AFFIRM; and Opinion Filed August 6, 2015.




                                          Court of Appeals
                                                          S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-14-00830-CR

                                       JOSE ANGEL GONZALEZ, Appellant
                                                     V.
                                         THE STATE OF TEXAS, Appellee

                                On Appeal from the 380th Judicial District Court
                                             Collin County, Texas
                                     Trial Court Cause No. 380-81581-08

                                         MEMORANDUM OPINION
                                      Before Justices Fillmore, Myers, and Evans
                                             Opinion by Justice Fillmore
          A jury convicted Jose Angel Gonzalez of capital murder, and the trial court assessed

punishment of life imprisonment without the possibility of parole. 1 Gonzalez’s sole complaint

on appeal is that he was egregiously harmed by the trial court’s failure to limit the applicable

conduct elements in the definition of “knowingly” in the jury charge. We affirm the trial court’s

judgment.

                                                            Background

          Jessica Castaneda testified she met Gonzalez at the Wendy’s restaurant where they both

worked. She started dating Gonzalez in February 2007, and began living with him in March

2007. Castaneda’s three daughters, Ad.C., D.C., and A.C. lived with the couple. In February

     1
        The judgment of conviction was signed on October 3, 2008. Based upon the record, the trial court determined Gonzalez’s trial counsel
failed to timely file a notice of appeal. See Ex parte Gonzalez, No. WR-81226-01, 2014 WL 2003091, at *1 (Tex. Crim. App. May 14, 2014)
(per curiam) (not designated for publication). The court of criminal appeals found Gonzalez was entitled to file an out-of-time appeal. Id.
2007, Ad.C. was four years old, D.C. was three years old, and A.C. was two months old.

Castaneda became pregnant with Gonzalez’s child in March 2007.

         Gonzalez was scheduled to work on July 8, 2007, but called in sick. According to

Castaneda, she and Gonzalez argued about his failing to go to work, why he had called in sick,

and her estranged husband’s failure to provide enough support for the children. Castaneda was

also scheduled to work that day, but had difficulty finding an acceptable babysitter. After their

supervisor requested that Gonzalez watch the children, he “reluctantly” agreed to do so.

Castaneda testified Gonzalez “did not seem very happy” about having to watch the children.

According to Castaneda, A.C. was looking around, smiling, laughing, and playing during the day

and was fine when Castaneda left for work at approximately 4:45 p.m.

         Reuben Sanchez met Gonzalez in 2004 or 2005.         Sanchez testified he did not see

Gonzalez very often but, on July 4, 2007, Gonzalez, Castaneda, and A.C. came by his house.

Sanchez was thinking of leaving his wife, and he discussed with Gonzalez the possibility of

temporarily living with Gonzalez and Castaneda. Gonzalez called Sanchez on July 8, 2007, told

Sanchez he was not going to work, and asked Sanchez to come to his apartment. Sanchez and

his brother arrived at Gonzalez’s apartment at approximately 6:30 p.m. Gonzalez’s mother and

brother were at the apartment when Sanchez arrived, but left approximately forty-five minutes

later.

         Gonzalez showed Sanchez the second bedroom in the apartment, which was being used

by Ad.C. and D.C. The bedroom window had been covered by a sheet attached to the window

frame with screws. There was also a lock on the outside of the bedroom door. Gonzalez told

Sanchez the door and window were secured to ensure the girls would not get out of the room.

         Sanchez, his brother, and Gonzalez sat in the living room, talking, watching TV, and

drinking beer. Ad.C. and D.C. were in their bedroom, and A.C. was in the master bedroom.

                                              –2–
Sanchez testified that Castaneda and Gonzalez were arguing on the phone, and Gonzalez seemed

angry. Gonzalez complained that Castaneda “kept bothering him” and wanted him to go work.

Gonzalez also mentioned that he went to the children’s father’s place of employment and the two

men had a “face-off.” To Sanchez, it appeared that Gonzalez felt the children were a burden.

       At approximately 8:30 p.m., Sanchez’s brother indicated he needed to go home.

