                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                              '
 DEBORAH MALONE WILSON,                                      No. 08-11-00042-CR
                                              '
                       Appellant,                                Appeal from
                                              '
 v.                                                           355th District Court
                                              '
 THE STATE OF TEXAS,                                        of Hood County, Texas
                                              '
                       Appellees.             '                (TC # CR11442)

                                        OPINION

       Deborah Malone Wilson is appealing her conviction of murder. A jury found Appellant

guilty and assessed her punishment at imprisonment for ninety-nine years. We affirm.

                                    FACTUAL SUMMARY

       Appellant lived on property adjoining property owned by her eighty-two-year-old father,

George Malone, and her brothers, David Malone, and Danny Malone.            George’s attorney,

Andrew Ottaway, had represented George for approximately twenty years. George owned

property in the River Run subdivision and he deeded portions of the property to his children,

including Appellant, David, and Danny. Ottaway prepared the deeds. Ottaway characterized

Danny as the peacemaker in the family, but Danny had been convicted of a felony DWI and

incarcerated.   When asked whether the Malones needed a peacemaker, Ottaway answered

affirmatively and said: “They were a scrappin’ bunch.” When asked to explain what he meant,

Ottaway testified: “They were rough people, they drink a little too much, and it got sideways

sometimes.” Ottaway saw the relationship between George, David, and Appellant deteriorate

after Danny became incarcerated.     With Ottaway’s assistance, Danny revoked a power of

attorney he had given to Appellant and he instead gave his father power of attorney. This had
the effect of cutting off Appellant’s access to Danny’s finances. Part of the family dispute also

stemmed from George’s threats to cut off the water to David’s and Appellant’s homes because

he was angry they were not paying him for their share of the water.

       During the summer of 2009, George spoke to Ottaway about obtaining a family violence

protective order. After filing the application on August 10, 2009, Ottaway initially had difficulty

getting a hearing date, so he spoke with Appellant and David at his office in an effort to resolve

the situation.   David indicated that he would sign an agreed mutual protective order but

Appellant was unhappy and did not want to sign anything without studying it first. When David

and Appellant did not sign the agreed protective order, Ottaway increased his efforts to get a

hearing date because he saw the dispute “escalating.” A process server, Randy Jaquess, served

the application on Appellant and David on August 14, 2009. The county court at law set a

hearing for October 7, 2009. In early September 2009, Yates Malone, one of Appellant’s

brothers, had a conversation with her. Yates described her as being irate about issues she had

with their father. Appellant knew that George had filed an application for a protective order.

Appellant told Yates that her father “just needed to die.”

       Tyler Dempsey is a neighbor of George Malone and the other Malone family members.

He frequently saw George working around the property and in the vegetable garden. Dempsey

knew that Appellant had a “rocky” relationship with her father as he had observed her cursing at

George and making obscene gestures. On September 28, 2009, Dempsey and his mother were

sitting on their porch when they saw two people rolling around on the ground in the vegetable

garden. Appellant held George by the shoulders while David kicked him in the head. Dempsey

did not want to get involved at first, so he just watched. But when he saw David Malone kick

George in the head like a person kicking a football, Dempsey ran over to the garden while his



                                                -2-
mother called 911. Even after George went limp from the blow, Appellant held George and

David kicked him in the head a second time. As Dempsey ran to the garden, he saw some men

who were installing a septic system and asked them for help. When Dempsey got to the garden,

he saw that Appellant and George were on the ground. Appellant had her arms wrapped around

George’s legs and George was holding her by the hair with his arms outstretched as though he

was attempting to push her away from him. Dempsey screamed at them to let go of each other

and they did. Law enforcement officers and emergency medical personnel arrived a short time

later. In addition to several head wounds, George also had fresh bite marks on his back, arm,

leg, and ear and gouging injuries on his shoulder consistent with injuries caused by fingernails.

