                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo
                               ________________________

                                    No. 07-11-0142-CR
                               ________________________


                             ANTHONY L. TORRES, APPELLANT

                                             V.

                             THE STATE OF TEXAS, APPELLEE



                           On Appeal from the 364th District Court
                                  Lubbock County, Texas
          Trial Court No. 2010-429166, Honorable Bradley S. Underwood, Presiding


                                     March 26, 2013

                              MEMORANDUM OPINION
                      Before Quinn, C.J., and Campbell and Hancock, JJ.

       Appellant Anthony Lee Torres appeals from his conviction by jury of the offense

of capital murder and the resulting mandatory life sentence. Through one issue,

appellant asserts the jury charge contained an error causing him egregious harm. We

disagree, and will affirm.
                                       Background


      Appellant was charged in a two-count indictment with the murder and the capital

murder of Amanda Moreno. Count One alleged that appellant intentionally or knowingly

caused Moreno’s death “by choking [her] and by striking [her] with [appellant’s] hands.”

Count Two was similar, but alleged that appellant intentionally caused Moreno’s death

“by choking [her] with [appellant’s] hands1 and by striking [her] with [appellant’s] hands.

Count Two also contained the added allegation that appellant was “then and there in the

course of committing or attempting to commit the offense of robbery of [Moreno].”


      At trial, the State proceeded only on Count Two, the capital murder count. 2 Only

that count was read to the jury, and appellant’s not-guilty plea was entered only to that

count. The State’s evidence included the testimony of the medical examiner and

appellant’s written statement confessing to killing Moreno.      According to appellant’s

statement, during an argument he hit Moreno on the side of her head, causing bleeding.

He choked her with his hands until she stopped breathing, then choked her with a pair

of her child’s pants to ensure she was dead. The medical evidence showed Moreno

suffered trauma to several parts of her body from blows inflicted on her, and that her

death was caused by asphyxia. Appellant took rings from Moreno’s fingers and other

items, pawned them and used the proceeds to buy crack cocaine.


      The court’s charge to the jury authorized conviction on the indicted capital

murder offense, and on a lesser-included offense of murder. The charge contained the


      1
          Emphasis ours.
      2
          Count One was later dismissed.
following application paragraphs:


            Now, if you find from the evidence beyond a reasonable doubt that on or
      about June 11, 2010, in Lubbock County, Texas, the defendant, ANTHONY L
      TORRES, did then and there intentionally cause the death of an individual,
      namely Amanda Moreno, by choking the said Amanda Moreno or by striking the
      said Amanda Moreno with the defendant’s hands, and the defendant was then
      and there in the course of committing or attempting to commit the offense of
      robbery of Amanda Moreno, then you will find the defendant guilty of capital
      murder.


             If you find from the evidence beyond a reasonable doubt that on or about
      June 11, 2010, in Lubbock County, Texas, the defendant, ANTHONY L
      TORRES, did then and there intentionally cause the death of an individual,
      Amanda Moreno, by choking the said Amanda Moreno with defendant’s hands3
      or by striking the said Amanda Moreno with defendant’s hands, but you have a
      reasonable doubt as to whether the defendant was then and there engaged in
      the commission or attempted commission of robbery of Amanda Moreno, then
      you will find the defendant guilty of the lesser offense of murder.


      The jury found appellant guilty of the capital murder, and the trial court assessed

the statutorily-required punishment. This appeal followed.


                                        Analysis
      Appellant’s issue on appeal arises from the wording of the application

paragraphs of the jury charge. As appellant sees it, the charge permitted the jury to

convict on an “invalid theory of guilt.”       Recall, the indictment alleged appellant

committed capital murder by choking Moreno with his hands or striking her with his

hands. The application paragraph for the capital murder offense omitted the phrase

“with defendant’s hands.”




      3
          Emphasis ours.


                                           3
       Appellant acknowledges that, from the evidence, the jury rationally could have

concluded appellant caused Moreno’s death by choking her with his hands or with the

child’s pants. But, he argues, “Nothing in the charge explains that the means of causing

death specifically alleged in the indictment must be proven.”4 There is the difficulty with

appellant’s contention: for his guilt of capital murder, the law does not require proof of

the means of causing death specifically alleged in the indictment.