According to Sanchez, his brother had been with him the entire time at the apartment and had not

had any access to A.C. at that time. Because the toilet in the hall bathroom was clogged, both

Sanchez and his brother used the restroom in the master bedroom before they left. Sanchez

testified he did not see A.C., but heard her while he was using the restroom. The restroom door

made a creaking sound when he opened it, and A.C. cried briefly.

       Sanchez took his brother home, went by Wendy’s to get some food and a plunger from

Castaneda, and returned to Gonzalez’s apartment. Gonzalez gave some food to Ad.C. and D.C.,

and they went back into their bedroom to eat. The two men were unable to unclog the toilet in

the hall bathroom and returned to the living room to eat their food. After eating, the two men

talked a while and then went out onto the patio to smoke a cigarette.

       Gonzalez’s phone rang, and he went inside. Around 11:00 or 11:30 p.m., Sanchez called

his brother to ask whether he could borrow some money for beer and gas. Sanchez needed to

leave Gonzalez’s apartment soon because he could not buy beer after 12:00 a.m. Sanchez called

out Gonzalez’s name, and Gonzalez opened the door to the master bedroom just wide enough to

squeeze out, shut the door behind him, and stood by the door. As Sanchez left, he asked

Gonzalez if he was going to lock the front door. Gonzalez remained standing by the door to the

master bedroom and said to leave the front door unlocked. Sanchez went to his brother’s house

and then to a store to purchase beer.




                                               –3–
       After buying the beer, Sanchez returned to Gonzalez’s apartment and knocked on the

door. When there was no answer, he opened it and saw Gonzalez walking quickly from the

direction of the master bedroom. The two men went into the living room and talked for a little

while. Then Gonzalez began having an argument with someone on the phone and went back into

the master bedroom. When Gonzalez came back into the living room he said something in

Spanish to Sanchez that translates into, “I fucked up.” Sanchez thought Gonzalez had made

Castaneda angry.

       Esteban Villarreal testified that Gonzalez called him at 12:22 a.m. on July 9, 2007, and

asked him for a ride. Villarreal did not know where Gonzalez wanted to go. Villarreal told

Gonzalez that he had drunk a couple of beers and could not go out. Gonzalez sounded agitated

and told Villarreal there had been an accident.

       The log of calls made from Gonzalez’s cell phone indicates he called Wendy’s at 1:02:15

a.m. Sanchez testified Gonzalez began talking “pretty loud” on the phone. Sanchez had planned

to spend the night at the apartment, but decided he did not want to be there when Castaneda

came home. Sanchez called his wife at 1:04 a.m. to see if she or his children were hungry.

Sanchez tried to get Gonzalez’s attention, but Gonzalez was still talking on the phone and would

not look at him. Sanchez left the apartment, bought some food at Whataburger, and went home.

The receipt from Whataburger shows Sanchez purchased the food at 1:17 a.m. The phone log

from Gonzalez’s cell phone shows he called Sanchez at 1:19:43 a.m., 1:19:46 a.m., 1:55:39 a.m.,

1:56:08 a.m., 1:56:19 a.m., and 1:56:49 a.m. Sanchez remembered Gonzalez calling him twice

during that time period but, because he was eating, he did not answer the calls.

       Castaneda testified Gonzalez called her again at approximately 2:30 a.m., a time verified

by the log of Gonzalez’s cell phone calls. Gonzalez sounded a little agitated and asked what

time she would be home. She told him it would be a little longer because they were running late.

                                                  –4–
Gonzalez asked Castaneda to bring him a salad. Gonzalez did not tell Castaneda that anything

was wrong with A.C.

       Gonzalez called 911 at 2:43:57 a.m. and reported that A.C. was not breathing and her

head and feet were cold. Castaneda came home shortly thereafter and saw Gonzalez in the

master bedroom on his knees. Gonzalez was saying, “where are you” and “I’ve been calling for

an hour.” Castaneda looked down and saw that A.C. was very pale and was not breathing.

A.C.’s eyes were “blank” and rolling toward the back of her head and the side of her head was

swollen. Gonzalez threw his cell phone against the wall, and then called 911 again on the “house

phone.” As Castaneda began to perform CPR on A.C., the police and the paramedics arrived.

A.C. was immediately taken to the hospital.

