                              Fourth Court of Appeals
                                     San Antonio, Texas
                                                OPINION
                                         No. 04-12-00637-CR

                                      Stephen Jonathon VOGT,
                                             Appellant

                                                v.
                                           The STATE of
                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009CR12648B
                             Honorable Melisa Skinner, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Catherine Stone, Chief Justice
                 Marialyn Barnard, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: December 18, 2013

AFFIRMED AS REFORMED

           Appellant Stephen Jonathon Vogt was found guilty by a jury for the capital murder of

Mario Alberto Raygoza on September 6, 2009, and sentenced to imprisonment for life, without

the possibility of parole, in the Institutional Division of the Texas Department of Criminal Justice.

On appeal, Vogt argues (1) the trial court’s jury instruction fails to accurately apply the law of

parties to the facts of the case, (2) the State’s closing jury argument violated his right to a fair trial

and due process, and (3) the record fails to establish Vogt’s ability to pay attorney’s fees as required
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by the judgment. We reform the judgment to delete the assessment of attorney’s fees and affirm

the judgment as reformed.

                                         BACKGROUND

A.     State’s Evidence

       The State called numerous officers and other individuals during their case-in-chief.

Additionally, numerous audio-video recordings of interviews between Vogt and Colorado and San

Antonio officers were admitted.

       According to Vogt, Vogt and Garza decided they wanted to move to Colorado, but the only

way they could get to Colorado was to kill someone to steal that person’s car. Vogt picked the

victim, Mario Alberto Raygoza. Vogt first met Raygoza through MySpace and Raygoza expressed

an attraction to Vogt. By promising Raygoza he was “going to make it be worth it,” Vogt

convinced Raygoza to pick him up at his house and to also pick up Garza at his residence.

According to Vogt, he told Raygoza that he and Garza needed help moving into a new apartment.

       Prior to being picked up by Raygoza, Vogt took a steak knife from his grandmother’s

butcher block. While still in the vehicle, Garza stabbed Raygoza from behind with the steak knife

and then, according to Vogt’s confession, Vogt stabbed Raygoza with a box-cutter. Raygoza was

able to escape and run from the vehicle, Garza and Vogt watched him fall and then drove

Raygoza’s vehicle away leaving Raygoza to die in the apartment parking lot. Raygoza died from

bleeding into his chest and a cardiac air embolism.

       Garza and Vogt drove to Glenwood Springs, Colorado. Along the way, they pawned and

sold items for cash. When they were out of money, they resorted to shoplifting. On September

24, 2009, almost three weeks after the murder, Vogt and Garza were picked up at a City Market

for petty theft/shoplifting in Glenwood Springs. Neither individual would provide the officers

with identification or their names. Originally, only Garza was charged with the theft. Vogt,
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however, became hysterical and inconsolable. Since he had no identification, the officers placed

Vogt in a different police vehicle in an attempt to find out where he lived. Once they were back

at the police station, Officers Allison Swegart and Scott Robertson recognized Vogt and Garza

from a BOLO (be on the lookout) posted at their police station. Officers from San Antonio had

previously determined that Vogt was in the Glenwood Springs area by Vogt’s continued access to

his MySpace account. After the Glenwood Springs officers obtained a video of the shoplifting,

where Vogt could also be seen taking items from the store, the officers arrested Vogt as well.

       Vogt was read his Miranda rights on several different occasions and elected to waive his

rights and talk to officers each time. During his first interview with Glenwood Springs Detective

John Hassell, Vogt was obsessed with seeing Garza. He was upset that he would not be able to

talk to either his mother or to Garza. He offered on several occasions to provide the officers with

any information they wanted if they would let him talk to Garza. Vogt denied any knowledge of

anything happening in San Antonio. Detective Hassell terminated the interview and told Vogt that

he was available if he wanted to discuss what happened in San Antonio.

       Shortly thereafter, Detective Hassell was called by jail officers and Vogt was brought back

to meet with Hassell. Vogt again waived his Miranda rights and told the officers he just wanted

to see or talk to Garza. During the interview, Vogt told the officers many of the details and

admitted to killing Raygoza. Vogt also relayed that he and Garza had tried to kill themselves with

rat poison and Lime-A-Way, but that it had only made them sick. Vogt and Garza decided they

did not want to be in San Antonio anymore and that they needed to leave.