       As alleged against appellant, the elements of capital murder are that appellant

intentionally committed murder, that is, intentionally caused the death of Moreno, in the

course of committing or attempting to commit robbery.          Tex. Penal Code Ann. §§

19.02(b)(1), 19.03 (West 2012).      The manner in which appellant caused Moreno’s

death, or the means used, are not statutory elements of the offense, and do not affect

the allowable unit of prosecution.       Johnson v. State, 364 S.W.3d 292, 296-97

(Tex.Crim.App. 2012). Discussing a hypothetical case in which a murder indictment

alleged death was caused by stabbing with a knife but the proof showed it was caused

by bludgeoning with a baseball bat, the court noted, “These methods of committing

murder do describe an element of the offense: the element of causation. But murder is

a result-of-conduct crime. What caused the victim’s death is not the focus or gravamen

of the offense; the focus or gravamen of the offense is that the victim was killed.” Id. at

298 (citations omitted).    Viewed with that understanding, the theory of guilt that

appellant regards as invalid, a theory permitting his guilt without proof he caused

       4
         Appellant’s brief disclaims an intention to assert an evidentiary sufficiency claim
or one asserting a material variance, but we find it is not possible to address his
contention regarding what “must be proven” without consideration of evidentiary
sufficiency.


                                             4
Moreno’s death by choking her with his hands rather than the pair of pants actually is

not invalid but is expressly permitted by our penal laws.


       Appellant cites Ex parte Drinkert, 821 S.W.2d 953 (Tex.Crim.App. 1991), in

which the court granted habeas corpus relief, in part because of counsel’s failure to

object to a jury charge that permitted conviction based on either of two counts. One

count properly alleged an offense of murder but the other alleged felony murder in a

manner not permitted by law. Id. at 955. The court characterized the second count as

“void,” and “invalid as a matter of law,” concluding the jury’s general guilty verdict could

not stand because it was impossible to determine on which count it was based. Id.


       Appellant also finds Sanchez v. State, 209 S.W.3d 117 (Tex.Crim.App. 2006), on

point. The court there considered a jury charge in a prosecution for official oppression. 5

The definitional section of the charge did not make clear that to constitute sexual

harassment, a defendant’s requests for sexual favors or other conduct of a sexual

nature must be unwelcome. Id. at 122. Nor did the abstract portion of the charge

contain an instruction telling the jury it must find the defendant was aware that any of his

sexual conduct was unwelcome. The court further stated that the application paragraph

of the charge did “nothing to ameliorate these deficiencies.” Id. (citations omitted).

Noting that unwelcome sexual conduct and the culpable mental state of awareness that

the conduct was unwelcome were “elemental facts,” id. at 122, the court concluded that

the charge failed to require the jury to find two elements of the offense to be proven

before convicting. After also analyzing the evidence and argument, the court agreed


       5
           Tex. Penal Code Ann. § 39.03(a)(3), (d) (West 2012).


                                             5
with the court of appeals’ holding that the error in the charge caused egregious harm.

Id. at 125.


       Neither opinion aids appellant’s argument here. Unlike in Drinkert, 821 S.W.2d

at 955, only one indicted count was submitted to the jury in this case, so there can be

no doubt the jury’s verdict was based on that capital murder count. The count was not

void or invalid.    And, unlike in Sanchez, 209 S.W.3d at 122, the complained-of

deficiency in the charge here does not involve statutory elements of the offense. At

most, the application paragraph here permitted conviction despite an immaterial

variance between the charging instrument and the proof at trial. 6 See Johnson, 364

S.W.3d at 298; see also Jefferson v. State, 189 S.W.3d 305, 312 (Tex.Crim.App. 2006)

(jury unanimity analysis of offense of injury to a child, also a result-of-conduct offense.) 7


       Appellant’s argument that the court’s charge subjected him to conviction under

an invalid theory is based on comparison of the indictment’s capital murder count with

the charge’s application paragraph for that count. Although we cannot agree with that

argument, appellant is correct that the charge contains error. As his brief mentions in