       Gonzalez spoke with multiple police officers after A.C. was taken to the hospital and

after he was arrested. Although the details of what occurred, such as the order of events and

what caused Gonzalez to check on A.C. differed in these accounts, Gonzalez indicated he

checked on A.C. and discovered her diaper was wet. He removed her from the crib and placed

her on the floor. A.C.’s eyes rolled back into her head, she began to turn purple, and he

determined she was not breathing. He then called 911. Gonzalez denied hurting A.C. There

was testimony from various officers that Gonzalez did not ask about A.C.’s condition, seemed

detached from all the children, specifically stated he was not the biological father of the children,

and was critical of Ad.C’s and D.C’s behavior. There was also evidence there were no toys in

Ad.C. and D.C.’s bedroom and that, although the rest of the apartment was clean, that bedroom

was dirty and reeked of urine.

       Dr. Richard Honaker testified he was working in the emergency room at Medical Center

of Plano (MCP) when A.C. was admitted at 3:11 a.m. A.C. had no vital signs at that point and

had to be resuscitated. Both sides of A.C.’s head were very swollen, soft, and mushy. A CAT

                                                –5–
scan showed A.C. had complex fractures on both sides of her skull. Based on the fractures,

Honaker believed A.C. would have exhibited symptoms such as unconsciousness, vomiting, and

not eating or drinking immediately following the injury. In Honaker’s opinion, A.C.’s injuries

were caused by a major force delivered to her skull, were not caused by an accident, and were

inflicted within two to four hours of her arrival at the hospital. Because MCP does not have a

neonatal intensive care unit, A.C. was transferred to Children’s Medical Center Dallas

(Children’s) after she was stabilized.

        Dr. Matthew Cox, a child abuse pediatrician, examined A.C. at Children’s. A.C. was

comatose and not breathing on her own. A.C. had severe skull fractures, swelling of her brain,

bruising to her eyelids, and a broken right arm. The fractures of A.C.’s skull involved three

different areas of her head, the left and right parietal bones and the occipital bone in the back of

her head. Further, the fractures crossed two suture lines, or the division between the bones, a

feature only seen with the most severe blows to the head. Typically a fracture caused by a blow

to one side of the head will stop when it reaches the suture line because the force is dissipated by

the suture line.

        According to Cox, because the occipital bone is the thickest skull bone and is protected

somewhat by the muscular tissue in the neck, it is the hardest bone to break. It is not the kind of

bone that fractures from a simple fall. However, the most severe of A.C.’s fractures involved the

back of her head. There were multiple fracture lines in the occipital bone and some of those

fractures extended into the left and right parietal bones. There were also complicated fractures in

both parietal bones. In Cox’s opinion, A.C. had among the most severe skull fractures he had

ever seen. To cause this degree of injury, there must have been repeated impacts by A.C.’s head

to a hard surface.




                                                –6–
        Based on the severity of A.C.’s head injuries, Cox believed she exhibited symptoms

within minutes to a few hours after the trauma. The symptoms could start with vomiting,

lethargy, or irritability, but would quickly progress to a coma. In Cox’s opinion, A.C. would

have acted differently immediately after the event, and he believed her injuries happened within

two or three hours of being admitted to MCP.

        A.C. died after she was removed from life support. According to Dr. Keith Pinckard, the

medical examiner who performed the autopsy, A.C. had the most severe inflicted head trauma he

had ever seen. In his opinion, there were four blunt force injuries to A.C.’s head and A.C. died

from those injuries.

         Gonzalez testified that, on July 8, 2007, he woke up around noon because A.C. was

crying. According to Gonzalez, it was not a “normal cry.” Gonzalez bought some beer and

began drinking. He decided to call in sick to work because he was drinking. Castaneda was

scheduled to work and “the decision was made” that Gonzalez would watch the children.

Gonzalez admitted he was not “really happy about it.”

        Sanchez and his brother came to the apartment about 6:15 p.m. According to Gonzalez,

Sanchez and his brother each had a twenty-four ounce beer in his hand, and Sanchez’s brother

had a case of twenty-four ounce beers. Sanchez and Gonzalez discussed Sanchez moving into

the apartment. Gonzalez gave A.C. a bottle at approximately 8:00 p.m., and A.C. was awake

and fine at that time.