Mary Gerdes, a volunteer EMT, asked George what had caused the injuries and he said that

Appellant had bit and kicked him. Appellant and David were taken into custody. Appellant,

who was covered in George’s blood, repeatedly stated that she had beaten her father and she

hoped that he died.       Although George was airlifted from the scene and received medical

treatment, he died from traumatic brain injury.

        A grand jury returned a three-count indictment against Appellant charging her with

murder (Count I), serious bodily injury to an elderly person (Count II), and bodily injury to an

elderly person (Count III). The State later dismissed Counts II and III and tried the murder count

to a jury. The jury charge included instructions on self-defense and the law of parties. The jury

rejected Appellant’s claim of self-defense and convicted her of murder as alleged in the

indictment.1 Appellant raises eight issues on appeal.

                                 DENIAL OF CONFRONTATION

        In her first two issues, Appellant alleges that the admission of evidence violated her right

1
  A jury also convicted David Malone of George Malone’s murder and the Second Court of Appeals affirmed that
conviction. Malone v. State, Cause No. 02-10-00436-CR, 2011 WL 5118820 (Tex.App.--Fort Worth Oct. 27, 2011,
no pet.).

                                                   -3-
of confrontation guaranteed by the Sixth Amendment and Article I, Section 10 of the Texas

Constitution. Appellant has not shown that Article I, Section 10 provides greater protection than

the Sixth Amendment. Therefore, we will not review Appellant’s claim of state constitutional

error and will restrict our analysis to the Sixth Amendment. See Lagrone v. State, 942 S.W.2d

602, 612 (Tex.Crim.App. 1997)(declining to address claim of state constitutional error where the

appellant failed to show that the Texas Constitution provides greater protection than the Fifth

Amendment).

                             Applicable Law and Standard of Review

       The Sixth Amendment’s Confrontation Clause provides that an accused has the right, in

all criminal prosecutions, to be confronted with the witnesses against him. U.S.CONST. AMEND.

VI. In accordance with this right, the admission of out-of-court statements offered against the

accused that are “testimonial” in nature are objectionable unless the prosecution can show that

the out-of-court declarant is presently unavailable to testify in court and the accused had a prior

opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354,

1374, 158 L.Ed.2d 177 (2004); Langham v. State, 305 S.W.3d 568, 575 (Tex.Crim.App. 2010);

King v. State, 189 S.W.3d 347, 358 (Tex.App.--Fort Worth 2006, no pet.). The United States

Supreme Court has identified three kinds of out-of-court statements that could be regarded as

testimonial:

   (1) ex parte in-court testimony or its functional equivalent--that is, materials such as
       affidavits, custodial examinations, prior testimony that the accused was unable to cross-
       examine, or similar pre-trial statements that declarants would reasonably expect to be
       used prosecutorially;

   (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits,
       depositions, prior testimony, or confessions; and

   (3) statements that were made under circumstances which would lead an objective witness
       reasonably to believe that the statement would be available for use at a later trial.

                                               -4-
Langham, 305 S.W.3d at 576; Wall v. State, 184 S.W.3d 730, 734-35 (Tex.Crim.App. 2006),

quoting Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364.

       Generally, we review a trial court’s decision on the admission of evidence for an abuse of

discretion. Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App. 2001). Whether a particular out-

of-court statement is testimonial is a question of law.           Langham, 305 S.W.3d at 576.

Consequently, we will defer to the trial court’s resolution of credibility issues and historical

facts, but we will review de novo the ultimate constitutional question of whether the facts as

determined by the trial court establish that an out-of-court statement is testimonial. Id.

                            George Malone’s Out-of-Court Statement

       In her first issue, Appellant contends that the admission of George’s application for a

protective order violated her right of confrontation. The trial court admitted into evidence, over

Appellant’s objection based on the Confrontation Clause, George Malone’s application for a

protective order (State’s Exhibit 64) which stated as follows:

              George Malone, Applicant, asks for a protective order and would show the
       Court the following:

               Applicant lives at 7912 River Run, Granbury, Texas 76049.