       Vogt told the officers that Raygoza sent him pictures of himself and that Vogt did not like

it. He stated that after he and Garza stabbed Raygoza, Raygoza ran out of the car and Garza jumped

in the driver’s seat and they left. Vogt explained that they left because he and Garza did not want

people to think that they had killed Raygoza. Garza reassured Vogt that everything would be fine.
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Vogt told the officers that he had about $50.00 on him and Garza had about $10.00 and that was

the money they used for gas. When Vogt refused to acknowledge facts known to be true by

Detective Hassell, the interview was terminated.

       The following morning, Vogt was again Mirandized and elected to speak to the officers.

At this interview, Detective Hassell was accompanied by San Antonio Detective Tim Angell. Vogt

also spoke in a subsequent interview with Detective Brent Bell, an officer with the San Antonio

Police Department. Vogt told the officers that he wanted “to clarify” some of the details. He

provided his and Garza’s driving route, including the cities in which they stopped. Vogt even

provided the officers with the five locations in which they purchased fuel for the vehicle. He

explained that they stopped outside of Roswell and dyed their hair, but insisted that it was only

because they liked the new colors and not because they were trying to avoid being discovered.

Vogt further described how he and Garza were able to avoid detection. He stated they had only

resorted to shoplifting as a last choice after they had pawned everything and begged for everything

they could.

       Detective Angell asked Vogt on several occasions why he and Garza picked Raygoza.

Vogt responded that Raygoza was chosen because Vogt knew that he could convince Raygoza to

come and pick him up. Raygoza had a car and Vogt did not really know him and he “didn’t have

any ties to him.” Vogt reiterated that Raygoza was the only person that Vogt could think of with

whom they did not have ties. Vogt tried to make the officers understand that he and Garza had

determined that for he and Garza “to get on with their lives” in Colorado it required someone

having to die.

       Vogt further explained that he snuck out of his house and even described a basket of clothes

he left behind. Vogt directed Raygoza to Garza’s house where Garza was waiting for them. Vogt

exited the vehicle to help Garza with his belongings. Vogt also told the officers that while he and
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Garza were stabbing Raygoza, they were saying that they were sorry. Vogt further detailed that

he was responsible for the “little slits” and the stab wounds were made by Garza. Vogt told officers

that Raygoza “did not yell or anything,” he just started running off and then fell. That was when

he and Garza left for Colorado. They just wanted to start over.

       After describing the murder in great detail, Vogt again asked about Garza and when he

could see him. He wanted to know if Garza was still his friend.

B.     Defense Evidence

       Dr. Joann Murphey, an expert in psychology was called by the defense. Dr. Murphey

examined school records, video-recordings of interrogations, and medical records. She spoke to

people who knew Vogt, as well as Vogt himself. Dr. Murphey testified Vogt’s father and a cousin

both suffered from several mental disorders, often requiring his father to be hospitalized. At the

age of ten, Vogt was diagnosed with depression, anxiety, and attention deficit hyperactivity

disorder. Vogt’s childhood records indicate that he was irritable, suffered with sleep problems,

heard voices, and had hallucinations. Additionally, Vogt was paranoid, scared of the devil, scared

of anthrax, believed strangers were in his house, and even duct-taped his head to keep voices out.

       Dr. Murphey further explained Vogt was unable to think straight, suffered from a psychotic

disorder, and would “literally bounce around his bedroom” for days without sleep. She continued

that “Stephen has been diagnosed with almost every psychological condition that one could name.”

He was diagnosed with depression, anxiety, ADHD, bipolar disorder, thought disorder, and

schizophrenia. Dr. Murphey opined that all of these disorders impair judgment and thus affected

Vogt’s ability to anticipate what would happen in a given situation.

       Dr. Murphey explained that, prior to Raygoza’s murder, Vogt and Garza had mixed rat

poison, Lime-A-Way, NoDoz, and potentially other ingredients, with Dr. Pepper and made a

suicide pact. Vogt drank his concoction first and then Garza drank his. According to Dr. Murphey,
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Vogt longed for friends, was extremely vulnerable, and needed social contact. In this case, Vogt

was “head over heels in love with [Garza]. He idolized him. [Garza] had lots of friends. [Garza]

moved easily with people. Met people easily. Told [Vogt] whom he could spend time with and

who he could not spend time with. . . . [Vogt] felt that he finally had some friends because of his

relationship with [Garza].”

       Dr. Murphey explained this behavior could be seen in the interrogations where Vogt’s only

concerns were where Garza was, whether he could talk to Garza, and whether he could see Garza.

Vogt was “obsessionally involved in that relationship,” to the extent that Vogt took blame and

manufactured facts that did not even exist. Dr. Murphey testified that, in her opinion, Vogt “could

not have foreseen that—that level of violence or violence period would occur.” According to Dr.