        At some point, Sanchez took his brother home and returned with some clothes and

hygiene items. Sanchez also had food from Wendy’s for the children and a six-pack of twenty-

four ounce beers. Sanchez later left to borrow money from his brother and bought more beer.

According to Gonzalez, Sanchez returned to the apartment shortly after 12:00 a.m. The men

watched television for a little while and then went out onto the patio. Gonzalez testified that

                                               –7–
Sanchez was arguing with his wife through phone calls and text messages. Gonzalez admitted he

had been arguing with Castaneda earlier, but claimed they had resolved the conflict. He testified

he told Sanchez, in Spanish, that “I fucked up,” because he had made Castaneda angry and

possibly affected her blood pressure and her pregnancy.

       At approximately 12:30 a.m., the men ran out of beer, and Gonzalez called Villarreal.

Gonzalez told Villarreal there had been an accident because he thought that was the only way to

convince Villarreal to come to the apartment with more beer. Gonzalez testified it was just a

coincidence that he fabricated a story about an accident on the same night that something

happened to A.C.

       According to Gonzalez, Sanchez used the restroom in the master bedroom many times

during the evening. At one point, Sanchez went into the bedroom for a “long period of time.”

The two men then ate some food and went outside to smoke a cigarette. Gonzalez went into the

master bedroom to use the restroom and, when he came out, Sanchez and all his belongings were

gone. Gonzalez tried to call Sanchez a number of times to ask why he left.

       Gonzalez called Castaneda at 2:30 a.m. to find out when she would be home and to ask

her to bring some food. He then took the television into the bedroom because he wanted

Sanchez to have some privacy if he came back. Gonzalez had not “really” checked on A.C.

since 8:00 p.m. Gonzalez testified he was watching television when he heard A.C. make a

sound. Gonzalez checked on A.C. and saw she was “just looking up.” Gonzalez said, “where’s

the baby, where’s the baby,” but A.C. did not respond. A.C.’s diaper was wet, so he took her out

of the crib, placed her on the floor, and removed the wet diaper. Gonzalez went into the closet to

get a clean diaper. He heard A.C. make the “same noise” and then her eyes started rolling back

into her head. A.C.’s face began turning purple, and Gonzalez determined she was not breathing.

He then called 911. Gonzalez denied he caused A.C.’s injuries.

                                               –8–
          Gonzalez claimed that, at trial, he recalled more details of what happened than he had

recalled when questioned by the police after A.C. was taken to the hospital and after he was

arrested. Gonzalez did not see Sanchez hurt A.C. but, because of the way Sanchez left the

apartment, thought he must have done so. Gonzalez admitted he wrote letters while he was in

jail suggesting that either Castaneda or Ad.C. and D.C. could have hurt A.C.

          The jury convicted Gonzalez of capital murder. Because the State did not seek the death

penalty, the trial court assessed punishment of life imprisonment without the possibility of

parole.

                                              Discussion

          In his sole issue on appeal, Gonzalez asserts the trial court included an erroneous

definition of “knowingly” in the jury charge. Gonzalez did not object in the trial court to the

charge submitted to the jury.

                                         Standard of Review

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

State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If error exists, we must determine whether

the error caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex.

Crim. App. 2005). When, as in this case, the error was not objected to, the error must be

“fundamental” and requires reversal only if it was “so egregious and created such harm that the

defendant was deprived of a fair and impartial trial.” Villarreal v. State, 453 S.W.3d 429, 433

(Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g)). Egregious harm exists when the record shows that a defendant has suffered

actual, rather than merely theoretical, harm from jury-charge error. Nava v. State, 415 S.W.3d

289, 298 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 174. Egregious harm consists of

error affecting the very basis of the case, depriving the defendant of a valuable right, or vitally

                                                 –9–
affecting a defensive theory. Villarreal, 453 S.W.3d at 433. “Egregious harm is a ‘high and

difficult standard’ to meet, and such a determination must be ‘borne out by the trial record.’” Id.

(quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). We assess harm in light

of “(1) the entirety of the jury charge, (2) the state of the evidence, including the contested issues

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

information revealed by the trial record as a whole.” Id. (citing Almanza, 686 S.W.2d at 171).