               Deborah Ann Malone lives in River Run, Granbury, Texas, on a street
       with no address, across the street from 7912 River Run where she can be served
       with citation.

              David Lee Malone lives in River Run, address 7908 River Run, Granbury,
       Texas, where he can be served with citation.

             David Lee Malone and Deborah Ann Malone are children of George
       Malone. George Malone gave them the property next door to him to build their
       homes on, and they both live next door to him.

              Every few days, Deborah Ann Malone and David Lee Malone come to the
       home of George Malone, drinking, and causing trouble, and they take things from
       his property. Applicant seeks a protective order keeping them away from the

                                                -5-
       property, and away from him.

               Most recently, on August 6, 2009, George Malone was mowing a lot in
       River Run. Deborah Ann Malone came close to George Malone, holding a long
       neck beer bottle, yelling at George Malone something he could not understand.
       Later in the day, she came to the property next door to him and started breaking
       limbs off of a pecan tree. She drove her car from her house to the trailer next to
       George Malone’s house, driving back and forth, driving real slow. George
       Malone called the sheriff’s department, but they could not get her to come to the
       door. As soon as the deputy left, Deborah Ann Malone came back out of her
       house.

              David Lee Malone was with Deborah Ann Malone some of the time on
       August 6, 2009, yelling, trying to get George Malone to respond. George Malone
       would not get off of his lawn mower, and refused to confront him.

               Today, as George Malone left his home to come to apply for this
       protective order, Deborah Ann Malone was sitting out in her yard, and she made
       obscene gestures toward him as he drove away.

              Wherefore, premises considered, George Malone requests that the Court
       order Deborah Ann Malone and David Lee Malone to appear and answer, and that
       upon hearing the Court make orders preventing them from:

               Committing family violence;

             Communicating in a threatening or harassing manner with George
       Malone;

               Engaging in conduct directed toward George Malone that is reasonably
       likely to harass, annoy, alarm, abuse, torment, or embarrass him.

The application is signed by George’s attorney, Andrew Ottaway, and the statements of fact

contained within the application are sworn to by George. A process server, Randy Jaquess,

served the application on Appellant and David on August 14, 2009. When the application was

admitted, the trial court, at the State’s request, instructed the jury that the application was not

introduced to prove the truth of the matter asserted in that document but to show the state of

mind of Appellant and her brother, David.

       We do not understand Appellant to argue that the trial court erred by admitting any



                                               -6-
evidence that George had filed an application for a protective order, but rather, she complains

about the allegations of fact contained within that application. The application, State’s Exhibit

64, contains numerous allegations of fact verified by George. While Appellant objected to the

introduction of State’s Exhibit 64, she did not continuously object each time the State offered

evidence establishing at least some of the same facts contained within the application. To

preserve error, a party must continue to object each time inadmissible evidence is offered or

obtain a running objection. Lane v. State, 151 S.W.3d 188, 193 (Tex.Crim.App. 2004). Error in

the admission of evidence is cured where the same evidence comes in elsewhere without

objection. Id.

       The State introduced other evidence establishing that George gave Appellant and David

the property on which they lived and the relationship of the parties. Andrew Ottaway testified

regarding the volatile nature of the family relationship and the ongoing dispute between George

and Appellant which preceded George’s murder.           Ottaway also testified about filing the

application for a protective order and what George wanted to achieve by filing it, namely, for

Appellant and David to leave him alone. A neighbor, Tyler Dempsey, testified that he had

observed Appellant giving George “the finger” and directing inappropriate language toward him.