Murphey, Vogt was heavily influenced by “some kind of almost psychotic proportions of love. So

that he could not anticipate that such a horrific event would occur.”

       During cross-examination, the State identified reports that Vogt did not have delusions or

hallucinations and that after treatment, Vogt’s levels of uncooperativeness, hostility,

manipulativeness, hyperactivity, and distractability all significantly decreased. Dr. Murphey,

however, testified these symptoms returned when Vogt stopped attending counseling sessions.

She further opined that at the time of the murder, Vogt was under significant stress, he was

homeless, fearful of losing his love object, and had not been sleeping. In her opinion, the

culmination of all his mental and emotional problems caused Vogt not to be able to think clearly

or rationally or form an idea to harm someone. Dr. Murphey could not, however, point to any

literature to support her hypothesis.




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                              LAW OF PARTIES JURY INSTRUCTION

       Vogt argues the jury was not instructed on how the law of parties applied to Vogt and the

facts of the case. More specifically, Vogt contends the State clearly asserted that Garza, not Vogt,

inflicted the blows that caused Raygoza’s death and, thus, Vogt was guilty as a party to the offense.

       During closing argument, Vogt’s defense counsel argued Vogt was not guilty of capital

murder because he did not kill Raygoza. To the contrary, defense counsel argued Vogt was guilty

as a party only to the aggravated robbery because Vogt gave the knife to Garza in order to rob

Raygoza. The trial court denied defense counsel’s requested instruction explaining it believed the

jury could reasonably apply the definition of “criminally responsible” to the charge as written.

Vogt’s defense counsel properly preserved his objection prior to the charge being read to the jury.

A.     Jury Charge

       The jury charge is the means by which a judge instructs the jurors on the applicable law.

Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). “‘Because the charge is the

instrument by which the jury convicts, [it] must contain an accurate statement of the law and must

set out all the essential elements of the offense.’” Id. (alteration in original) (quoting Dinkins v.

State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)); see also Abdnor v. State, 871 S.W.2d 726,

731 (Tex. Crim. App. 1994). “‘It is not the function of the charge merely to avoid misleading or

confusing the jury: it is the function of the charge to lead and to prevent confusion.’” Reeves v.

State, PD-1711-12, 2013 WL 5221142, at *4 (Tex. Crim. App. Sept. 18, 2013) (quoting Williams

v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)).

       The application paragraph must (1) specify all conditions which the jury must determine

were met before a conviction under such is authorized, (2) “authorize ‘a conviction under

conditions specified by other paragraph of the jury charge to which the application paragraph

necessarily and unambiguously refers,’” and (3) logically provide a basis for the combination of
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such paragraphs. Vasquez, 389 S.W.3d at 367; accord Dinkins, 894 S.W.2d at 339. “It is not

enough for the charge to merely incorporate the allegation in the charging instrument. Instead, it

must also apply the law to the facts adduced at trial.” Gray v. State, 152 S.W.3d 125, 127 (Tex.

Crim. App. 2004); Nandin v. State, 402 S.W.3d 404, 409 (Tex. App.—Austin 2013, no pet.).

B.     Standard of Review

       When an appellate court is presented with potential jury charge error, the court must

conduct a two-step inquiry: “First, the reviewing court must determine whether the jury charge

contains error. Second, the court must determine whether sufficient harm resulted from the error

to require reversal.” Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); see also Sakil,

287 S.W.3d at 25–26. If an appellate court finds an error in the jury charge, the question of which

standard of harm applies is dependent upon whether an objection was lodged. Abdnor, 871 S.W.2d

at 732. “Where there has been a timely objection made at trial, an appellate court will search for

only ‘some harm.’ By contrast, where the error is urged for the first time on appeal, a reviewing

court will search for ‘egregious harm.’” Mann, 964 S.W.2d at 641 (quoting Abdnor, 871 S.W.2d

at 731–32).

       Because the error was properly objected to by Vogt’s counsel, his conviction must be

reversed if the error “was calculated to injure the rights of [the] defendant.” See TEX. CODE CRIM.

PROC. ANN. art. 36.19 (West 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984) (op. on reh’g). This standard requires proof of no more than “some harm to the accused

from the error.” Almanza, 686 S.W.2d at 171. In conducting its analysis, this court must consider

“(1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and

(4) other relevant factors present in the record.” Reeves, 2013 WL 5221142, at *2 (citing Wooten

v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)). “This less-stringent standard still requires



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the reviewing court find that the defendant ‘suffered some actual, rather than merely theoretical,

harm from the error.’” Id. (quoting Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008)).