                                                                 Analysis

          Gonzalez argues capital murder is a result-of-conduct offense and, as such, the trial court

erred by failing to limit the definition of “knowingly” in the jury charge to the applicable conduct

element.        Gonzalez asserts he was egregiously harmed by the error because the definition

“expanded the theory” upon which he could be convicted.

          The trial court instructed the jury that a person commits murder if he intentionally or

knowingly causes the death of an individual and commits capital murder if he murders an

individual under six years of age. 2 The trial court further instructed the jury that:

          A person acts intentionally, or with intent, with respect to the result of his conduct
          when it is his conscious objective or desire to cause the result.

          A person acts knowingly, or with knowledge, with respect to circumstances
          surrounding his conduct when he is aware of the nature of his conduct or that the
          circumstances exist. 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.

          “Section 6.03 of the Texas Penal Code sets out: four culpable mental states–intentionally,

knowingly, recklessly, and criminally negligently; two possible conduct elements–nature of the



     2
       At the time the offense was committed, section 19.03 of the penal code provided that a person committed capital murder if he committed
murder, as defined by section 19.02(a)(1) of the penal code, and the person murdered an individual under six years of age. Act of May 28, 1993,
73d Leg., R.S., ch. 887, § 1(a)(7), 2003 Tex. Gen. Laws 3529, 3529. In 2011, section 19.03 of the penal code was amended to provide that a
person commits capital murder if he commits murder as defined by section 19.02(b)(1) of the penal code, and the person murders an individual
under ten years of age. See Act of May 28, 2011, 82d Leg., R.S., ch. 1209, § 1(a)(8), 2011 Tex. Gen. Laws 3235, 3236 (codified at TEX. PENAL
CODE ANN. § 19.03(a)(1)(8)).



                                                                   –10–
conduct and result of the conduct; and the effect of the circumstances surrounding the conduct.”

Price, 457 S.W.3d at 441; see also TEX. PENAL CODE ANN. § 6.03 (West 2011).                                             The gravamen

of the offense is utilized to determine which conduct elements should be included in the culpable

mental-state language of the jury charge. Price, 457 S.W.3d at 441. If the gravamen of the

offense is the result of conduct, the jury charge definitions of culpable mental states should be

tailored to the result of conduct. Id. A trial court errs by failing to limit the definitions of the

culpable mental states to the conduct element or elements of the offense to which they apply. Id.

          Capital murder may contain both result of conduct and nature of conduct elements,

depending on the underlying conduct which elevates the murder to capital murder. Huffman v.

State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008); Hughes v. State, 897 S.W.2d 285, 295 (Tex.

Crim. App. 1994); see also Ex parte Castillo, No. PD-0545-14, 2015 WL 3486960 at *5 n.14

(Tex. Crim. App. June 3, 2015). In this case, the offense was elevated to capital murder based on

the age of the victim and is only a result-of-conduct offense. See Louis v. State, 393 S.W.3d 246,

251 (Tex. Crim. App. 2012) (capital murder based on murder of two-year-old child was result-

of-conduct offense); see also Fleming v. State, 455 S.W.3d 577, 582 (Tex. Crim. App. 2014),

cert. denied, 135 S. Ct. 1159 (2015) (capital murder statute does not contain a mens rea as to age

of victim); Black v. State, 26 S.W.3d 895, 897–98 (Tex. Crim. App. 2000) (per curiam). 3

Accordingly, the trial court erred by failing to limit the statutory definition of “knowingly” to the

result of Gonzalez’s conduct. See Price, 457 S.W.3d at 441; Hughes, 897 S.W.2d at 295.

          In considering whether Gonzalez was egregiously harmed by the error, we first consider

the entire jury charge. See Almanza, 686 S.W.2d at 171. “In assessing harm resulting from the

inclusion of improper conduct elements in the definitions of culpable mental states, we ‘may

consider the degree, if any, to which the culpable mental states were limited by the application

   3
       See also Velez v. State, No. AP-76051, 2012 WL 2130890, at *27 (Tex. Crim. App. June 13, 2012) (not designated for publication).



