                                      COURT OF APPEALS
                                   EIGHTH DISTRICT OF TEXAS
                                        EL PASO, TEXAS


    ANGEL FLORES,                                        §              No. 08-18-00065-CR
                                    Appellant,           §                 Appeal from the
    v.                                                   §               120th District Court

                                                         §            of El Paso County, Texas
    THE STATE OF TEXAS,
                                                         §               (TC#20130D04898)
                                    Appellee.
                                                         §

                                              OPINION

         A jury found Appellant Angel Flores guilty on two counts of attempted capital murder

involving two separate victims. Based on the jury’s verdict, he was sentenced to two 25-year

prison terms (to run concurrently) and assessed the maximum possible fine. In three issues,

Appellant contends that (1) the evidence was legally insufficient to support the jury’s verdict, (2)

the abstract portion of the jury charge incorrectly instructed the jury that he could be convicted of

attempted capital murder without a finding of specific intent to kill his victims, and (3) charge

error caused him egregious harm.1 While we agree that the charge was erroneous, we conclude

that Appellant has not met the egregious harm standard, nor has he convinced us that the evidence



1
  Appellant was convicted in October 2014 but failed to file a timely appeal. However, on March 29, 2018, the
Texas Court of Criminal Appeals issued an order granting him the right to proceed with a late appeal.

                                                     1
is legally insufficient to support the conviction. Accordingly, we affirm.

                                    I. FACTUAL BACKGROUND

       In the early morning hours of August 4, 2013, the two victims, Joseph Vargas and Michael

Ramirez, were at Vargas’s house for a social gathering, along with several other individuals,

including Richard Arriaga and Vargas’s sister, Alicia Vargas. While gathered outside the house,

Vargas, Ramirez, and Arriaga observed a commotion involving an individual spray-painting

graffiti (“tagging”) at a nearby abutment to a bridge, followed by the sounds of a fight, and gunfire.

       Shortly thereafter, they observed two or three men running from the general direction of

the shooting and passing by the Vargas house. Moments later, they observed another set of three

men rapidly approaching the Vargas home, shouting that they believed the first set of men had

entered the Vargas house. The second set of men, one of whom was identified as Appellant, were

shouting, “VSM,” the name of a local street gang, and were asking who had “hit [them] up?”

Although Vargas and his friends told Appellant that they were not the men Appellant was looking

for, Appellant and his two compatriots continued to shout and act in an aggressive manner, causing

Vargas and his friends to retreat into the house. A family member called 911. Appellant and his

compatriots stayed outside the Vargas house for a short time, knocking on the door and continuing

to shout, but eventually they left the scene. But before leaving, one used a baseball bat to shatter

the window of a family member’s car that was parked outside the home.

       Shortly thereafter, the police arrived and observed the broken car window, the baseball bat,

and also the fresh graffiti. However, after being unable to locate the suspects, the police quickly

left. Minutes later, Appellant and the two other men returned to the Vargas house and once again

confronted Vargas and his friends. Throughout this second encounter, Appellant, who Ramirez

described as being the “lead” man, continued to yell “VSM,” and accused Vargas and his friends



                                                  2
of throwing rocks at his house and of disrespecting him. Once again, Vargas and his friends

attempted to tell Appellant that they were not the individuals he was looking for, and asked him to

leave, but Appellant refused and continued to act in an aggressive and threatening manner.

Vargas, Ramirez, and Arriaga thereafter retreated into the house for safety, but shortly thereafter,

Ramirez went back outside to try to reason with Appellant and to encourage him to leave.

Appellant, however, struck Ramirez in the face, apparently knocking him unconscious. Vargas,

Arriaga, and Alicia remained inside the house, but Vargas could see Appellant and his friends

severely beating Ramirez as he lay on the ground. They took turns stomping and jumping on his

face, which Vargas described this way: “all three of them used [Ramirez’s] head as a soccer ball.”