C.     The Charge As Provided to the Jury

       The trial court provided the following charge:

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

              Mere presence alone will not make a person a party to an 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.
              ....
              Now, if you find from the evidence beyond a reasonable doubt that on or
       about the 6th Day of September, 2009, in Bexar County, Texas, the defendant,
       Stephen Jonathon Vogt, did, either acting alone or together as a party with James
       Garza, intentionally cause the death of an individual, namely, Mario Alberto
       Raygoza, by cutting or stabbing Mario Alberto Raygoza with a deadly weapon,
       namely, a knife, that in the manner of its use or intended use was capable of causing
       death or serious bodily injury, and Stephen Jonathon Vogt, either acting alone or
       together as a party with James Garza, was in the course of committing or
       attempting to commit robbery of Mario Alberto Raygoza,

(emphasis added)

D.     Vogt’s Requested charge

       Defense counsel, following the argument in Jaycon v. State, 651 S.W.2d 803 (Tex. Crim.

App. 1983), requested the trial court separate out the application paragraph charging Vogt as a

principal from the application paragraph charging Vogt as a party to the offense.

               Now, if you find from the evidence beyond a reasonable doubt that on or
       about the 6th Day of September, 2009, in Bexar County, Texas, the defendant,
       Stephen Jonathon Vogt, acted with intent to promote or assist the commission of
       this offense by James Garza, by encouraging, directing, aiding or attempting to
       aid James Garza, to cause the death of an individual, namely, Mario Alberto
       Raygoza, by cutting or stabbing Mario Alberto Raygoza with a deadly weapon,
       namely, a knife, that in the manner of its use or intended use was capable of causing
       death or serious bodily injury, in the course of committing or attempting to commit
       robbery of Mario Alberto Raygoza,
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              Of, if you find from the evidence beyond a reasonable doubt that James
       Garza in Bexar County, Texas, on or about September 6th, 2009, did intentionally
       cause the death of Mario Raygoza, by cutting or stabbing Mario Raygoza with a
       deadly weapon, namely, a knife, that in the manner of its use or intended use was
       capable of causing death or bodily injury. And that the defendant, Stephen Vogt,
       acted with intent to promote or assist the commission of this offense by James
       Garza, by encouraging, directing, aiding or attempting to aid James Garza, to
       cause the death of Mario Raygoza, by cutting or stabbing Mario Raygoza, in the
       course of committing or attempting to commit robbery of Raygoza.

(emphasis added).

E.     Analysis

       1.      No error

               a.      Jury Instruction was Proper

       Vogt relies heavily on the Jaycon opinion.         See id.    The case, however, is quite

distinguishable. In Jaycon, there was no evidence that Jaycon was the primary actor or that Jaycon

was even present at the time of the shooting. Id. at 807. The court held that if Jaycon was guilty,

he was guilty only as a party. Thus, the court explained the jury instruction must be limited to the

facts of the case. Id. at 808. Reversing the trial court’s judgment, the Court of Criminal Appeals

concluded “The charge given was not sufficient to require the jury to find whether [Jaycon’s co-

defendant] caused the death of . . . , the deceased, and whether [Jaycon] was criminally responsible

for the acts of [Jaycon’s co-defendant].” Id. Here, the facts adduced at trial were very different.

By Vogt’s own confession, he was not only present at the scene, but participated in the act by

stabbing Raygoza with a box-cutter.

       “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.”

TEX. PENAL CODE ANN. § 7.01(a) (West 2011). Section 7.02(a)(2) of the Texas Penal Code

provides that 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,
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encourages, directs, aids, or attempts to aid the other person to commit the offense.”            Id.

§ 7.02(a)(2). Generally, the trial court may instruct the jury on the law of parties if “there is

sufficient evidence to support a jury verdict that the defendant is criminally responsible under the

law of parties.” Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999). The court may consider

the events that took place before, during, and after the commission of the crime. See Paredes v.

State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004); Goff v. State, 931 S.W.2d 537, 545 (Tex.

Crim. App. 1996).

       To convict Vogt of capital murder, the trial court’s charge required the jury to find the

following:

       (1) Vogt intentionally caused the death of Mario Alberto Raygoza either acting
           alone or together as a party with James Garza;
       (2) Mario Alberto Raygoza was killed by the cutting and stabbing of a knife; and
       (3) Vogt, either acting alone or together as a party with James Garza, was in the
           course of committing or attempting to commit robbery of Mario Alberto
           Raygoza.