                                                                   –11–
portions of the jury charge.’” Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995)

(quoting Hughes, 897 S.W.2d at 296); see also Johnson v. State, 416 S.W.3d 602, 612 (Tex.

App.—Houston [14th Dist.] 2013, no pet.). Here, the application paragraph of the jury charge

read:

           Now, if you find from the evidence beyond a reasonable doubt that on or about
           the 9th day of July, 2007, in Collin County, Texas, the defendant, JOSE ANGEL
           GONZALEZ, did then and there intentionally or knowingly cause the death of
           [A.C.], an individual younger than six years of age, by causing the head of [A.C.]
           to strike against a floor, a crib, or an object unknown to the Grand Jury, then you
           will find the defendant guilty of the offense of Capital Murder as charged in the
           indictment.

           Unless you so find from the evidence beyond a reasonable doubt, or if you have a
           reasonable doubt thereof, that the defendant is guilty of Capital Murder as
           charged in the indictment, you will acquit the defendant of Capital Murder as
           charged in the indictment.

           The application portion of the charge instructed the jury that in order to convict Gonzalez

of capital murder, it was required to find beyond a reasonable doubt that Gonzalez intentionally

or knowingly caused A.C.’s death. See Patrick, 906 S.W.2d at 492.4 The application paragraphs

are the “heart and soul” of the jury charge. See Vasquez v. State, 389 S.W.3d 361, 367 (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)).                                                        “Where the

application paragraph correctly instructs the jury, an error in the abstract instruction is not




     4
        In Patrick, a capital-murder case, the court of criminal appeals concluded that, although the trial court erred by failing to limit the
definitions of “intentionally” and “knowingly” to the appropriate conduct element,

     [r]eferring back to the definitions of culpable mental states, it is obvious that the “result of conduct” and cause the result
     language are the applicable portions of the full code definitions. We conclude that because the facts, as applied to the law in the
     application paragraph, pointed the jury to the appropriate portion of the definitions, no harm resulted from the court’s failure to
     limit the definitions of the culpable mental states to proving the conduct element of the underlying offense.

Patrick, 906 S.W.2d at 493 (citations omitted).



                                                                     –12–
egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see also Crenshaw,

378 S.W.3d at 466.5

          In the absence of contrary evidence, we presume the jury followed the trial court’s

instructions in the application paragraphs of the charge. See Williams v. State, 937 S.W.2d 479,

490 (Tex. Crim. App. 1996) (“[W]e assume that the jury would follow the instruction as given,

and we will not reverse in the absence of evidence that the jury was actually confused by the

charge.”).       Nothing in the charge in the case emphasized the inapplicable portion of the

definition of “knowingly” that Gonzalez complains about, and the application paragraph properly

placed the culpable mental states. See Patrick, 906 S.W.2d at 492; Hughes, 897 S.W.2d at 295;

Johnson, 416 S.W.3d at 612–13; Delgado v. State, 944 S.W.2d 497, 499 (Tex. App.—Houston

[14th Dist.] 1997, pet. ref’d) (“Significantly, the ‘nature of conduct’ language used in the court's

definition paragraphs was not repeated in the application paragraphs. We hold that this

instruction appropriately limited the overbroad language used in the court’s definitions, and

pointed the jury to the proper issue to be resolved in a result-oriented offense.”). We conclude

this factor weighs against a finding of egregious harm.

          The next factor is the “state of the evidence.” See Almanza, 686 S.W.2d at 171. The

evidence established that A.C. was injured by at least four major blows to her head and the

injuries could not have been cause accidentally. The only disputed issue at trial was who caused

the injuries. According to Honaker and Cox, A.C. was injured within two to four hours of her

admission to MCP. During that time period, only Gonzalez and Sanchez had access to A.C.

There was evidence that during the evening of July 8, 2007, Gonzalez was angry with Castaneda

because her estranged husband did not provide adequate support for the children, was frustrated


     5
       See also Halton v. State, No. 05-14-00640-CR, 2015 WL 3991827, at *9 (Tex. App.—Dallas July 1, 2015, no pet. h.) (mem. op., not
designation for publication).