       Appellant and another of his compatriots then began pushing on the front door of the

Vargas house. Vargas, Arriaga, and Alicia tried to hold it shut. Appellant was eventually able

to enter the threshold of the house, and although Alicia tried to place herself between Appellant

and Vargas, Appellant reached over Alicia’s shoulders and punched Vargas in his face with his

fists. As Vargas attempted to defend himself, Alicia observed Appellant take something from

behind his back and swing at Vargas two times. Arriaga also observed Appellant swing at Vargas

in a “stabbing motion” three times, and immediately thereafter, both Arriaga and Alicia saw

Appellant holding a knife or “blade.” Although Vargas himself did not actually see the knife and

did not immediately realize that he had been stabbed, he and other witnesses in the house observed

blood squirting from his arm, and he later determined that he had been stabbed in both his arm and

his back.

       When told that police were on the way, Appellant and his compatriots ran from the

property. Alicia recalled that as they left, all three of them kicked Ramirez one last time. Alicia

heard Appellant say, “this is the last time that you f--ing disrespect my house. You [f--ing]



                                                 3
learned your lesson.         You don’t ever [f--ing] come around me like this.”                     Alicia placed a

tourniquet on Vargas’s arm to stop the bleeding, and after police and EMS arrived on the scene,

both Ramirez and Vargas were taken to the hospital for treatment.

                                       II. PROCEDURAL BACKGROUND

         Appellant was indicted on two counts of attempt to commit capital murder for the assaults

on Vargas and Ramirez. The indictment alleged that on or about August 4, 2013, Appellant

stabbed Joseph Vargas about his body with a deadly weapon, i.e., a knife, and that he kicked

Michael Ramirez about his head with a deadly weapon, i.e., his foot, with the specific intent in

both instances to commit the offense of capital murder, all while in the course of committing or

attempting to commit a burglary. A jury found Appellant guilty of both counts of capital murder,

and this appeal followed.2

                                            III. ISSUES ON APPEAL

         In his first two issues, Appellant contends that he was egregiously harmed by the jury

charge, asserting that it incorrectly instructed the jury that he could be convicted of attempted

capital murder without a finding that he had the specific intent to kill his victims. In his third

issue, Appellant contends that the evidence was legally insufficient to support the jury’s verdict.

We start our analysis with the third issue.




2
  Appellant was also charged in the indictment with four counts of engaging in organized criminal activity, but the
State later dismissed those charges. In addition, Appellant was charged with one count of burglary of a habitation,
alleging that he had entered the Vargas home with the intent to commit the felony offense of aggravated assault. After
Appellant was convicted of the attempted capital murder offenses, the trial court dismissed the burglary charge, finding
that it arose from the same incident.


                                                           4
                               IV. SUFFICIENCY OF THE EVIDENCE

       A. Standard of Review

       Due process as guaranteed through the Fourteenth Amendment requires that every

conviction must be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S.

307, 315-16 (1979); Brooks v. State, 323 S.W.3d 893, 917 (Tex.Crim.App. 2010). In a legal

sufficiency challenge, we focus solely on whether the evidence, when viewed in the light most

favorable to the verdict, would permit any rational jury to find the essential elements of the offense

beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 912 (establishing

legal insufficiency under Jackson v. Virginia as the only standard for review of the evidence).

       In applying that standard, we acknowledge that our system designates the jury as the sole

arbiter of the credibility and the weight attached to the testimony of each witness. Dobbs v. State,

434 S.W.3d 166, 170 (Tex.Crim.App. 2014). The jury also discharges the duty “to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007), quoting

Jackson, 443 U.S. at 319. In doing so, the jury may choose to believe or disbelieve that testimony.

Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008).              When the record supports

conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and

we defer to that determination. Dobbs, 434 S.W.3d at 170; see also Jackson, 443 U.S. at 319.

       Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone may be sufficient to establish guilt. Dobbs, 434 S.W.3d at 170.