We conclude that Appellant failed to preserve her complaint regarding the admission of the

portions of State’s Exhibit 64 regarding these facts. Appellant did preserve her complaint

regarding the portion of State’s Exhibit 64 setting forth her specific conduct committed on

August 6, 2009, namely, she yelled at George while holding a beer bottle, broke limbs off of a

pecan tree, and drove slowly back and forth in front of his property. We conclude that this

portion of the application is testimonial under Crawford because it is the functional equivalent of

in-court testimony that a declarant would reasonably expect to be used in the prosecution of a



                                               -7-
request for a protective order. This does not end our inquiry because the Supreme Court noted in

Crawford that the Confrontation Clause does not bar the use of testimonial statements offered for

purposes other than establishing the truth of the matter asserted. Crawford, 541 U.S. at 59 n.9,

124 S.Ct. at 1369, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425

(1985). When the relevance of an out-of-court statement derives solely from the fact that it was

made, and not from the content of the assertion it contains, there is no constitutional imperative

that the accused be permitted to confront the declarant. Langham, 305 S.W.3d at 576.

       The State argues on appeal, as it did in the trial court, that it did not offer the application

to prove the truth of the factual allegations contained therein but to show that Appellant had

notice that her father did not want her on his property, he did not want her to threaten him, and

he did not want her to commit acts of family violence against him. Under this theory, the

relevance of State’s Exhibit 64 derives solely from the fact that George filed the application

containing these allegations and a process server served the application on Appellant. Stated

differently, the State did not offer State’s Exhibit 64 to prove that Appellant yelled at George

while holding a beer bottle, broke limbs off a pecan tree, or drove slowly in front of his property.

We conclude that the admission of this exhibit did not violate Appellant’s right of confrontation.

       Even if the trial court erred, we would be required to determine whether the error is

harmless under the standard for constitutional error in TEX.R.APP.P. 44.2(a).            Under that

standard, we are required to reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.    See TEX.R.APP.P. 44.2(a).      The evidence at trial established that the family

members had a volatile relationship and there had been an ongoing dispute between Appellant

and her father over who should control Danny’s finances. There is also evidence that George



                                                -8-
filed an application for a protective order against Appellant and David in early August 2009.

George’s attorney attempted to secure an agreed mutual protective order by discussing the matter

with Appellant and David because he saw that the problem was escalating. A few weeks after

the protective order application was served on Appellant, she spoke with one of her brothers

about her dispute with their father and told him that George just needed to die.       The factual

statements contained within the application depict Appellant’s animosity towards her father and

her harassment of him but there is other evidence in the record establishing that this was the

nature of the relationship. Given this evidence in the record, we find beyond a reasonable doubt

that the admission of State’s Exhibit 64 did not contribute to Appellant’s conviction or

punishment. We overrule Issue One.

                                George’s Statement to Mary Gerdes

         In Issue Two, Appellant argues that the trial court abused its discretion by admitting the

testimony of Mary Gerdes. On September 28, 2009, Gerdes was working as a volunteer with

Pecan Planation EMS.        Gerdes had been an EMT for six years but she had become an

“intermediate” after receiving additional training. She and her partner were dispatched to the

scene of the assault involving George Malone. They arrived after the scene had been secured

and she began taking a medical history from George. When she asked George what was wrong

with him, he said “She bit me, and he kicked me.” The trial court overruled Appellant’s hearsay

and confrontation objections. Gerdes identified Appellant as the only female present at the

scene.

         In Issue One, we focused the analysis on the first category of testimonial evidence, but

this issue is related to the third category: statements that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be available for



                                                -9-
use at a later trial. George’s statement to Gerdes regarding the origin of his injuries was not

testimonial for purposes of the Confrontation Clause and Crawford. See Malone, 2011 WL

5118820 at *3. The primary purpose of this statement was not to provide testimony or develop

facts for later litigation but to provide information to medical personnel about the nature of the

injuries. See id. Viewed objectively, George’s statement to the EMT was made to enable

assistance to meet an ongoing medical emergency and not to establish or to prove past events

potentially relevant to later criminal prosecutions. Id., citing Davis v. Washington, 547 U.S. 813,

822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006). The trial court did not abuse its

discretion by overruling Appellant’s objection based on the Confrontation Clause. Issue Two is

overruled.