       6
        Appellant also has referred us to Render v. State, 347 S.W.3d 905 (Tex.App.—
Eastland 2011, pet. ref’d). Render involves a contention the trial court erred by denying
a motion to quash indictments for failure to provide the defendant fair notice of the
manner and means by which he allegedly committed an aggravated assault and a
murder. Id. at 923-24. No motion to quash is at issue in this case.
       7
         Note that the court in Sanchez, 209 S.W.3d at 125 n.42, quoted Judge
Cochran’s concurring opinion in Jefferson, 189 S.W.3d at 316 (“Generally, adverbial
phrases, introduced by the preposition ‘by,’ describe the manner and means of
committing the offense. They are not the gravamen of the offense, nor elements on
which the jury must be unanimous.”) (Cochran, J., concurring).




                                              6
passing, the charge authorized the jury to find him guilty of simple murder as a lesser-

included offense.


         Comparison of the application paragraph for the lesser-included simple murder

offense with that for the capital murder shows that, although the two paragraphs are

describing the same actus reus, they describe the manners of causing death in different

terms.     Inexplicably, the phrase “with defendant’s hands,” which in the indictment

appeared in the capital murder count, found its way into the application paragraph for

the lesser-included simple murder offense. By the application paragraphs, the jury thus

was told it could find appellant guilty of capital murder if it determined he caused

Moreno’s death by choking her or by striking her with his hands, or, if it had reasonable

doubt of the robbery element, could find him guilty of murder if it also determined he

caused Moreno’s death by choking her with his hands or by striking her with his hands.


         The application paragraph is that portion of the jury charge that applies the

pertinent penal law, abstract definitions, and general legal principles to the particular

facts and the indictment allegations. Vasquez v. State, 389 S.W.3d 361, 370

(Tex.Crim.App. 2012).       Because the application paragraph “specifies the factual

circumstances under which the jury should convict or acquit, it is the ‘heart and soul’ of

the jury charge.” Id., citing Gray v. State, 152 S.W.3d 125, 127 (Tex.Crim.App. 2004)

(charge must “apply the law to the facts adduced at trial”).


         As noted, appellant admitted in his written statement that he choked Moreno with

two instrumentalities, his hands and the child’s pants. That evidence raises the danger

that the jury took note of the difference in the wording of the two application paragraphs



                                             7
and believed it could convict of the lesser offense only if it found appellant caused the

death by choking with his hands, as opposed to the pants. 8


       By definition, murder was a lesser-included offense here because it could be

established by proof of the same or less than all the facts required to establish the

commission of capital murder. Tex. Code Crim. Proc. Ann. art. 37.09(1) (West 2012).

But the application paragraph for the lesser offense included a more specific means for

the choking manner of causing death than that included for the greater offense. In the

absence of evidence to support such a different statement, describing the lesser offense

with greater specificity was error.


       Having found error in the charge, we turn to the issue of harm. Because the

error in the charge was not brought to the attention of the trial court, it will lead to

reversal only if it was egregious, that is, it deprived appellant of a fair and impartial

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

superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787,

788 (Tex.Crim.App. 1988). Egregious harm occurs when the error "affects 'the very

basis of the case,' deprives the defendant of a 'valuable right,' or 'vitally affect[s] a

defensive theory.'" Olivas v. State, 202 S.W.3d 137, 144 (Tex.Crim.App. 2006)

(quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996) and Almanza, 686

S.W.2d at 172)). In the egregious harm analysis, we consider (1) the charge itself, (2)

the state of the evidence, including contested issues and the weight of the probative


       8
         See Barrios v. State, 283 S.W.3d 348, 352-53 (Tex.Crim.App. 2009) (discussing
jurors’ consideration of charge).



                                           8
evidence, (3) arguments of counsel, and (4) any other relevant information revealed by

the trial record as a whole. See Hutch, 922 S.W.2d at 171.