Each fact need not point directly and independently to the guilt of the defendant, so long as the

cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id.

Nonetheless, juries are not permitted to come to conclusions based on “mere speculation or



                                                  5
factually unsupported inferences or presumptions.” Braughton v. State, 569 S.W.3d 592, 608

(Tex.Crim.App. 2018), quoting Hooper v. State, 214 S.W.3d 9, 15-16 (Tex.Crim.App. 2007).

       We remain mindful that “[t]here is no higher burden of proof in any trial, criminal or civil,

and there is no higher standard of appellate review than the standard mandated by Jackson.”

Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). However, “[w]e are not to sit as a thirteenth

juror reweighing the evidence or deciding whether we believe the evidence established the element

in contention beyond a reasonable doubt[.]”          Blankenship v. State, 780 S.W.2d 198, 207

(Tex.Crim.App. 1988) (en banc). Instead, “we test the evidence to see if it is at least conclusive

enough for a reasonable factfinder to believe based on the evidence that the element is established

beyond a reasonable doubt.” Id., citing Jackson, 443 U.S. at 318.

       B. The Hypothetically Correct Jury Charge

       We measure the sufficiency of the evidence to support a conviction against a hypothetically

correct jury charge.     Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).                A

hypothetically correct jury charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theory of liability, and adequately describes the offense for which the defendant was

tried. Id.; see also Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex.Crim.App. 2018).

       In this case, Appellant was charged with attempted capital murder. The Penal Code

provides that an individual commits the offense of murder one of two ways: (1) by intentionally

or knowingly causing the death of an individual; or alternatively, (2) by intending to cause serious

bodily injury and committing an act clearly dangerous to human life. TEX.PENAL CODE ANN.

§ 19.02(b)(1)(2). And the Penal Code provides that a person commits the offense of criminal

attempt “if, with specific intent to commit an offense, he does an act amounting to more than mere



                                                 6
preparation that tends but fails to effect the commission of the offense intended.” TEX.PENAL

CODE ANN. § 15.01(a). Because of the specific intent requirement for committing a criminal

attempt, the Court of Criminal Appeals has recognized that for attempted murder or attempted

capital murder, the State must prove that the defendant had the specific intent to kill his victims.3

See Flanagan v. State, 675 S.W.2d 734, 741 (Tex.Crim.App.1984) (op. on reh'g); see also Robbins

v. State, 145 S.W.3d 306, 309 (Tex.App.--El Paso 2004, pet. ref’d).                             Stated otherwise, a

conviction for attempted murder or attempted capital murder cannot be based on a defendant acting

with only an intent to cause serious bodily injury. If that were the case, the defendant’s only

offense would be aggravated assault. Flanagan, 675 S.W.2d at 741; Dovalina v. State, 564

S.W.2d 378, 386 (Tex.Crim.App. 1978) (en banc) (Odom, J., concurring) (if a defendant only

intended to cause his victim serious bodily injury, the offense is aggravated assault, not attempted

murder).

         C. Analysis

         Appellant contends that the State presented insufficient evidence to support an inference

that he had the specific intent to kill his two victims, and that, at most, the evidence only gives rise

to an inference that he intended to cause his victims serious bodily injury. In support of this

argument, Appellant contends that the State did not present any direct evidence of his intent to kill

his victims, such as a hostile pre-existing relationship, or that he made any statements during the

assaults indicating an intent to kill anyone. We note, however, that the State is not required to

produce direct evidence of a defendant’s culpable mental state in order to sustain a conviction.


3
  As part of the attempted capital murder charge, as set forth in the indictment, the State was also required to prove
that Appellant was engaged in a burglary at the time of the attempted murder. See TEX.PENAL CODE ANN.
§ 19.03(a)(2) (a person commits capital murder if he “intentionally commits the murder in the course of committing
or attempting to commit . . . burglary . . . .”). On appeal, Appellant does not dispute that he was engaging in a burglary
at the time that he assaulted his victims, and instead his sole focus is on whether the evidence was sufficient to allow
a rational jury to conclude that he had the specific intent to kill his victims.