                            ADMISSION OF AUTOPSY PHOTOGRAPH

        In Issue Three, Appellant argues that the trial court abused its discretion by admitting

State’s Exhibit 60, a photograph of the victim’s brain taken during the autopsy, because the

probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

Relevant evidence is generally admissible, but it is properly excluded under Rule 4032 when its

probative value is substantially outweighed by the danger of unfair prejudice. TEX.R.EVID. 403;

Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). In keeping with the presumption of

admissibility of relevant evidence, trial courts should favor admission in close cases. Casey, 215

S.W.3d at 879; Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1991)(op. on reh’g).

        The term “probative value” refers to the inherent probative force of an item of evidence --

that is, how strongly it serves to make more or less probable the existence of a fact of


2
  Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence. TEX.R.EVID. 403.


                                                      - 10 -
consequence to the litigation -- coupled with the proponent’s need for that item of evidence.

Casey, 215 S.W.3d at 879; Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App. 2006).

When conducting the balancing test under Rule 403, the trial court determines whether the

probative value of the evidence is substantially outweighed by one of the following

countervailing considerations listed in the rule. Casey, 215 S.W.3d at 879. A trial court must

balance (1) the inherent probative force of the proffered item of evidence along with (2) the

proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision

on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the

main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not

been equipped to evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or repeat evidence

already admitted. Gigliobianco, 210 S.W.3d at 641-42.

       Relevant factors in determining whether the probative value of photographs is

substantially outweighed by the danger of unfair prejudice include the number of exhibits

offered, their gruesomeness, their detail, their size, whether they are in color or black-and-white,

whether they are close-up, whether the body depicted is clothed or naked, the availability of

other means of proof, and other circumstances unique to the individual case. Williams v. State,

301 S.W.3d 675, 690 (Tex.Crim.App. 2009). Autopsy photographs are generally admissible

unless they depict mutilation of the victim caused by the autopsy itself. Id. The admissibility of

photographs over an objection is within the sound discretion of the trial court. Davis v. State,

313 S.W.3d 317, 331 (Tex.Crim.App. 2010). Consequently, the trial court’s ruling on the

admissibility of photographs is reviewed under an abuse of discretion standard and will not be

disturbed on appeal unless it falls outside the zone of reasonable disagreement. Young v. State,



                                               - 11 -
283 S.W.3d 854, 874 (Tex.Crim.App. 2009).

       Dr. Shiping Bao, the Tarrant County Deputy Medical Examiner, testified regarding the

autopsy of the victim. State’s Exhibit 60 is a photograph of the victim’s brain after it was

removed from the body. It depicts a large 2.5 inch by 2.5 inch hemorrhage on the left occipital

lobe which caused a midline shift of the brain and resulted in the victim’s death. Dr. Bao

explained that the injury was caused by blunt force trauma to the victim’s head. Exhibit 60 is the

only photograph from the autopsy offered into evidence by the State. It has substantial probative

value because it depicted the fatal injury to the brain sustained during the assault as the result of

blunt force trauma to the head. Thus, the photograph assisted the jury in understanding the

nature of the injury and the cause of death. It is not excessively gruesome and there is nothing to

indicate that the jury would have given it undue weight. Likewise, the evidence would not have

caused the jury to make its decision on an improper basis. We conclude that the trial court did

not abuse its discretion by overruling Appellant’s Rule 403 objection and admitting the autopsy

photograph. See Davis, 313 S.W.3d at 331 (trial court did not abuse discretion by overruling

Rule 403 objection and admitting autopsy photograph depicting cross-section of victim’s tongue;

photograph was not excessively gruesome and was necessary to show an injury not otherwise

visible). We overrule Issue Three.

                               LESSER-INCLUDED OFFENSES

       In Issue Four, Appellant contends that the trial court erred by failing to instruct the jury

on the lesser-included offenses of criminally negligent homicide, manslaughter, and aggravated

assault. She admits that she did not request that the trial court include instructions on any of

these lesser-included offenses in the charge, but she argues, in effect, that the trial court had a

sua sponte duty to do so and the absence of these instructions caused egregious harm.



