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

                                    No. 07-12-00356-CR
                               ________________________

                          ROSALINDA VAQUERA, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE



                           On Appeal from the 121st District Court
                                    Yoakum County, Texas
                  Trial Court No. 2908; Honorable Kelly G. Moore, Presiding


                                      October 24, 2013

                              MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant, Rosalinda Vaquera, was convicted by a jury of aggravated assault

causing serious bodily harm1 under the law of parties.2 She was sentenced to two

years confinement suspended and placed on community supervision for two years. On

appeal, she asserts (1) the State’s evidence at trial was legally insufficient; (2) the trial

1
See TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011).
2
See TEX. PENAL CODE ANN. § 7.02 (West 2011).
court committed error in the application paragraph of the jury charge; and (3) erred in

omitting a lesser-included offense from the jury charge. We affirm.


                                             BACKGROUND


       The indictment, as amended February 1, 2012, alleged that, on or about July 28,

2011, Appellant intentionally, knowingly, or recklessly caused serious bodily injury to

Derrick Cook by encouraging and directing an assault on him by Alexander Barrientes,

which led to the stabbing of Cook.


       At trial, Cook testified that, on the evening of July 28, 2011, he was hanging out

with friends at a city park. There, he met Appellant who told him Barrientes could beat

him up.3 Cook responded by telling her to ―call him over here then.‖ Later, Appellant

told Cook that Barrientes was ―almost at the park.‖ A few minutes later, Barrientes

arrived with several friends and a crowd gathered to watch the fight.


       When Cook confronted Barrientes, he felt pain in his side.              He then took

Barrientes to the ground and they rolled around. In the process, Cook knocked a knife

from Barrientes’s hand. The two separated and Cook heard someone yell that he had

been stabbed. Later, he discovered he had been stabbed in his arm, shoulder blade,

and beneath his left armpit.


       Barrientes testified that, prior to the fight, he received a text from Appellant telling

him that Cook was at the park ―acting all tough saying he could kick [Barrientes’s] ass.‖

Barrientes responded by texting: ―Tell him I will kill his ass. I promise I will.‖ Appellant


3
Cook and Barrientes had a falling out earlier in the year.

                                                     2
then texted that Cook had left and Barrientes responded: ―He did. I promise you when I

see him I’m going to kill him.‖ Appellant replied: ―Make it happen today.‖ Barrientes

responded: ―I will.‖ By his response, Barrientes testified he meant to go to the park and

kill Cook.


       Appellant next texted Barrientes asking whether he wanted her to make sure

Cook stayed at the park. Barrientes testified he interpreted the text to mean she was

going to keep Cook at the park. Appellant subsequently texted Barrientes to inform him:

―[Cook] is ready to go.     You best come.‖       Barrientes responded: ―We are here.‖

Appellant then texted: ―You better. Don’t punk out.‖ Barrientes replied: ―I won’t. I

promise I’m going to kill him.‖ Appellant then told him: ―Do it.‖


       Barrientes testified no one at the park knew he was carrying a knife or that he

intended to stab Cook. When the fight commenced, he testified Appellant was sitting at

a table with everyone else. He also indicated there was no ongoing dispute with Cook

the day of the fight and summed up his testimony by stating Appellant texted him that

Cook was there, asked if he wanted her to keep Cook there, and then told him to hurry

up and get to the park.


       Michael Hobson, an investigator for the district attorney’s office, testified that,

when he questioned Appellant, she ―mentioned to [him] that if she hadn’t ever called

[Barrientes] this would have never happened.‖          Nicole Castillo, Appellant’s friend,

testified that, when the fight started, Appellant was at the park but not at the fight scene.

Mariza Santillan, another of Appellant’s friends, testified Appellant was present at the

fight. An emergency room physician, Dr. Scott Frankfather, opined that Cook’s wounds


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―definitely constitute[d] serious bodily injury‖ because Cook could have died when the

knife punctured his lung and was ―at risk of death.‖


      The jury subsequently found Appellant guilty of aggravated assault under the law

of parties and the Appellant was sentenced to two years confinement, suspended, and

placed on community supervision for two years. This appeal followed.