                                                            7
See Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002). Instead, the requisite culpable mental

state is almost always proved circumstantially. See Hernandez v. State, 819 S.W.2d 806, 810

(Tex.Crim.App. 1991) (en banc).

        Further, in deciding whether a defendant had the requisite intent to kill a victim, the jury

may use its collective common sense and may apply common knowledge and experience.

Robbins, 145 S.W.3d at 309, citing Brown v. State, 122 S.W.3d 794, 800 (Tex.Crim.App. 2003).

A jury may infer intent from any facts that tend to prove its existence, including “the acts, words,

and conduct of the accused, and the method of committing the crime and from the nature of wounds

inflicted on the victims.” Hart, 89 S.W.3d at 64, quoting Manrique v. State, 994 S.W.2d 640, 649

(Tex.Crim.App. 1999) (en banc) (citations omitted); see also Guevara v. State, 152 S.W.3d 45, 50

(Tex.Crim.App. 2004). However, while the jury may consider statements made by the defendant

in order to infer his intent, there is no requirement that the defendant must have verbalized his

intent to kill his victim in order to support a finding that he harbored the requisite intent. See,

e.g., Graham v. State, No. 08-13-00115-CR, 2016 WL 1253460, at *4 (Tex.App.--El Paso

March 30, 2016, no pet.) (not designated for publication) (recognizing that there is no requirement

that the “specific intent to kill must be supported in every case by evidence that the defendant . . .

verbalized his intent to kill”).

        Importantly, the jury may infer that the defendant had an intent to kill his victim from his

use of a deadly weapon, “unless in the manner of its use it is reasonably apparent that death or

serious bodily injury could not result.” Godsey v. State, 719 S.W.2d 578, 581 (Tex.Crim.App.

1986) (en banc); see also Cavazos v. State, 382 S.W.3d 377, 384 (Tex.Crim.App. 2012). In fact,

the Court of Criminal Appeals has recognized that “[i]f a deadly weapon is used in [a] deadly




                                                  8
manner, the inference is almost conclusive that he intended to kill.”4 Godsey, 719 S.W.2d at 581;

see also Morrison v. State, 480 S.W.3d 647, 665 (Tex.App.--El Paso 2015, no pet.) (recognizing

that “[e]vidence that a defendant has used a deadly weapon in this manner, overwhelmingly, if not

conclusively, establishes that the defendant is in fact guilty of murder”). Certain weapons, such

as firearms and other weapons manifestly designed, made or adapted for the purpose of inflicting

death or serious bodily injury, are considered deadly weapons per se, but the Penal Code also

provides that a deadly weapon can be anything that is “manifestly designed, made, or adapted for

the purpose of inflicting death or serious bodily injury; or . . . anything that in the manner of its

use or intended use is capable of causing death or serious bodily injury.”5 TEX.PENAL CODE ANN.

§ 1.07(a)(17); see also Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App. 1983) (discussing the

distinction between the two categories of deadly weapons).                        When determining whether a

particular object was used as a deadly weapon, we may consider both the acts of the defendant, as

well as the extent of the injuries suffered by the victim. See Lane v. State, 151 S.W.3d 188, 192

(Tex.Crim.App. 2004); Turner, 664 S.W.2d at 90.