                                               - 12 -
          The trial judge has a duty to prepare a jury charge that accurately sets out the law

applicable to the specific offense charged. TEX.CODE CRIM.PROC.ANN. Art. 36.14 (West 2007);

Delgado v. State, 235 S.W.3d 244, 249 (Tex.Crim.App. 2007). The judge does not have a sua

sponte duty to instruct the jury on lesser-included offenses. Tolbert v. State, 306 S.W.3d 776,

780 (Tex.Crim.App. 2010); Delgado, 235 S.W.3d at 249.           Because Appellant did not request

these instructions, the trial court did not err by failing to include them in the charge. In the

absence of error in the charge, we do not review the charge for egregious harm under Almanza.3

Tolbert, 306 S.W.3d at 782; Posey v. State, 966 S.W.2d 57, 61 (Tex.Crim.App. 1998). Issue

Four is overruled.

                                            SUDDEN PASSION

          In Issue Five, Appellant asserts that she suffered egregious harm from the trial court’s

failure to instruct the jury on the issue of sudden passion in the punishment charge. Appellant

admits that she never requested that an instruction on sudden passion and the record reflects that

she did not object to the punishment charge.

          At the punishment stage of a murder trial, the defendant may raise the issue of whether he

caused the death under the immediate influence of sudden passion arising from an adequate

cause. TEX.PENAL CODE ANN. § 19.02(d)(West 2011); Swaim v. State, 306 S.W.3d 323, 324

(Tex.App.--Fort Worth 2009, pet. ref’d). If the defendant proves the issue in the affirmative by a

preponderance of the evidence, the offense is a felony of the second degree. TEX.PENAL CODE

ANN. § 19.02(d); Swaim, 306 S.W.3d at 324. The trial court is not required to instruct the jury

on the issue of sudden passion in the absence of a request by the defendant. Swaim, 306 S.W.3d

at 324. Issue Five is overruled.

                                     CONCURRENT CAUSATION
3
    Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984).

                                                     - 13 -
       In Issue Six, Appellant argues that the trial court erred by failing to instruct the jury on

the issue of concurrent causation. She concedes that she did not request an instruction on

concurrent causation. Section 6.04(a) of the Texas Penal Code provides that: “A person is

criminally responsible if the result would not have occurred but for his conduct, operating either

alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to

produce the result and the conduct of the actor clearly insufficient.” TEX.PENAL CODE ANN. §

6.04(a)(West 2011). The Fort Worth Court of Appeals has held that concurrent causation is

a defensive issue.    Oberlander v. State, No. 02-09-00395-CR, 2011 WL 1833097 at *3

(Tex.App.--Fort Worth 2011, pet. ref’d).        An unrequested defensive issue is not the law

applicable to the case. Id. A trial judge does not have a sua sponte duty instruct the jury on a

defensive issue. Delgado, 235 S.W.3d at 249. In the absence of a request by Appellant for this

instruction, the trial court did not err by failing to include it in the court’s charge. Issue Six is

overruled.

                             MANNER AND MEANS UNKNOWN

       In her seventh issue, Appellant contends that the trial court erred by including in the jury

charge an instruction which permitted the jury to find Appellant guilty under the third paragraph

of Count I because the trial court failed to conduct a hearing to determine if the manner and

means were still unknown. In support of this argument, she cites a decision of the Court of

Criminal Appeals which was withdrawn since Appellant filed her brief. Sanchez v. State, No.

PD-0961-07, 2010 WL 3894640 (Tex.Crim.App. Oct. 6, 2010). As this withdrawn decision was

the sole support for this part of her argument, we will not address it.

                                        Standard of Review

       In reviewing charge error, we must first determine whether error exists. Druery v. State,



                                                - 14 -
225 S.W.3d 491, 504 (Tex.Crim.App. 2007). If we find error, we must then determine whether

the error caused sufficient harm to require reversal.                 Id.    The standard of review differs

depending on whether the defendant made a timely objection at trial. See Bluitt v. State, 137

S.W.3d 51, 53 (Tex.Crim.App. 2004). If the error was the subject of a timely objection, reversal

is required if there is some harm to the defendant as a result of the error. See TEX.CODE

CRIM.PROC.ANN. art. 36.19 (West 2006); Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.