                                       DISCUSSION


      Appellant asserts the State’s evidence was insufficient to prove aggravated

assault because she was unaware Barrientes was carrying a knife when he arrived at

the park. She asserts the trial court committed error in the application paragraph of the

jury charge by permitting the jury to convict Appellant of aggravated assault as a party

on a finding of knowing or reckless behavior. She also asserts the trial court erred in

omitting a jury charge on the lesser-included offense of misdemeanor assault. We

disagree.


      SUFFICIENCY OF THE EVIDENCE


      In determining whether the evidence is legally sufficient to support a conviction, a

reviewing court must consider all the evidence in a light most favorable to the verdict

and determine, based on that evidence and the reasonable inferences drawn therefrom,

whether a rational factfinder could have found the essential elements of the crime

beyond a reasonable doubt. Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011)

(citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979)); Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010) (plurality op.). In


                                            4
conducting our review, we do not sit as a thirteenth juror and may not substitute our

judgment for that of the factfinder by re-evaluating the weight and credibility of the

evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010). Rather, we

defer to the factfinder to fairly resolve conflicts in testimony, weigh the evidence, and

draw reasonable inferences from basic to ultimate facts. Id.


       A person is guilty of aggravated assault if he intentionally, knowingly, or

recklessly commits an assault which causes serious bodily injury to another or uses or

exhibits a deadly weapon during the commission of the assault. TEX. PENAL CODE ANN.

§ 22.01(a)(1), 22.02(a) (West 2011). Under the law of parties, ―[a] person is criminally

responsible as a party to an offense if the offense is committed by his own conduct, by

the conduct of another for which he is criminally responsible, or by both.‖      Id. at §

7.01(a). A person is ―criminally responsible‖ for an offense committed by the conduct of

another if, acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense. Id. at § 7.02(a)(2).


       Evidence is sufficient to convict under the law of parties where the accused is

physically present at the commission of the offense and encourages its commission by

words or other agreement.       Salinas v. State, 163 S.W.3d 734, 739 (Tex.Crim.App.

2005). In making a determination, the factfinder may examine the events occurring

before, during, and after the commission of the offense and may rely on actions of the

accused that show an understanding and common design to commit the offense. Id.

163 S.W.2d at 740. Further, ―[c]ircumstantial evidence alone may be used to prove that

a person is a party to an offense;‖ Powell v. State, 194 S.W.3d 503, 506 (Tex.Crim.App.

                                            5
2006), and ―the cumulative force of all the incriminating circumstances may be sufficient

to warrant a finding of guilt.‖ Davis v. State, 195 S.W.3d 311, 320 (Tex.App.—Houston

[14th Dist.] 2006, pet. ref’d) (quoting King v. State, 17 S.W.3d 7, 15 (Tex.App.—Houston

[14th Dist.] 2000, pet. ref’d)).


       Here, Appellant was not the primary actor and the State need only prove

―conduct constituting an offense plus an act by the defendant done with the intent to

promote or assist such conduct.‖ Christensen v. State, 240 S.W.3d 25, 31 (Tex.App.—

Houston [1st Dist.] 2007, pet. ref’d) (citing Beier v. State, 687 S.W.2d 2, 3

(Tex.Crim.App. 1985)). Cook’s and Barrientes’s testimony established that Barrientes

intended to and did assault Cook with a knife. Dr. Frankfather’s testimony established

that, as a result of Barrientes’s assault, Cook suffered serious bodily harm and

Appellant’s text messages establish that she intended to promote and did assist

Barrientes’s conduct. Thus, considering the evidence in a light most favorable to the

verdict, the State’s evidence was sufficient for the jury to find Appellant guilty of an

aggravated assault under the law of parties. Appellant’s first issue is overruled.


       JURY INSTRUCTION – INTENT


       In determining whether there is reversible error due to an erroneous jury charge,

we first decide whether error exists, and if error exists, then we determine whether an

appellant was harmed. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003)

(citing Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996)). Because Appellant

did not make any specific objection to the charge, charge error is not preserved, and we

will reverse only if we find egregious harm.      Vega v. State, 394 S.W.3d 514, 519


                                             6
(Tex.Crim.App. 2013). See Jimenez v. State, 32 S.W.3d 233, 238-39 (Tex.Crim.App.

2000).


         The application paragraph stated as follows:


         Now, if you find from the evidence beyond a reasonable doubt that on or
         about July 28, 2011, in Yoakum County, Texas, the defendant,
         ROSALINDA VAQUERA, did then and there intentionally, knowingly, or
         recklessly cause bodily injury to Derrick Cook by encouraging and
         directing an assault of Derrick Cook by Alexander Barrientes that led to
         the stabbing of Derrick Cook, then you will find the defendant guilty of
         aggravated assault as charged.


