                                NUMBER 13-10-00163-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

DESREL RAY LINDEN,                                                                     Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                      Appellee.


                    On appeal from the Criminal District Court
                          of Jefferson County, Texas.


                            MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides
       Appellant, Desrel Ray Linden, was convicted by a jury of murder, a

second-degree felony, 1 and sentenced to fifteen years‘ confinement in the Texas

Department of Criminal Justice—Institutional Division.              See TEX. PENAL CODE ANN.

       1
          The charge was lowered to a second-degree felony upon the jury‘s determination that the
offense was committed ―under the immediate influence of sudden passion arising from an adequate cause.‖
See TEX. PENAL CODE ANN. § 19.02(c), (d) (West 2003).
§ 19.02(b)(1) (West 2003), § 12.32 (West Supp. 2010).                          By five issues, Linden

contends that the trial court erred by (1) failing to properly instruct the jury on his

affirmative defense of self-defense; (2) giving improper definitions in the jury charge for

the mental state required for the indicted offense; and that (3)-(5) the evidence was

legally and factually insufficient to support the verdict. We affirm.

                                            I. BACKGROUND2

        On May 17, 2007, Linden and his friend, Curley Sinegal, Jr., were traveling

between landscape maintenance jobs when Linden stopped his truck for gas in Port

Arthur, Texas.      At the same time, Peter Tran and his niece, Phuong Tran, pulled up to

an adjacent gas pump in Phuong‘s car. The testimony conflicted as to what was said

between the two parties:          Phuong testified that Linden asked her if she ―wanted to go

home with him‖ and that Linden was confrontational with Peter, asking him ―What are

you looking at?‖ and making derogatory comments about Peter‘s mother; Sinegal and

Linden testified that no such comments were made to Phuong or to Peter.                         At this time,

Linden and Peter began to yell at one another. When Peter and Phuong began to leave

the gas station, Peter threw light bulbs at Linden‘s truck. Phuong made a u-turn out of

the gas station, and Peter then yelled further obscenities at Linden and Sinegal.

Phuong dropped Peter off at another vehicle belonging to Peter‘s girlfriend that was

parked across the street.              Phuong was not further involved in the encounter.

According to defense testimony, Peter began to follow Linden and Sinegal down the

street, and when Peter rolled down his window, he continued to yell and made


        2
           This case is before this Court on transfer from the Court of Appeals for the Ninth Judicial District
in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN.
§ 73.001 (West 2005).
                                                      2
movements as though he was pulling a weapon from between his driver‘s seat and car

door. In response, Linden drew a gun and fired four shots at Peter, emptying his gun;

one shot hit Peter in the back of the head and a second shot hit Peter in the neck. Peter

crashed his vehicle and died from his injuries.    Linden remained at the scene, called

911, and told the responding detective what had transpired.         No gun was found in

Peter‘s vehicle, but a tire iron was found between the driver‘s seat and door.

                                      II. DISCUSSION

A.   Sufficiency of the Evidence

       By his third, fourth and fifth issues, Linden contends that the evidence was legally

and factually insufficient to support the verdict.     Specifically, he contends that the

evidence was insufficient to support findings that he acted ―intentionally‖ or ―knowingly‖

in causing the death of Peter Tran.

       1.   Standard of Review

       The Texas Court of Criminal Appeals has held that our only sufficiency review

should be under ―a rigorous and proper application‖ of the Jackson standard of review,

and therefore, we apply only that standard as argued in Linden‘s legal sufficiency

arguments.    See Brooks v. State, 323 S.W.3d 893, 906 (Tex. Crim. App. 2010). Under

this standard, ―the relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.‖       Jackson v. Virginia, 443 U.S. 307,

319 (1979); see Brooks, 323 S.W.3d at 902 n.19.      ―[T]he fact-finder‘s role as weigher of

the evidence is preserved through a legal conclusion that upon judicial review all of the

evidence is to be considered in the light most favorable to the prosecution.‖     Jackson,

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443 U.S. at 319 (emphasis in original); see TEX. CODE CRIM. PROC. ANN. art. 38.04 (West

1979) (―The jury, in all cases, is the exclusive judge of facts proved, and the weight to be

given to the testimony . . . .‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App.

2000) (―The jury is the exclusive judge of the credibility of witnesses and of the weight to

be given testimony, and it is also the exclusive province of the jury to reconcile conflicts

in the evidence.‖).

       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge.   Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997).   Under a hypothetically correct jury charge, the State was required to prove

beyond a reasonable doubt that Linden:       (1) intentionally or knowingly (2) caused the

death of Peter Tran. See TEX. PENAL CODE ANN. § 19.02(b)(1).

       A defendant‘s intent may be inferred from his words, acts, and conduct.      Patrick

v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). ―Intent and knowledge are fact

questions for the jury, and are almost always proven through evidence of the

circumstances surrounding the crime.‖      Manrique v. State, 994 S.W.2d 640, 649 (Tex.