Additionally, the jury was also instructed that simply being at the scene was not sufficient. To the

contrary, to convict Vogt, the jury had to find that Vogt either intentionally caused Raygoza’s

death or was criminally responsible for the acts of a person that caused Raygoza’s death. See TEX.

PENAL CODE ANN. § 7.01(a); Ladd, 3 S.W.3d at 564.

       Vogt provides no argument or case law as to how these abstract definitions on law of parties

might have misled or confused the jury. A reasonable jury would be able to refer to the abstract

definition of the law of parties without having it repeated again in the application paragraph. See

Vasquez, 3 S.W.3d at 366. Accordingly, the jury charge properly instructs the jury regarding Vogt

acting as a party to the offense of capital murder, with the underlying felony of aggravated robbery.




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               b.      Evidence Vogt acted as a principal

       Vogt also argues that because the State conceded that the deadly stab wound was caused

by Garza, Vogt can only be charged under the law of parties and not as a principal. Yet, the jury

could have understood the evidence differently. The jury is the sole judge of the weight and

credibility of witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). If the

jury did not believe Dr. Murphey’s testimony that Vogt could not have foreseen Raygoza’s death,

the jury was free to discredit it. See id.; Infante v. State, 397 S.W.3d 731, 736 (Tex. App.—San

Antonio 2013, no pet.)

       The medical examiner’s report indicated that the stab wounds from the steak knife caused

Raygoza’s death. In the videotaped interviews published to the jury, Vogt was adamant that he

stabbed Raygoza on numerous occasions with a box-cutter. Thus, the jury could have convicted

Vogt as either a principal or as a party.

       If the evidence clearly supports a jury finding that Vogt is guilty as the principal actor, any

error in charging on the law of parties is harmless. See Cathey v. State, 992 S.W.2d 460, 466 (Tex.

Crim. App. 1999) (“[W]here, as in the instant case, the evidence clearly supports a defendant’s

guilt as the primary actor, error in charging on the law of parties was harmless.”); Brown v. State,

716 S.W.2d 939, 945–46 (Tex. Crim. App. 1986) (holding the error harmless when the evidence

clearly supported appellant’s culpability as a primary actor); Black v. State, 723 S.W.2d 674, 675

(Tex. Crim. App. 1986) (“Where the evidence clearly supports a defendant’s guilt as a principal

actor, any error of the trial court in charging on the law of parties is harmless”); see also Ladd, 3

S.W.3d at 564–65 (same). The rationale is simple, if there was no evidence to support Vogt’s

conviction on a party theory, then the jury would not have relied on the party instruction; instead,

the jury could have rationally convicted Vogt as the principal actor. Black, 723 S.W.2d at 675 n.2;

Ladd, 3 S.W.3d at 565.
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        Vogt argues the charge erroneously allowed the jury to determine that Vogt acted alone.

Assuming that is the case, Vogt was not harmed by the presence of the language in the charge.

Here, the jury was clearly instructed that before they could find Vogt guilty of capital murder, they

had to make a finding that he caused the death of Mario Raygoza while either acting alone or as a

party. The record contained an abundance of evidence that Vogt was guilty as a party, and at least

some evidence that he was guilty as a principal.

        Because the charge in question required the jury find that Vogt acted either alone or as a

party with James Garza, there was no error in the charge as provided by the trial court. See Watson

v. State, 693 S.W.2d 938, 941 (Tex. Crim. App. 1985).

        2.     Assuming Error, the Error was Harmless

        Even assuming some error in the charge, any such error was harmless. Reversal is required

only if the error was calculated to injure the rights of the defendant; that is, some harm to the

accused has resulted. Almanza, 686 S.W.2d at 171. To determine the degree of harm under the

Almanza standard, an appellate court reviews (1) “‘the entire jury charge[; (2)] the state of the

evidence, including the contested issues and weight of probative evidence[; and (3)] the argument

of counsel and any other relevant information revealed by the record of the trial as a whole.’” See

Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (quoting Almanza, 686 S.W.2d at

171).

               a.      Examining entire jury charge

        Almanza requires the court to examine the entire jury charge. Almanza, 686 S.W.2d at 171;

see also Reeves, 2013 WL 5221142, at *2.

        The evidence at trial supports the conclusion that Vogt and Garza made a suicide pact.

When their attempts failed, they jointly decided that they needed to leave San Antonio and go to

Colorado. Vogt clearly explained he and Garza discussed that if they wanted to live in Colorado,
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someone was going to have to die. Vogt picked Raygoza because he “didn’t have any ties to him”

and provided the knife to Garza. Vogt called Raygoza and both he and Garza planned to arrange

for Raygoza to pick them up in his vehicle. They both brought clothes and belongings to leave

town. Vogt told the officers that he brought the knife and that he already possessed the box-cutter.