2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(op. on reh’g). If no proper

objection was made at trial, reversal is required only if the error is so egregious that the

defendant was denied a fair and impartial trial. See Ovalle, 13 S.W.3d at 786; Almanza, 686

S.W.2d at 171.

                                              Error in the Charge

         Consistent with the indictment, the charge permitted the jury to find Appellant guilty of

murder if it found beyond a reasonable doubt that she, either acting alone or with David Lee

Malone as a party to the offense:

    1. intentionally or knowingly caused the death of George Earl Malone by kicking and
       striking George Earl Malone in the head;

    2. intentionally, with intent to cause serious bodily injury to George Earl Malone,
       committed an act clearly dangerous to human life, namely kicking and striking George
       Earl Malone in the head, which caused the death of George Earl Malone; or

    3. intentionally, with intent to cause serious bodily injury to George Earl Malone,
       committed an act clearly dangerous to human life, by manner and means unknown to the
       Grand Jury, which caused the death of George Earl Malone.4

The trial court is required to provide the jury with a written charge setting forth the law

4
   Paragraph Three of the indictment alleged as follows: “[A]nd it is further presented in and to said Court that the
said DEBORAH MALONE WILSON, Defendant, in the County of Hood and State aforesaid, on or about the 28th
day of September, 2009, did then and there intentionally, with intent to cause serious bodily injury to George Earl
Malone, commit an act clearly dangerous to human life, by manner and means unknown to the Grand Jury, which
caused the death of George Earl Malone.”


                                                       - 15 -
applicable to the case. TEX.CODE CRIM. PROC.Ann. art. 36.14. The court’s instructions must

“apply the law to the facts adduced at trial.”          Sanchez v. State, 376 S.W.3d 767, 773

(Tex.Crim.App. 2012). As a general rule, the instructions must also conform to allegations in the

indictment. Id.

       The term “manner and means” refers to the actus reus of the crime. Id., citing Jefferson

v. State, 189 S.W.3d 305, 316 (Tex.Crim.App. 2006)(Cochran, J., concurring)(noting that

manner and means is a “description of how the offense was committed.”). The means of death

may refer to the weapon or instrument responsible for the deceased’s death. Sanchez, 376

S.W.3d at 773. Neither the manner nor the means need to be agreed upon unanimously by a

jury. Id. at 773-74. The jury is only required to unanimously agree that the defendant caused the

death of the complainant. Id. at 774.

       Dr. Shiping Bao testified that the medical cause of death was the subdural hematoma, or

blood clot, between the brain and skull. He determined that the cause of death was blunt force

head injuries and the manner of death was homicide. Dr. Bao found at least five blunt force

impacts to the victim’s head but it was his opinion that the blow to the right orbit caused the left

occipital lobe hemorrhage. Dr. Bao explained that the blow to the right orbit would cause the

brain to move inside of the skull and strike the opposite side of the skull thereby causing the

injury to the left occipital lobe. There is evidence in the record that David Malone kicked

George in the head and also punched his head while Appellant was restraining George. The

record does not contain any evidence that the victim’s brain injury and resulting death was

caused by unknown manner and means. Thus, the trial court erred by submitting the third

alternative to the jury. See Sanchez, 376 S.W.3d at 774.

                                          Harm Analysis



                                               - 16 -
       Appellant failed to object to the inclusion of this third alternative theory in the application

paragraph.   Consequently, the jury charge error requires reversal only if the error caused

egregious harm. Errors that result in egregious harm are those that affect the very basis of the

case, deprive the defendant of a valuable right, or vitally affect a defensive theory. See Almanza,

686 S.W.2d at 172. The degree of harm is determined in light of the entire jury charge, the state

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

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

Sanchez, 376 S.W.3d at 774-75. In a jury charge alleging alternative theories, harm must be

measured “at least in part, against the likelihood that the jury’s verdict was actually based upon

an alternative available theory of culpability not affected by erroneous portions of the charge.”