Crim. App. 1999) (Meyers, J., concurring) (citing Robles v. State, 664 S.W.2d 91, 94

(Tex. Crim. App. 1984)).

       2.   Analysis

       In this case, Linden did not deny emptying his gun by firing four shots at Peter.

Additionally, the jury heard testimony about the trajectory of the bullets and that the back

glass of Peter‘s vehicle was shot out. The State contended that because the bullets hit

Peter in the back of the head and neck, this was an indication that Linden had either

begun firing before he was even next to Peter or that he continued to fire after Peter was

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driving away.   The jury also heard testimony that Peter did not have a gun.        Based on

this evidence and the jury‘s ability to infer a defendant‘s intent from his words, acts, and

conduct, we conclude that, when viewed in the light most favorable to the prosecution, a

rational trier of fact could have found beyond a reasonable doubt that Linden acted with

the intent to kill Peter.   See Jackson, 443 U.S. at 319; Patrick, 906 S.W.2d at 487.

Having so concluded, we need not address Linden‘s separate issue concerning the legal

sufficiency of evidence supporting a finding that he ―knowingly‖ killed Peter.       See TEX.

PENAL CODE ANN. § 19.02(b)(1) (requiring that a jury must find that a defendant

intentionally or knowingly caused the death of an individual); see also TEX. R. APP. P.

47.1.   Accordingly, we overrule Linden‘s third, fourth, and fifth issues.

B. Jury Charge

        By his first and second issues, Linden contends that the trial court committed

reversible error by:   (1) failing to include an instruction on self-defense in the application

portion of the jury charge; and (2) giving incorrect definitions for the required culpable

mental state for the crime for which he was indicted.

        1. Standard of Review

        ―Our first duty in analyzing a jury-charge issue is to decide whether error exists.

Then, if we find error, we analyze that error for harm.‖     Ngo v. State, 175 S.W.3d 738,

743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.

App. 2003)). The degree of harm required to reverse the trial court‘s judgment depends

on whether or not the appellant objected to the charge before it was given to the jury.

Id.   Under Almanza v. State, if the defendant has properly objected to the charge, we

need only find ―some harm‖ to reverse the trial court‘s judgment. Id. at 743–44 (citing

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Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‘g)).          If the

defendant fails to object, however, or states that he has no objection to the charge, ―we

will not reverse for jury-charge error unless the record shows ‗egregious harm‘ to the

defendant.‖   Id.   In determining whether egregious harm exists, we examine the

charge in its entirety, the state of the evidence, the argument of counsel, and any other

relevant information in the record.   Id.

       2.   The Self-Defense Instruction

       At his trial, Linden argued that he shot Peter in self-defense. The jury charge, in

a separate ―Self-defense Charge,‖ included a full and comprehensive explanation of the

affirmative defense of self-defense and instructed the jury that if the requirements of a

valid self-defense claim were met, or ―if [the jury has] a reasonable doubt thereof, [it]

should find the defendant not guilty.‖ However, on the following page, the paragraph

titled ―Charge‖ does not make the self-defense instruction explicit nor does it apply the

self-defense instruction to the facts of Linden‘s case.   Instead, it stated simply:

                Now, if you believe from the evidence beyond a reasonable doubt
       that . . . Linden intentionally or knowingly caused the death of Peter
       Tran . . . you shall find the defendant guilty of the offense of [m]urder as
       alleged in the indictment.

               Unless you so find, or if you have a reasonable doubt thereof, you
       shall find the defendant NOT GUILTY.

       By his first issue, Linden argues that this ―allowed the jury to find that appellant

engaged in the actions made the basis of the prosecution, and then convict him of the

charged offense, without requiring the jury to find that the state had disproved

self[-]defense beyond a reasonable doubt.‖ The Texas Court of Criminal Appeals has

held that ―the failure to apply the law of self-defense to the facts of the case and to

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instruct the jury to acquit if they held a reasonable doubt on self-defense was error.‖

Barrera v. State, 982 S.W.2d 415, 415 (Tex. Crim. App. 1998).        Here, the jury charge

did not apply the self-defense law to the facts adduced at the trial, and therefore, we

conclude that the jury charge contained error.    See id; see also TEX. PENAL CODE ANN.

§ 2.03(d) (West 2003) (―If the issue of the existence of a defense is submitted to the jury,

the court shall charge that a reasonable doubt on the issue requires that the defendant

be acquitted.‖).

       However, because Linden did not object to the error, he must demonstrate

egregious harm.      See Almanza, 686 S.W.2d at 171; Barrera, 982 S.W.2d at 417.

Under nearly identical facts, we have previously held that the failure to include

self-defense in the application paragraph did not cause egregious harm where the

appellant relied on self-defense as a defensive theory at trial, it was urged in closing

arguments, and a separate instruction on self-defense was given that gave the jury

instructions on how to properly apply the defense.      Barrera v. State, 10 S.W.3d 743,

745 (Tex. App.—Corpus Christi 2000, no pet.).          Just as in that case, a separate

instruction was given in this case, and in closing argument, Linden‘s counsel not only

argued at length that the jury should find Linden not guilty based on the self-defense

instruction, but he actually re-read nearly the entire instruction to the jury.    Linden‘s

counsel concluded, ―[w]e have the right under our law and under this law to defend

ourselves. . . .    [Linden] didn‘t have a retreat.       He reacted.      He reacted in

self-defense.‖     Just as we concluded in Barrera, ―[t]here is nothing in the record

indicating the jury was misinformed or uninformed on the law of self-defense.‖           Id.