                  1. The Attack on Vargas

         We first consider whether Appellant used a deadly weapon when he stabbed Vargas with

a knife. Although a knife is not considered a deadly weapon per se, it can be considered a deadly



4
  Appellant contends that the “use of a deadly weapon in and of itself will not support proof of a specific intent to
murder,” citing to Brown v. State, 657 S.W.2d 143, 145 (Tex.Crim.App. 1983). Appellant is correct in the sense that
a defendant’s use of a deadly weapon will only support an inference of an intent to kill if the defendant used the
weapon in a deadly manner. Thus, in Brown, the Court held that it could not presume that a defendant had the intent
to kill his victim based solely on the fact that he shot a gun into a home. However, the court noted that the defendant’s
intent to kill his victim could be inferred, in part, from the fact that he knew or should have known that the victim was
inside the house. Id. at 144-145. As such, the holding in Brown is consistent with the general principle that a jury
may infer a specific intent to kill in situations in which the defendant used a weapon in a deadly manner.
5
  In turn, section 1.07(a)(46) of the Penal Code provides that “‘serious bodily injury’ means bodily injury that creates
a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ.” TEX.PENAL CODE ANN. § 1.07(a)(46).

                                                           9
weapon, depending on either its design or usage. See, e.g., Thomas v. State, 821 S.W.2d 616, 620

(Tex.Crim.App. 1991) (en banc); Iglesias v. State, 564 S.W.3d 461, 466 (Tex.App.--El Paso 2018,

no pet.). In the present case, witnesses observed Appellant take two or three swings at Vargas

with a knife, stabbing him twice, once in the back and once in the arm. Although the medical

records that were introduced into evidence indicated that the wound to Vargas’s back was

superficial, the knife hit a main artery in Vargas’s arm, which caused him significant blood loss

and required him to undergo surgery to graft a vein from his thigh into his arm. As well, Vargas

testified that because of the significant amount of blood that he lost before arriving at the hospital,

he has suffered lasting nerve damage to his arm that interferes with his daily functions.

Accordingly, given the manner in which Appellant used the knife to stab Vargas, combined with

the extent of his injuries, the jury could have rationally inferred that Appellant used the knife as a

deadly weapon during his attack on Vargas, and that he therefore had the specific intent to kill

Vargas. See, e.g., Ex parte Adams, 586 S.W.3d 1 (Tex.Crim.App. 2019) (recognizing that the

issue of whether defendant used a deadly weapon could not “rationally be in dispute” where

defendant swung a knife at his victim, witnesses observed him stab the victim, and the victim was

in fact stabbed).

               2. The Attack on Ramirez

       We next consider whether Appellant used his foot as a deadly weapon during his attack on

Ramirez. It is well-established that while a foot is not a deadly weapon per se, it can become a

deadly weapon if in the manner of its use it is capable of causing death or bodily injury. See, e.g.,

Powell v. State, 939 S.W.2d 713, 717 (Tex.App.--El Paso 1997, no pet.); see also Lane, 151

S.W.3d at 191. In this case, the record demonstrates that after Appellant punched Ramirez in his

face, knocking him unconscious, Appellant and his compatriots repeatedly used their feet to kick



                                                  10
and stomp on Ramirez’s head, and even used a vehicle parked nearby as leverage to add to the

impact as they kicked him. When police arrived, they found Ramirez in “agonizing pain,” and

photos of his face demonstrated that he had been severely beaten in the attack to the point that his

face was barely recognizable. The State also introduced evidence of Ramirez’s medical records

that showed he suffered a concussion, a contusion of his eyeball, an orbital fracture of his left eye

socket, a small left medial wall fracture, a hematoma, and a lacerated lip. Given the manner in

which Appellant used his feet to assault Ramirez, together with the extent of Ramirez’s injuries, a

rational jury could have inferred that Appellant used his feet as a deadly weapon during his attack

on Ramirez, and that he therefore had the specific intent to kill Ramirez. See, e.g., Powell, 939

S.W.2d at 718-19 (record supported an inference that defendant used his foot as a deadly weapon,

where he violently kicked his victim in the head with enough force to raise his head off the ground

and to cause a concussion); see also Roberson v. State, 144 S.W.3d 34, 38-40 (Tex.App--Fort

Worth 2004, pet. ref'd) (jury could have inferred that defendant had the specific intent to kill his

victim, where he knocked victim to the floor and stomped on the left side of victim’s head with

his foot, using a chair for leverage).