After they stabbed Raygoza, both Vogt and Garza watched Raygoza run off and fall to the ground.

They both left him to die. Additionally, while trying to escape to Colorado, both Vogt and Garza

attempted to alter their appearance by dyeing their hair.

       Here, the State charged three alternate theories of culpability—that Vogt acted alone, as a

party, or as a conspirator. In addition to the charge and requested charge, the application

paragraphs included a paragraph allowing the jury to find Vogt guilty of capital murder as a

conspirator to the crime. Specifically, the third paragraph of the application paragraph in the

charge provided the following:

       Or, if you find from the evidence beyond a reasonable doubt that Stephen Jonathon
       Vogt entered into a conspiracy with James Garza to commit the felony offense of
       aggravated robbery or robbery and that on or about the 6th Day of September, 2009,
       in Bexar County, Texas, in an attempt to carry out this agreement, James Garza,
       did intentionally cause the death of Mario Alberto Raygoza, by cutting or stabbing
       Mario Alberto Raygoza with a deadly weapon, namely, a knife, that in the manner
       of its use or intended use was capable of causing death or serious bodily injury, and
       Stephen Jonathon Vogt, either acting alone or together as a party with James Garza,
       were in the course of committing or attempting to commit robbery of Mario Alberto
       Raygoza, and that such offense of capital murder was committed in furtherance of
       the unlawful purpose to commit aggravated robbery or robbery and was an offense
       that should have been anticipated as a result of the carrying out of the conspiracy
       to commit aggravated robbery or robbery. . . .

Importantly, with regard to conspiracy, the defense made no objection to the court’s charge.

Instead, Vogt’s defense counsel argued during his closing argument that Vogt did not have the

mental capacity to conspire with Garza.

       To convict Vogt of capital murder, the charge required the jury to find that Vogt (1) agreed

with Garza to engage in conduct that would result in the death of Raygoza; (2) performed an overt
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act in furtherance of this agreement by setting up the chain of events, supplying the knife, and

encouraging Garza to commit the assault; and (3) that Vogt should have anticipated Raygoza could

have been killed as a result of their plan. Thus, this court’s inquiry is first, whether Raygoza’s

murder was committed in furtherance of the robbery, and second, whether Raygoza’s murder

should have been anticipated as a result of carrying out the conspiracy to rob him. See TEX. PENAL

CODE ANN. § 7.02(b). 1

           “[W]hether [Vogt] intended to kill [Raygoza] before the robbery took place is irrelevant if

the relevant liability elements were established at the time the crime was committed.” See Solomon

v. State, 49 S.W.3d 356, 369 (Tex. Crim. App. 2001). The evidence is uncontroverted that

Raygoza was killed during the aggravated robbery. The only evidence suggesting that Raygoza’s

death should not have been anticipated was provided by Dr. Murphey. Cf. id. To the contrary,

Vogt’s own statement to the officers negates that premise. “They knew someone had to die for

them to be able to go to Colorado” suggests that Vogt clearly understood that Raygoza either

would be killed or could have been killed by their “plan.”

           Accordingly, the jury could have determined that Vogt was guilty as a conspirator under

Texas Penal Code section 7.02(b) and as one criminally responsible for Garza’s acts under Texas

Penal Code section 7.02(a). See TEX. PENAL CODE ANN. § 7.02. Based on the evidence as a whole,

we cannot conclude that Vogt suffered harm due to any alleged error in the charge

                    b.       Arguments of counsel

           We next examine the arguments of counsel at trial. See Almanza, 686 S.W.2d at 171.



1
    TEX. PENAL CODE ANN. § 7.03(b) provides as follows:

           If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by
           one of the conspirators, all conspirators are guilty of the felony actually committed, though having
           no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was
           one that should have been anticipated as a result of the carrying out of the conspiracy.

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          The State argued that Vogt was guilty of either intentionally causing the death of Raygoza

while in the course of committing a robbery or he solicited, encouraged, directed, aided or

attempted to aid James Garza to commit the capital murder. “So either he intentionally committed

the death, or intentionally caused the death” or “[h]e encourage[d], solicit[ed], aid[ed] James Garza

in the intentional killing of Mario Raygoza.” Additionally, the State explained the co-conspirator

theory.

          And what that says is if you guys agree to commit one felony, robbery, in the course
          or in the attempt of committing that robbery, another felony is committed, capital
          murder. And you should have anticipated that what you had conspired to do could
          have resulted in the death of that person or could have resulted in the capital
          murder. . . .

