVID EVANS
                                                           JUSTICE


Do Not Publish
TEX. R. APP. P. 47
131072F.U05




                                               –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

EXZAYVIA COSBY, Appellant                             On Appeal from the 291st Judicial District
                                                      Court, Dallas County, Texas
No. 05-13-01072-CR        V.                          Trial Court Cause No. F12-01027-U.
                                                      Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                          Justices Myers and O'Neill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of May, 2015.




                                               –11–