                                                               –13–
with Ad.C.’s and D.C.’s behavior, viewed the children as a burden, and did not want to be

responsible for watching the children. According to Sanchez, he did not see A.C. that night, but

heard her cry briefly as he used the restroom adjacent to the master bedroom. After Sanchez

returned from buying beer shortly before midnight, Gonzalez said something in Spanish that

translates to, “I fucked up.” Gonzalez also called Villarreal at 12:22 a.m. and requested a ride

because there had been an “accident.” Sanchez testified that, although he planned to spend the

night at Gonzalez’s apartment, he decided to leave shortly after 1:00 a.m. when Gonzalez began

acting strangely.   After Sanchez left, Gonzalez called him six times in less than an hour.

Sounding a “little agitated,” Gonzalez called Castaneda at 2:30 a.m., asked when she was coming

home, and requested she bring him a salad. Gonzalez did not tell Castaneda that something was

wrong with A.C. and testified that A.C. was fine at 2:30 a.m. At 2:43 a.m. Gonzalez called 911

and reported A.C. was not breathing. He also reported that A.C.’s head and feet were cold.

When Castaneda arrived, Gonzalez complained he had been calling 911 for an hour and threw

his cellphone against the wall. After A.C. was taken to the hospital, Gonzalez did not seem

concerned about her condition.

       The trial court correctly instructed the jury regarding intentional murder, and there was

sufficient evidence to support a conviction under that theory of the offense. Therefore, there was

“at least one theory of the offense upon which [Gonzalez’s] conviction may stand.” Medina, 7

S.W.3d at 640. Accordingly, this factor does not weigh in favor of a conclusion Gonzalez

suffered some actual, rather than theoretical, harm from the trial court’s error in the definition of

knowingly in the jury charge.

       The third factor requires that we consider the arguments of counsel. See Almanza, 686

S.W.2d at 171. The State’s closing argument focused on the severity of A.C.’s injuries and the

evidence supporting a finding that Gonzalez caused those injuries. In the defense’s closing

                                               –14–
argument, counsel conceded that A.C. was murdered by multiple blunt force trauma and that

“nobody is going to tell you it wasn’t a crime, it was an accident. It was an intensional [sic]

infliction.” Counsel then focused on the identity of the perpetrator, setting out the facts that

pointed to Sanchez. Defense counsel argued:

       Because as far as I’m concerned, there are two suspects. I want to do the whole
       trial over again and put Reuben Sanchez next to me and see how he does, see
       what he says. . . . He was there, he had the opportunity. He was mad at his wife,
       he was arguing with his wife.

Counsel argued the police did an inadequate investigation of Sanchez because, “They’d already

formed an opinion. They’d already got their man.” Defense counsel concluded,

       There is no doubt about what happened. There is no doubt about how it happened
       and there is no don’t [sic] about the outcome for that poor baby. The doubt is,
       which guy did it? Because they were both there. There were only two of them
       there. I’m asking you to go back and find him not guilty.

       The State did not erroneously argue the culpable mental state necessary for the charged

offense. Rather, the closing argument of both parties focused on the identity of the perpetrator.

We find nothing in the closing arguments to indicate Gonzalez suffered some actual, rather than

theoretical, harm from the erroneous definition of knowingly in the jury charge.

       We finally must consider any other relevant information revealed by the record as a

whole. Almanza, 686 S.W.2d at 171. We have reviewed the entire record and have found no

other relevant information that requires our consideration.

       On this record, we conclude the trial court’s error in failing to limit the definition of

“knowingly” to the applicable conduct element of the offense in the abstract portion of the jury

charge caused no actual, as opposed to theoretical, harm to Gonzalez.




                                               –15–
       We resolve Gonzalez’s sole issue against him and affirm the trial court’s judgment.




                                                  /Robert M. Fillmore/
                                                  ROBERT M. FILLMORE
                                                  JUSTICE


Do Not Publish
TEX. R. APP. P. 47

140830F.U05




                                             –16–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JOSE ANGEL GONZALEZ, Appellant                     On Appeal from the 380th Judicial District
                                                   Court, Collin County, Texas,
No. 05-14-00830-CR        V.                       Trial Court Cause No. 380-81581-08.
                                                   Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                       Justices Myers and Evans participating.

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


Judgment entered this 6th day of August, 2015.




                                            –17–