          The defense focused on Vogt’s state of mind and Dr. Murphey’s testimony. Specifically,

the defense argued that Vogt’s mental disease and defects “were torturing him on that day when

Mario Raygoza was killed. To the point where [Vogt] was not able to form the intent to kill Mario

Raygoza and was not able to anticipate that Mario Raygoza would be killed as a result.” The

defense conceded that Vogt was guilty of aggravated robbery, and argued that was the only charge

on which the jury should convict him. With regard to the capital murder charges, the defense

argued the following: (1) there was no evidence that Vogt actually stabbed Raygoza and therefore

Vogt was not guilty as a principal; (2) Vogt did not aid and abet, assist, or solicit Garza to commit

the murder, instead Vogt gave Garza the knife in order to steal the car, not to kill Raygoza; and (3)

with regard to conspiracy, Vogt could not have anticipated that when he intended to rob Raygoza

with a knife, that Raygoza could be killed. Defense counsel explained the charge as it was written

and explained to the jury how he interpreted the charge. Thus, based on the attorneys’ closing

remarks, there is nothing in the arguments of the parties to suggest the charge harmed Vogt in any

manner.



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                c.      Entirety of the evidence and other relevant factors

       As the State argued, Vogt was guilty from the very beginning. Vogt selected Raygoza

because he did not know him well and Vogt felt that would make Vogt’s actions easier. Vogt

intentionally stole his grandmother’s steak knife and brought the knife to the fight. Vogt called

and arranged for Raygoza to pick up Vogt and then Garza. Vogt was the one directing Raygoza

where to drive. Regardless of Dr. Murphey’s opinion, Vogt’s multiple recorded statements are

evidence that he intended for Raygoza to be killed. Once Garza struck, Vogt joined in Raygoza’s

stabbing using a box-cutter. There is clearly sufficient evidence that Vogt understood his actions

and helped plan the entire chain of events. As such, the entirety of the evidentiary record does not

show that any alleged error in the charge harmed Vogt.

F.     Conclusion

       After reviewing the entire record, we conclude the evidence does not support that the jury

was misled by the court’s charge. Moreover, under an Almanza analysis, Vogt’s rights were not

harmed by any error in the court’s charge. See Almanza, 686 S.W.2d at 171. Vogt’s first issue is

overruled.

                                    IMPROPER JURY ARGUMENT

       Vogt next argues the State improperly informed the jury that the trial judge did not believe

the instruction regarding the lesser included offense of murder. More specifically, Vogt argues he

was denied due process and a fair trial by the State’s improper argument that presumed the trial

court’s opinion.

A.     The State’s Closing Argument

       State:        You’re going to see that there’s the lesser included offense of
                     aggravated robbery. The Court charge also says that the Court isn’t
                     making any comments on the evidence. The Court is not endorsing
                     anything in the charge. If it is raised by any evidence, no matter how
                     credible, it has to come into the charge. The Court—just by the fact that
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                  aggravated robbery is in the charge, does not mean that it’s being
                  endorsed by the Court.

       Defense: I object to counsel trying to nullify the charge, Your Honor.

       Court:     Overruled. Continue.

       State:     It’s not the Court endorsing or making a comment saying that’s what
                  she thinks it is. She has to include it. And what’s the incredible
                  evidence that it could be aggravated robbery? The nonsense that came
                  out of that doctor who failed to mention, throughout the entire direct
                  examination, that he had a cocaine problem at $30 a week for two years
                  leading up to this, right. Explains a lot of the stuff that she said. But I
                  know they’re going to talk about that a lot more. But anyway, that
                  what’s called a lesser included offense.

                  But, you know, you start by—you know, you’re here for capital murder.
                  That’s what you start with, okay. And I don’t think it’s going to take
                  you long. I don’t think you’re going to get past that. I mean, it just—it
                  couldn’t be any clearer.

B.     Proper Jury Argument

       “[P]roper jury argument generally falls within one of four general areas: (1) summation of

the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing

counsel; and (4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.

App. 2008); see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (same); Coble

v. State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993) (same). When jury argument falls outside

the approved areas, “it will not constitute reversible error unless [it] is extreme or manifestly

improper . . . or injects new facts harmful to the accused into the trial proceeding.” Temple v.