         Despite the above, Appellant contends that the evidence was insufficient to support an

inference that he intended to kill either of his victims, because the State failed to introduce any

medical evidence to establish that the lives of either Vargas or Ramirez were ever in danger. We

note, however, that no such evidence is required to sustain a conviction for attempted murder. To

the contrary, “attempted murder does not require that the victim sustain a life-threatening injury,

but rather, that the actor intended to bring about the desired result.”6 Fulford v. State, No. 05-10-


6
  In fact, the offense of attempted murder does not require the State to prove that the victim suffered any actual
physical harm. The fact that a victim may have been able to successfully defend himself against a defendant’s attack
does not negate an intent to kill, as it would be a “dismal day for victims [if a court] required actual harm to occur
before a defendant’s murderous intent could be inferred.” Moreno v. State, 755 S.W.2d 866, 869-70 (Tex.Crim.App.

                                                         11
00820-CR, 2012 WL 752623, at *2-3 (Tex.App.--Dallas Mar. 8, 2012, no pet.) (not designated for

publication); see also Roberson, 144 S.W.3d at 39 (recognizing that the State is not required to

prove severe bodily injury as an element of attempted murder).

        Accordingly, given the nature of Appellant’s attacks on his victims, and in particular, his

use of a deadly weapon during the course of those attacks, we conclude that a rational trier of fact

could have inferred that Appellant had the specific intent to kill both of his victims.

        Appellant’s Issue Three is overruled.

                                       V. CHARGE ERROR

        In Issues One and Two, Appellant contends that the jury charge erroneously defined the

offense of attempted capital murder in a manner that would have allowed the jury to convict him

of attempted capital murder without finding that he had the specific intent to kill his victims, and

that he was egregiously harmed by the error.

        A. Standard of Review

        When analyzing claimed error in a jury charge, we utilize a two-pronged test. Ngo v.

State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005) (en banc); Almanza v. State, 686 S.W.2d 157,

171 (Tex.Crim.App. 1984) (en banc). The first prong requires us to determine whether error

exists. Ngo, 175 S.W.3d at 743. If no error is found, then the analysis ends; however, if charge

error is found, the error is analyzed for harm. Almanza, 686 S.W.2d at 171.

        The amount of harm necessary to warrant a reversal depends on whether the accused

objected to the jury charge, and thereby preserved the error. Ngo, 175 S.W.3d at 743; Almanza,

686 S.W.2d at 171; see also Neal v. State, 256 S.W.3d 264, 278 (Tex.Crim.App. 2008). If the

error was preserved by a timely objection, we review the record to determine if the error caused



1988) (en banc).

                                                 12
the accused “some harm.” Ngo, 175 S.W.3d at 743; Almanza, 686 S.W.2d at 171. However, if

no objection was lodged, as Appellant concedes here, we review the unpreserved jury-charge error

for egregious harm.     Almanza, 686 S.W.2d at 171.         Egregious harm is actual, rather than

theoretical harm, and must be of such a nature that it affected the very basis of the case, deprived

the accused of a fair and impartial trial, or otherwise vitally affected the accused’s defensive theory

at trial. See Villarreal v. State, 453 S.W.3d 429, 433 (Tex.Crim.App. 2015); Cosio v. State, 353

S.W.3d 766, 777 (Tex.Crim.App. 2011). “Egregious harm is a ‘high and difficult standard’ to

meet, and such a determination must be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d

at 433, quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex.Crim.App. 2013). In making an

egregious harm determination, we examine: (1) the entire charge; (2) the state of the evidence,

including contested issues and the weight of the evidence; (3) arguments of counsel; and (4) any

other relevant information revealed by the record of the trial as a whole. See Allen v. State, 253

S.W.3d 260, 264 (Tex.Crim.App. 2008).

