
NO. 07-00-0370-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

SEPTEMBER 27, 2001

______________________________


JUAN LOUIS CARMONA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 99-430988; HONORABLE JIM BOB DARNELL, JUDGE

_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.
	Appellant Juan Louis Carmona appeals from his conviction for murder.  He asserts
that the trial court improperly charged the jury and that the evidence is legally insufficient
to support his conviction.  We affirm.  
I.  BACKGROUND
	On June 28, 1999, appellant and three friends demolished a car parked at the
house of two persons with whom appellant and his friends were angry.  The demolishing
of the car was done to a large extent with a metal baseball bat the four had brought with
them.  After demolishing the car, the four friends happened upon Raymond Tovar, who
was walking to a local convenience store to buy cigarettes.  Appellant and his friends
suspected Tovar of having previously fired a pistol at a group which included appellant. 
The earlier shooting was not reported to the police because appellant and his friends
intended to take care of the matter themselves.   	
	The group cornered Tovar in an alley and beat and kicked him.  Appellant at first
had the baseball bat which had earlier been used to demolish the car, but evidence
indicated that one of the other members of the group took the bat from appellant during the
episode.  Tovar was severely beaten and died from blunt force trauma to the head which
caused several lacerations and fractures of his skull.  Appellant gave a statement to the
police in which he claimed that he kicked Tovar but that another member of the group used
the baseball bat to beat Tovar. 
	Appellant was indicted and tried for murder.  The jury found him guilty and assessed
his punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for life.  
	At the guilt-innocence stage of trial the jury was charged in accordance with Penal
Code §§ 19.02(b)(2) (murder) and 7.02(a)(2) (criminal responsibility for conduct of
another). (1) 
	By two issues appellant urges us to reverse his conviction.  He first asserts that he
cannot be convicted of murder on the basis that he was criminally responsible for Tovar's
death as a party (Section 7.02 responsibility) unless he had specific intent to cause
Tovar's death.  Appellant's second issue is premised on the validity of his first issue.  His
second issue urges that the evidence is legally insufficient to show that he promoted or
assisted another or others with the specific intent to kill the deceased.  We necessarily
address the issues in the order presented.  
II.  FAILURE OF THE TRIAL COURT TO PROPERLY 
CHARGE THE JURY
A.  Law
	Jury charges are required to set forth the law applicable to the case.  See Tex.
Crim. Proc. Code Ann. art. 36.14 (Vernon 2001).  When an issue asserts harmful error
in the charge, the first determination to be made is whether error actually exists in the
charge.  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). 
 The starting point in any statutory construction analysis is the plain language of the
statute in question.  Brown v. State, 943 S.W.2d 35, 36 (Tex.Crim.App. 1997).  We look
to the literal text of the statute and apply the plain meaning of its words, unless application
or the statute's plain meaning would lead to absurd consequences that the legislature
could not possibly have intended, or if the literal language is ambiguous.  State v. Webb,
12 S.W.3d 808, 811 (Tex.Crim.App. 2000).  A narrow exception allows for the use of extra
textual factors for interpretation when the plain language of a statute would lead to absurd
results or said language is not plain but rather is ambiguous.  Hernandez v. State, 861
S.W.2d 908, 909 (Tex.Crim.App. 1993). 
B.  Analysis
	Appellant's first issue does not challenge the jury charge because it misstated the
applicable law.  Rather, he challenges the charge because it did not go further than the
statutory language in Section 7.02(a)(2) and add an instruction to the effect that appellant
could not be found guilty of murder on the basis that he was criminally responsible for the
actions of another person unless the jury found that appellant had specific intent to kill the
assault victim.  In making his challenge to the failure of the trial court to so charge the jury,
he relies primarily on Baldridge v. State, 543 S.W.2d 639 (Tex.Crim.App. 1976), and
Flanagan v. State, 675 S.W.2d 734 (Tex.Crim.App. 1984).  Appellant reads Baldridge to
hold that under the former Penal Code, an actor could not be convicted for murder actually
performed by another unless the actor had knowledge of the other's intent to kill the victim. 
He cites Flanagan for the proposition that a conviction for attempted murder under Section
15.01 requires the State to prove that the defendant had specific intent to kill the intended
victim.  Appellant then analogizes his case to Flanagan and asserts that conviction of
murder as a party under section 7.02(a)(2) should also require proof that the defendant
charged as a party had specific intent to kill the victim.  Appellant acknowledges that
certain cases such as Binyon v. State, 545 S.W.2d 448 (Tex.Crim.App. 1976),  Gutierrez
v. State, 681 S.W.2d 698 (Tex.App.--Houston [14th Dist.] 1984, pet. ref'd), and Henry v.
State, 738 S.W.2d 332 (Tex.App.--Houston [1st Dist.] 1987, pet. ref'd), seem adverse to his
position.    
	We disagree with appellant's assertion.  As to Baldridge, we first note that the court
was considering evidentiary requirements for conviction of murder with malice under a
former version of the Penal Code.  The term "malice" as either an element of the crime
itself or as a consideration in the assessment of punishment for the crime of murder
addressed the mental status of alleged perpetrators of a killing, and therefore implicated
proof of state of mind.  See Smith v. State, 5 S.W.3d 673, 683, 687 (Tex.Crim.App. 1999)
(quoting Brown v. State, 171 Tex.Crim. 320, 349 S.W.2d 722, 724 (1961)).  "Malice" is not
part of the statutory language of either Section 19.02 or Section 7.02.  
	Second, although the Baldridge opinion stated that for one to be convicted of
murder with malice as a principal, the person charged as a principal must have had
knowledge of the actual killer's intent to kill the victim, that statement was later qualified
even as to the prior statute's murder with malice provision: 
	The record is silent as to any common purpose or design.  In situations in
which one may be guilty as a principal, the very least that is required in
addition to physical presence is encouragement by words or agreement to
the commission of the offense.  Such agreement must be prior to or
contemporaneous with the criminal event.  543 S.W.2d at 643.
 