         Assuming without deciding the trial court committed error, we cannot conclude

that the error, if any, affected the ―very basis of the case‖ or deprived Appellant of a fair

and impartial trial under Almanza’s4 egregious harm standard. See Batiste v. State, 73

S.W.3d 402, 407 (Tex.App.—Dallas 2002, no pet.).                        The terms in the application

paragraph, ―intentionally, knowingly, or recklessly,‖ expressly relate back to the mental

state necessary to commit a simple assault, an element essential to commission of the

offense of aggravated assault, as defined in the abstract portion of the charge. See

Delapaz v. State, 228 S.W.3d 183, 212 (Tex.App.—Dallas 2007, pet. ref’d) (meaning of

a jury instruction must be taken from the whole charge).5 The terms ―encouraging‖ and

―directing‖ expressly relate back to the abstract paragraph regarding the law of parties

4
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984) (op. on reh’g).
5
Regarding aggravated assault, the jury charge states, in pertinent part, as follows:

         1. Our law provides that a person commits an assault if the person intentionally,
         knowingly or recklessly causes bodily injury to another. A person commits aggravated
         assault if the person commits an assault, as defined above, and causes serious bodily
         injury to another.

         2. By the term ―bodily injury‖ is meant physical pain, illness, or any impairment of physical
         condition. By the term ―serious bodily injury‖ is meant bodily injury that creates a
         substantial risk of death or that causes death, . . ..

                                                      7
and states, a person may be found criminally responsible if the person acted with an

intent to promote or assist the commission of the offense.6 Moreover, the evidence at

trial established one assault, i.e., Barrientes stabbed Cook, and one person, Appellant,

who intentionally encouraged and directed Barrientes’s assault through explicit text

messages telling Barrientes to ―[d]o it‖ and ―[m]ake it happen today.‖                     Appellant’s

second issue is overruled.


       JURY INSTRUCTION – LESSER-INCLUDED OFFENSE


       The trial court should instruct the jury on a lesser-included offense if (1) the

lesser offense is included within the proof necessary to establish the offense charged

and (2) there is some evidence in the record that would permit the jury to find him guilty,

if he is guilty, only of the lesser offense. Campbell v. State, 149 S.W.3d 149, 152

(Tex.Crim.App. 2004). That the State in proving the alleged offense of aggravated

assault, also proves the lesser-included offense of simple assault, does not require a

jury charge on the lesser-included offense absent evidence that defendant is guilty only

of the lesser offense. See Curtis v. State, 573 S.W.2d 219, 223 (Tex.Crim.App. 1978).

Regarding the second element, it is not sufficient that the jury might have disbelieved

evidence pertaining to the greater offense. Hampton v. State, 109 S.W.3d 437, 441

(Tex.Crim.App. 2003).


6
Regarding the law of parties, the jury charge states, in pertinent part, as follows:

       4. A person is criminally responsible as a party to an offense if the offense is committed
       by his own conduct, by the conduct of another for which he is criminally responsible, or
       by both. Each party to an offense may be charged with the commission of the offense.

       A person is criminally responsible for an offense committed by the conduct of another if
       acting with intent to promote or assist the commission of the offense, he solicits,
       encourages, directs, aids, or attempts to aid the other person to commit the offense.

                                                      8
      Here, Appellant did not request an instruction on any lesser-included offense and

cites no case law requiring a trial judge to sua sponte make such an instruction. To the

contrary, in the absence of a request or objection that a lesser-included offense be

included in the charge, the error complained of on appeal is waived. Kinnamon v. State,

791 S.W.2d 84, 96 (Tex.Crim.App. 1990), overruled on other grounds, Cook v. State,

884 S.W.2d 485, 491-92 (Tex.Crim.App. 1994) (en banc). In addition, a trial court is not

statutorily required to sua sponte instruct a jury on a lesser-included offense. Tolbert v.

State, 306 S.W.3d 776, 780 (Tex.Crim.App. 2010). Appellant’s third issue is overruled.


                                       CONCLUSION


      The trial court’s judgment is affirmed.

                                                Patrick A. Pirtle
                                                     Justice


Do not publish.




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