Considering the jury was given a general instruction on the law of self-defense—and

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specifically told that it should find Linden not guilty if it believed or had a reasonable

doubt as to whether or not he acted in self-defense—and considering that Linden‘s

counsel discussed self-defense in his argument before the jury, we conclude the trial

court's error in the jury charge did not cause egregious harm to Linden.        See id.; see

also Ngo, 175 S.W.3d at 743–44. Accordingly, we overrule Linden‘s first issue.

       3.   Culpable Mental State

       By his second issue, Linden contends that the trial court erred by giving improper

definitions for ―intentionally‖ and ―knowingly‖ in the jury charge as they pertain to the

offense for which he was indicted. Specifically, Linden contends that the definitions in

the jury charge included language that would allow him to be convicted because he

intentionally or knowingly engaged in the conduct that caused Peter Tran‘s death, rather

than the fact that he intentionally or knowingly caused Peter Tran‘s death.              This

distinction is described in terms of ―result of conduct‖ offenses and ―nature of conduct‖

offenses. We agree that the court committed error in defining these terms.

       Murder is a result of conduct offense, meaning that the applicable mental state is

only that related to the result of the conduct—i.e., intentionally killing—not the conduct

that ultimately causes the result—i.e., intentionally firing the gun.    See Cook v. State,

884 S.W.2d 485, 490 (Tex. Crim. App. 1994). It is error to include the definition relevant

to a nature of conduct offense in a jury charge when the appropriate definition would only

include language pertaining to the result of conduct.        See Schroeder v. State, 123

S.W.3d 398, 400 (Tex. Crim. App. 2003). Here, the trial court clearly erred by giving

over-inclusive definitions for ―intentionally‖ and ―knowingly‖ in the jury charge.   See id.

       However, here again, Linden must demonstrate egregious harm because he

                                              8
failed to object to the jury charge.   See Almanza, 686 S.W.2d at 171. In analogous

situations, both the First and Fifth District Courts of Appeals have addressed this issue

as it pertained to aggravated assault cases—also a result of conduct offense.     Green v.

State, 891 S.W.2d 289, 293 (Tex. App.—Houston [1st Dist.] 1994, pet. ref‘d); Sneed v.

State, 803 S.W.2d 833, 834–35 (Tex. App.—Dallas 1991, pet. ref‘d).              Each court

concluded that the definitions were erroneous, but because the factors outlined by the

Texas Court of Criminal Appeals in Bailey were unique to each case, the courts differed

on whether there was egregious harm that prevented the respective defendants from

receiving a fair trial.   Green, 891 S.W.2d at 295; Sneed, 803 S.W.2d at 836–37; see

Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993) (noting that the court must

consider the following factors:   the charge in its entirety, the state of the evidence, the

argument of counsel, and any other relevant information in the record in order to

determine if egregious harm existed). In determining if egregious harm existed in this

case, we look to these same factors.    See Bailey, 867 S.W.2d at 43.

       First, the charge itself mitigated any possible harm to the defendant by giving the

proper definition of intentionally and knowingly in the application paragraph. In the

portion of the charge where the jury is actually called upon to make a determination, the

charge allows the jury to find Linden guilty only if he ―intentionally or knowingly caused

the death of Peter Tran‖ and makes no mention of conduct whatsoever.                See id.

Second, as we noted in Part A, supra, the evidence in this case was clearly sufficient to

find that Linden intended the result of his conduct.        See id.   Third, neither party

mentioned the erroneous instruction in argument to the jury nor argued that the jury

should find Linden guilty based solely on his conduct; and moreover, although Linden

                                             9
admitted to the shooting, he made no argument that he did not intend to kill Peter, only

that he acted in self-defense (in fact, he continuously argued that deadly force was

justified).   See id.   And fourth, Linden points to no specific evidence in the record that

would tend to make this error egregious.           See id. Therefore, after considering the

Bailey factors, we conclude that the trial court‘s error was not so egregious that Linden

was denied a fair trial.        See id.; Green, 891 S.W.2d at 295 (concluding that

overwhelming evidence and defense counsel‘s arguments to the jury in closing argument

were sufficient to render erroneous definitions of ―intentionally‖ and ―knowingly‖ not

egregiously harmful). Linden‘s second issue is overruled.

                                       III. CONCLUSION

        Having overruled all of Linden‘s issues on appeal, we affirm the trial court‘s

judgment.


                                                           ________________________
                                                           GINA M. BENAVIDES,
                                                           Justice

Publish.
TEX. R. APP. P.47.2(b).

Delivered and filed the
7th day of July, 2011.




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