State, 342 S.W.3d 572, 602–03 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341

(Tex. Crim. App. 2013); see Brown, 270 S.W.3d at 570. In determining whether the prosecutor

made an improper jury argument, the reviewing court considers the entire argument in context,

and not merely isolated sentences. Rodriguez v. State, 90 S.W.3d 340, 364 (Tex. App.—El Paso

2001, pet. ref’d); see also Dinkins, 894 S.W.2d at 339.


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          Vogt asserts the State’s argument was calculated to nullify the court’s charge. See McClory

v. State, 510 S.W.2d 932, 935 (Tex. Crim. App. 1974). Further, Vogt contends the State’s actions

were the exact type of behavior condemned by the Court of Criminal Appeals in Dunbar v. State,

551 S.W.2d 382 (Tex. Crim. App. 1977). In Dunbar, the prosecutor remarked as follows:

                 Now let me talk to you about some of the things the Court charged you on.
          Now, understand that I know that [the other prosecutor] explained to you in Voir
          Dire the fact that you have things in [the charge] on self-defense and voluntary
          manslaughter, doesn’t mean that the Court believes that is what happened.

The Dunbar court reversed the trial court holding “The statements both before and after the court’s

ruling were direct references to the trial court’s beliefs about the case.” Dunbar, 551 S.W.2d at

383.

          Here, the comment was made during the State’s attempt to explain a very complicated

charge to the jury. The State contends it was trying to negate defense counsel’s argument that the

jury should convict on the lessor included offense of aggravated robbery. The State’s argument

was an attempt to explain to the jury that, even in light of the trial court’s charge of the lesser

included offense, the jury should conclude that Vogt was guilty of capital murder. Although we

have difficulty parsing the difference between what the trial court “believes” and something “not

being endorsed” by the trial court, in this case, the State appears to come perilously close to

crossing the line. However, in the record before this court, there is no evidence that the State’s

argument was “extreme and manifestly improper” or that any alleged improper arguments were “a

willful and calculated effort on the part of the state to deprive the appellant of a fair and impartial

trial.” Wesbrook, 29 S.W.3d at 115; see Coble, 871 S.W.2d at 204. Accordingly, the State’s

argument was not improper under the four prong test set forth in Brown. See Brown, 270 S.W.3d

at 570.




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                        INDIGENT DEFENDANT ASSESSED ATTORNEY’S FEES

          The record shows that on November 18, 2009, the trial court appointed counsel to represent

Vogt. During the following three years, several different attorneys were appointed to represent

Vogt for various hearings and motions. Vogt’s current counsel was appointed to represent him on

October 1, 2012 and the appointment was “to continue, (unless relieved by the court earlier, after

a finding of good cause is entered on the record), until charges are dismissed, the defendant is

acquitted, all post-trial motions are resolved, notice of appeal is perfected, or until relieved by the

court or replaced by other counsel.” This is the same counsel who currently represents him on

appeal.

          The record before this court does not contain an affidavit of indigency for appointment of

counsel before the trial. See TEX. CODE CRIM. PROC. ANN. 26.05(g) (West Supp. 2013); Wiley v.

State, 410 S.W.3d 313, 320 (Tex. Crim. App. 2013). Yet, the record establishes that court-

appointed counsel represented Vogt at trial and on appeal. Accordingly, this court concludes that

Vogt was indigent and unable to afford counsel. See Wiley, 410 S.W.3d at 320 (explaining a

defendant previously found indigent is presumed to remain indigent); Cates v. State, 402 S.W.3d

250, 251 (Tex. Crim. App. 2013) (quoting TEX. CODE CRIM. PROC. ANN. art. 26.04(p)) (“[A]

‘defendant who is determined by the court to be indigent is presumed to remain indigent for the

remainder of the proceedings in the case unless a material change in the defendant’s financial

circumstances occurs.’”). The trial court erred in assessing attorney’s fees against Vogt.

                                            CONCLUSION

          Although we conclude the jury charge was not erroneous, even assuming error, Vogt was

not harmed. See Almanza, 686 S.W.2d at 171; see also Taylor, 332 S.W.3d at 489; Cathey, 992

S.W.2d at 466. Additionally, in considering whether the State’s jury argument was a summation

or reasonable deduction of the evidence, an answer to opposing counsel’s argument, or a plea for
                                                 - 20 -
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law enforcement, we conclude the State’s argument was not improper. See Brown, 270 S.W.3d at

570. However, the trial court erred in assessing attorney’s fees as costs against Vogt. See Wiley,

410 S.W.3d at 320. We, therefore, reform the judgment and bill of costs to delete Vogt’s

requirement to pay attorney’s fees, and we affirm the trial court’s judgment as reformed.


                                                 Patricia O. Alvarez, Justice

PUBLISH




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