               1. Error in the Jury Charge

       As explained above, although the offense of murder may be committed with either a

specific intent to kill or with the intent to cause an individual serious bodily injury, the offense of

attempted murder requires a specific intent to kill the victim. Accordingly, the jury may not

convict a defendant of attempted murder based solely on a finding that he had the intent to cause

serious bodily injury to his victim. Flanagan, 675 S.W.2d at 741; see also Robbins, 145 S.W.3d

at 309. Appellant points out that the abstract portion of the jury charge instructed the jury on both

definitions of murder as follows:

       Our law provides that a person commits the offense of murder when he intentionally
       or knowingly causes the death of an individual; or if he intends to cause serious
       bodily injury and intentionally or knowingly commits an act clearly dangerous to



                                                  13
       human life that causes the death of an individual during the same criminal
       transaction [emphasis added].

The charge then defined the offense of attempt as follows:

       A person attempts to commit 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.

       Appellant argues that when the instructions are read together, the jury was effectively

instructed that it could convict him of attempted capital murder if it found that he only harbored

an intent to cause his victims serious bodily injury. A proper jury charge, however, should only

define murder as requiring a specific intent to kill, thereby making it clear to the jury that it could

only convict him of attempted capital murder if it found that he had the requisite intent to kill his

victims.

       The State does not contest this point, and we agree with Appellant that in an attempted

murder case, the jury charge should define murder using only the “specific intent to kill” definition,

and should not include any surplus reference to the alternative definition of murder in which a

defendant may commit the offense with only an intent to cause his victim serious bodily injury.

See White v. State, 642 S.W.2d 238, 240 (Tex.App.--Houston [14th Dist.] 1982, no pet.) (trial court

incorrectly included both definitions of murder in the jury charge in an attempted murder case).

However, because Appellant did not object to this portion of the jury charge, we next consider

whether Appellant suffered any egregious harm as the result of this error.

               2. Egregious Harm Analysis

       We first consider the jury charge as a whole in determining whether Appellant was

egregiously harmed by the error in the abstract or definitional portion of the jury charge. Allen,

253 S.W.3d at 264. The application part of the charge made it clear to the jury that it could only




                                                  14
convict Appellant of attempted capital murder if it found beyond a reasonable doubt that that he

had the intent to kill his victims:

        If you find from the evidence beyond a reasonable doubt that on or about the 4th day
        of August, 2013 in El Paso County, Texas, [Appellant] did then and there, with the
        specific intent to commit the offense of capital murder, intentionally or knowingly
        while in the course of committing or attempting to commit the offense of burglary,
        attempt to cause the death of Joseph Vargas, an individual, by stabbing Joseph
        Vargas about the body with a deadly weapon, to-wit: a knife, said act amounting to
        more than mere preparation that tended but failed to effect the commission of the
        offense intended and the said defendant, [Appellant], did then and there use or
        exhibit a deadly weapon, to-wit: a knife, that in the manner of its use or intended
        use was capable of causing death or serious bodily injury during the commission of
        or immediate flight from said felony offense [emphasis added].

        If you find from the evidence beyond a reasonable doubt that on or about the 4th
        day of August, 2013 in El Paso County, Texas, [Appellant] did then and there, with
        the specific intent to commit the offense of capital murder, intentionally or
        knowingly while in the course of committing or attempting to commit the offense of
        burglary, attempt to cause the death of Michael Ramirez, an individual, by kicking
        Michael Ramirez about the head with a deadly weapon, to-wit: a foot, said act
        amounting to more than mere preparation that tended but failed to effect the
        commission of the offense intended and the said defendant, [Appellant], did then
        and there use or exhibit a deadly weapon, to-wit: a foot, that in the manner of its
        use or intended use was capable of causing death or serious bodily injury during
        the commission of or immediate flight from said felony offense [emphasis added].

        When, as here, the application portion of a jury charge correctly instructs the jury on the

required elements of the charged offense, any error in the abstract or definitional portion of the

charge is not considered egregious. See, e.g., Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App.