We do not consider Baldridge to be controlling of the issue before us.  
 Flanagan construed the criminal attempt language of Section 15.01.  Section 15.01
plainly provides that a person commits an offense if, "with specific intent to commit an
offense, he does an act amounting to more than mere preparation that tends but fails to
effect the commission of the offense intended"(emphasis added). 
 Flanagan did not engraft "specific intent" language into the statute as appellant
asks us to do in regard to Section 7.02(a)(2).  Rather, the Flanagan court eliminated
potential absurd results and conflicts in what constituted attempted crimes such as murder,
aggravated assault, etc., by concluding that in order for a defendant to be convicted of
attempted murder under Section 15.01, the "offense" which must have been specifically
intended by the accused was the offense of killing the intended victim.  See Flanagan, 675
S.W.2d at 742 (opinion on reh'g).  Flanagan is consistent with longstanding statutory
construction principles and reinforces our decision as set out hereafter. 
	At bottom, appellant asks us to construe Section 7.02(a)(2) to contain language
clearly not found in the statute.  He does not contend that the language of either Section
7.02(a)(2) or Section 19.02(b)(2) is ambiguous.  Nor does he contend that the application
of Section 7.02(a)(2) leads to absurd results when it is applied literally, as written by the
legislature, to Section 19.02(b)(2).  See Flanagan, 675 S.W.2d at 740-42.  
	We consider the language of the sections as written to be plain and unambiguous. 
We do not perceive the statutory language as leading to absurd results.  See Webb, 12
S.W.3d at 811.  Accordingly, we decline appellant's invitation to engraft new language
onto Section 7.02(a)(2) to require that a person must have specific intent to kill in order to
be criminally responsible for actions of another in committing murder as set out in Section
19.02(b)(2).  We conclude that the trial court did not err in failing to charge the jury that it
could find appellant criminally responsible for Tovar's death only if the jury found that
appellant had specific intent to kill Tovar.  We overrule appellant's first issue.     	

III.  LEGAL SUFFICIENCY OF THE EVIDENCE
	Appellant's second issue challenges the legal sufficiency of the evidence to prove
that he had specific intent to kill Tovar.  Because we have determined that proof of such
intent is not required under Section 7.02(a)(2) when applied to Section 19.02(b)(2), we
need not and do not address the second issue.  Tex. R. App. P. 47.1. 
IV.  CONCLUSION
	Having overruled appellant's first issue and having no necessity to address his
second issue, we affirm the judgment of the trial court.  

								Phil Johnson
								    Justice


Publish.


1. Tex. Penal Code §§ 19.02, 7.02 (Vernon 1999).  Further references to a section
of the Penal Code will be by reference to "Section_".


tyle="text-align: justify; line-height: 0.416667in; margin-bottom: 0.104167in">          Following presentation of the evidence, the jury returned a verdict of guilt as alleged
in each of the five indictments.  The jury then heard punishment evidence and assessed
punishment at eighty-five years for the aggravated sexual assault case, and twenty years
each for the two sexual assault cases and the two indecency cases.  The court sentenced
appellant accordingly, ordering the sentences to run concurrently.  This appeal followed.
Analysis
          Appellant contends, through one point of error, that the trial court erred in allowing
the State to introduce evidence of appellant’s extraneous conduct because it fell outside
the parameters of article 38.37 of the Code of Criminal Procedure or any exception under
Texas Rule of Evidence 404(b).
  Specifically, appellant contends the State failed to show
the relevance of the extraneous conduct evidence.
          We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion.  Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App. 1990) (op. on
reh’g).  Accordingly, we will not reverse a trial court’s ruling if it is within the “zone of
reasonable disagreement.”  Id. at 391. 
          On appeal, the State contends first that the testimony of which appellant apparently
complains referred to conduct like that alleged in the indictments and was not actually
extraneous offense evidence, and second that the testimony was not improperly admitted
even if it constituted evidence of extraneous offenses.  We agree with both the State’s
contentions.
          Because the trial court treated the objected-to testimony as evidence of extraneous
offenses, we address that theory first.  If the evidence of which appellant complains was
extraneous offense evidence, we find no error in its admission.  Article 38.37 of the Code
of Criminal Procedure applies to prosecutions for sexual offenses committed against a
child under seventeen years of age.  Tex. Code Crim. Proc. Ann. art. 38.37, § 1 (Vernon
2005).  Article 38.37 provides in part:
Notwithstanding Rule 404 and 405, Texas Rules of Criminal Evidence,
evidence of other crimes, wrongs, or acts committed by the defendant
against the child who is the victim of the alleged offense shall be admitted for
its bearing on relevant matters including: (1) the state of mind of the
defendant and the child; and (2) the previous and subsequent relationship
between the defendant and the child.
 