      The State argues consideration of the entire charge weighs in favor of a

conclusion the harm from the discrepancy in the two application paragraphs was not

egregious. 9 The error appears only in the application paragraphs; the manner and

means of Moreno’s death are not referred to in the abstract portions of the charge. As

the State points out, the jury could have read the entire phrase in the capital murder

application paragraph, “by choking the said Amanda Moreno or by striking the said

Amanda Moreno with the defendant’s hands,” to mean that it must find both the choking

and the striking to have been with the defendant’s hands. Under that reading of the

capital murder paragraph, there would be no difference in the proof of the means of

death described in the two application paragraphs. We agree with the State that the

danger from the addition of the words “with defendant’s hands” in the simple murder

application paragraph is thus somewhat speculative.


      Next considering the evidence and the contested issues, with his detailed

confession in evidence appellant could raise but little defense to the charges. Except

for the introduction of some exhibits, appellant’s case was presented only through

cross-examination of the State’s witnesses. Through cross-examination of the medical

examiner regarding the nature of some of Moreno’s wounds, he attempted to cast doubt

on his intent to cause her death. In argument, however, his trial counsel, in candor


      9
        The State’s argument actually is addressed to appellant’s contention the charge
permitted conviction on an invalid theory, but it is applicable to the issue we address as
well.


                                            9
toward the jury, had to acknowledge the evidence showed he intentionally caused

Moreno’s death.


       Appellant’s primary defense was a contention he and Moreno had a common-law

marriage, giving rise to a presumption the items he took after his attack on her was their

community property. In correspondence from Moreno to appellant, she expressed a

committed love for him, and in the return address referred to herself as Mrs. Amanda

Torres. The State denied that evidence demonstrated more than their living together,

and emphasized evidence that in any event Moreno’s rings were her separate

property. 10   The State also emphasized the blood found on an electrical socket,

indicating appellant, while still bearing Moreno’s blood on his hands, unplugged the

televisions and other electronic equipment he promptly pawned.


       As noted, the medical evidence was to the effect that asphyxia caused Moreno’s

death. The medical examiner testified the blows to her body likely would not alone have

killed her. He testified the evidence was consistent both with strangulation by hands and

by a ligature like the child’s pants. No other evidence either supported or cast doubt on

appellant’s statements that he choked Moreno both with his hands and the pants. The

instrumentality of her choking was not a contested issue at trial, and was little discussed

in the evidence.


       Appellant points to statements during the State’s closing argument as supporting

the harmfulness of the charge error. He contends the State emphasized the evidence


       10
           Appellant’s statement contains the sentence, “I took her rings off of her
fingers[,] washed the blood off and went to the pawn shop.”


                                            10
appellant choked Moreno with the pants by the statement, “That’s the intentional murder

in this case, a choking by her own orphaned daughter’s pants.” In its context, we do not

agree the State was arguing for one means of choking over another. The prosecutor

also referred to a victim “looking into the eyes of the man that you love and being

choked by his own hands.” Both the statements were part of the prosecutor’s argument

that capital murder is “a murder plus a robbery.” Nor does the reference to “intentional

murder” distinguish between capital murder and the lesser simple murder.              Both

application paragraphs told the jury they must find appellant intentionally caused

Moreno’s death.


       In short, our review of the record shows the arguments of counsel involved only

scant mention of the means of Moreno’s choking, and no argument favoring one means

over the other.


       Egregious harm is a difficult standard to prove, and the determination must be

made on a case-by-case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex.Crim.App.

2011) (citing Hutch, 922 S.W.2d at 172). Errors that result in egregious harm are those

"that affect the very basis of the case, deprive the defendant of a valuable right, vitally

affect the defensive theory, or make a case for conviction clearly and significantly more

persuasive." Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). Egregious

harm causes actual, not just theoretical, harm to the accused. Almanza, 686 S.W.2d at

174.


       We find the addition of the words “with defendant’s hands” in the lesser-included

offense application paragraph did not affect the very basis of the case, deprive appellant



                                            11
of a valuable right, or vitally affect his defensive theory. Neither the omission of the

phrase “with defendant’s hands” in the capital murder application paragraph nor its

inclusion in the lesser-included offense application paragraph require reversal.    We

resolve appellant’s issue against him and affirm the judgment of the trial court.




                                                 James T. Campbell
                                                     Justice




Do not publish.




                                            12