1999) (en banc); Patrick v. State, 906 S.W.2d 481, 493 (Tex.Crim.App. 1995) (en banc). This is

because the application paragraph of a jury charge, which is the “heart and soul” of the charge,

“explains to the jury, in concrete terms, how to apply the law to the facts of the case.” Whitington

v. State, No. 08-13-00102-CR, 2015 WL 3653326, at *8 (Tex.App.--El Paso Apr. 24, 2015, pet.

ref’d), citing Vasquez v. State, 389 S.W.3d 361, 367 (Tex.Crim.App. 2012); Yzaguirre v. State,

394 S.W.3d 526, 530 (Tex.Crim.App. 2013); In re I.L., 389 S.W.3d 445, 453-4 (Tex.App.--El Paso



                                                15
2012, no pet.) (finding that error in the abstract portion of the jury charge incorrectly defining the

requisite mental state did not cause egregious harm where the application paragraph correctly

pointed the jury to the correct mental state required). In other words, it is “the application

paragraph of the charge, not the abstract portion, that authorizes a conviction.” Whitington, 2015

WL 3653326, at *8.

       At least two of our sister courts have recognized, even if the abstract portion of a jury

charge in an attempted murder case incorrectly includes the definitions of both forms of murder,

i.e., specific intent murder and murder with the intent to cause serious bodily injury, any such error

is cured by an appropriate application paragraph instructing the jury that it may only convict the

defendant if it finds that he had the requisite intent to kill his victim. See Kolar v. State, 705

S.W.2d 794, 798 (Tex.App.--Houston [1st Dist.] 1986, no pet.); White, 642 S.W.2d at 240-42.

Accordingly, we conclude that any error in the abstract portion of the jury charge in Appellant’s

case was cured by the application portion of the charge, which made it clear to the jury that it could

only convict him of attempted capital murder if it found that he had the intent to kill his victims.

       Although our analysis may stop here, we note that two of the other harm factors--the state

of the evidence and the arguments of counsel--also cut against egregious harm. First, the record

contains ample evidence from which the jury could have inferred that Appellant acted with an

intent to kill his victims. As set forth above, the evidence demonstrated that Appellant engaged

in a protracted attack on both Ramirez and Vargas, using deadly weapons in both instances, and

that Appellant only stopped his attack when he was informed that the police were on their way.

See, e.g., Kolar, 705 S.W.2d at 794 (evidence of defendant’s use of a deadly weapon, which

allowed the jury to infer his intent to kill, was a factor in determining that any error in the jury




                                                 16
charge defining the requisite intent necessary to convict the defendant of attempted murder did not

cause the defendant egregious harm).

         In addition, although the prosecutor admittedly referred to both definitions of murder

during voir dire and during her closing argument, she nevertheless emphasized throughout both

phases of trial that the offense of murder, and the offense of attempted murder in particular,

requires an “intent to kill.” 7         In addition, throughout her closing argument, the prosecutor

repeatedly pointed out to the jury that the evidence established that Appellant had attacked his

victims in such a manner that there could be no doubt that he harbored the intent to kill them.

Based on the above, we conclude that Appellant was not egregiously harmed by any error in the

jury charge.

         Appellant’s Issues One and Two are overruled.

                                              VI. CONCLUSION

         Finding sufficient evidence to support Appellant’s conviction and finding no egregious

error in the jury charge, the trial court’s judgment is affirmed.


                                                       JEFF ALLEY, Chief Justice
December 30, 2019

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




7
  Appellant’s attorney did not focus on the issue of Appellant’s intent, and instead, primarily argued that the evidence
was insufficient to place Appellant at the scene of the crime, noting that he had alibi witnesses who testified that he
was at a party the night of the offense, and that there was insufficient evidence to support an inference that he had
actually entered Vargas’s residence at the time the assaults took place, thereby suggesting that no burglary took place.

                                                          17