          It is undisputed appellant was on trial for crimes enumerated in section one of article
38.37 and that each of the victims was under the age of 17.  The challenged testimony by
the victims involved evidence of other crimes, wrongs, or acts committed by appellant
against them near the dates alleged in the indictments.
  Under the statutory provision, we
find their testimony was relevant to show appellant’s state of mind and the previous and
subsequent relationship between appellant and his three great-nephews. See DeLeon v.
State, 77 S.W.3d 300, 311 (Tex.App.–Austin 2001, pet. ref’d); McCoy v. State, 10 S.W.3d
50, 54 (Tex.App.–Amarillo 1999, no pet.); Hinds v. State, 970 S.W.2d 33, 35
(Tex.App.–Dallas 1998, no pet.).  See also Smith v. State, 5 S.W.3d 673, 678 n.10
(Tex.Crim.App. 1999) (contrasting language of article 38.37 with that of article 38.36(a));
Hinojosa v. State, 995 S.W.2d 955, 957 (Tex.App.–Houston [14th Dist.] 1999, no pet.)
(finding testimony concerning 520 extraneous acts against child were relevant to show the
state of mind of appellant and child and the previous and subsequent relationship between
appellant and child; evidence was relevant and did not violate rules 401 or 402).
          We also find, however, that the trial court was not required to treat the testimony as
presenting evidence of extraneous offenses.  The testimony of which appellant apparently
complains consists of instances of conduct purportedly outside the acts alleged in the
indictment.  However, each of the encounters testified to by each of the victims involved
conduct like that alleged in the indictments.  An extraneous offense is any act of
misconduct, whether resulting in prosecution or not, which is not shown in the charging
instrument and which was to have been committed by the accused.  Brown v. State, 6
S.W.3d 571, 575 (Tex.App.–Tyler 1999, no pet.), citing Hernandez v. State, 817 S.W.2d
744, 746 (Tex.App.–Houston [1st Dist.] 1991, no pet.).  It is permissible for the State to
present evidence of multiple occurrences of the acts alleged in the indictment, even if the
evidence shows that such acts were committed on different dates from the dates shown
in the indictment.  Id. 
 
          Thus, like the court in Brown, we find Vernon v. State, 841 S.W.2d 407
(Tex.Crim.App. 1992), on which appellant relies, distinguishable.  Brown, 6 S.W.3d at 575-76. Here, the five indictments charged appellant with causing the anus of F.A. to contact
the sexual organ of appellant, causing the sexual organ of appellant to penetrate the anus
of F.A., causing the penetration of the anus of D.A. by the sexual organ of appellant,
causing the anus of D.A. to contact the sexual organ of appellant, causing penetration of
the mouth of D.A. by the appellant’s sexual organ, causing the mouth of D.A. to contact the
sexual organ of appellant, engaging in sexual contact with D.A. by touching the genitals
of D.A., and engaging in sexual contact with S.A. by touching the genitals of S.A.  The acts
testified to by the victims during trial were multiple instances of this behavior on different
dates.  D.A. testified “they would always be the same things.”  In Vernon, because the
indictment charged the accused with digital penetration, not the prior acts of external
touching, those instances were extraneous.
  We thus find appellant’s reliance on Vernon
misplaced. See Holmes v. State, No. 05-03-00915-CR, 2004 WL 2804800
(Tex.App.–Dallas Nov. 30, 2004, no pet.) (mem. op., not designated for publication)
(applying Brown); Wilson v. State, No. 06-00-00008-CR, 2002 WL 992108
(Tex.App.–Texarkana May 16, 2002, no pet.) (mem. op., not designated for publication)
(distinguishing Brown and Vernon).
 
          Lastly, appellant appears to advance a challenge under Rule of Evidence 403.  We
find no abuse of discretion in the trial court’s evaluation of the balance between the
probative and prejudicial natures of the challenged testimony.  The challenged testimony
involved acts of the same nature as the charged offenses and was heard during the
victims’ testimony regarding the charged offenses.  See Montgomery , 810 S.W.2d at 390
(outlining factors for Rule 403 analysis).  The State’s need for the evidence, like that noted
by this Court in McCoy, 10 S.W.3d at 54, is difficult to assess empirically, but its prejudicial
effects did not substantially exceed its probative value.
          We overrule appellant’s issue, and affirm the trial court’s judgment in each of the
five causes.
 
                                                                           James T. Campbell
                                                                                    Justice



 
Do not publish.
 
 
          




 