Sanchez, 376 S.W.3d at 775, quoting Atkinson v. State, 923 S.W.2d 21, 27 (Tex.Crim.App.

1996), overruled on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App. 2002).

When a jury returns a general guilty verdict on an indictment charging alternate methods of

committing the same offense, the verdict stands if the evidence is sufficient to support a finding

under any of the theories submitted.         Sanchez, 376 S.W.3d at 775.           The presence of

overwhelming evidence of guilt plays a determinative role in resolving the issue and may be

considered when assessing jury-charge error. Id.

       Having considered the entire record, we find that the erroneous jury charge did not result

in egregious harm. The jury charge permitted the jury to convict Appellant either acting alone or

as a party with David Malone under two other theories both of which are supported by the

evidence. Issue Seven is overruled.

                                       LAW OF PARTIES

       In Issue Eight, Appellant complains that the trial court erred by instructing the jury on the



                                               - 17 -
law of parties because it was not raised by the evidence.5 A person is criminally responsible as a

party to an offense if the offense is committed by her own conduct, by the conduct of another for

which she is criminally responsible, or by both. TEX.PENAL CODE ANN. § 7.01(a). A person is

criminally responsible as a party to an offense committed by the conduct of another if the person

acts with an intent to promote or assist in the commission of the offense, and solicits,

encourages, directs, aids, or attempts to aid another person to commit the offense. TEX.PENAL

CODE ANN. § 7.02(a)(2). In determining whether a defendant is a party to an offense, the court

may examine the events occurring before, during, or after the offense is committed and may rely

on the defendant’s actions showing an understanding and common design to commit the offense.

See Marable v. State, 85 S.W.3d 287, 293 (Tex.Crim.App. 2002). An instruction on the law of

parties may be given whenever 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 trial court’s charge instructed the jury 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, she solicits, encourages, directs, aids, or attempts to aid the other

person to commit the offense.             See TEX.PENAL CODE ANN. § 7.02(a)(2). The charge also

instructed the jury that mere presence at the scene of an offense will not make a person a party to

an offense. Applying the law of parties to the offense of murder under Section 19.02(b)(1) and

to the evidence as it relates to Paragraph 1 of Count I, Appellant is criminally responsible as a

party to this offense if, acting with the intent to promote or assist in the commission of the

murder of George Malone by David Lee Malone, Appellant solicited, encouraged, directed,

5
  Appellant has not raised an issue on appeal that the evidence is legally insufficient to support her conviction. We
have not interpreted Issue Eight as raising such an argument because the only relief she seeks is reversal of her
conviction and remand for a new trial.

                                                       - 18 -
aided, or attempted to aid David Malone to commit the murder, and David Lee Malone,

intentionally or knowingly caused George Malone’s death by kicking and striking him in the

head. Similarly, Appellant is criminally responsible as a party to the offense of murder alleged

in Paragraph 2 of Count I, if Appellant, acting with the intent to promote or assist in the

commission of the murder of George Malone by David Lee Malone, Appellant solicited,

encouraged, directed, aided, or attempted to aid David Malone to commit the murder, and David

Lee Malone, acting with intent to cause serious bodily injury, committed an act clearly

dangerous to human life by kicking and striking George Malone in the head which caused the

death of George Malone.

       It is undisputed that Appellant had a difficult relationship with her father during the

weeks and months leading up to the offense. During the summer of 2009, George sought a

protective order against Appellant and David. Just a few weeks before the offense, Appellant

spoke with her brother, Yates Malone, about her ongoing dispute with George and she said that

her father needed to die. Witnesses observed Appellant holding George during the assault while

David viciously kicked him in the head and punched his head. Appellant continued to hold

George even after his body went limp and David kicked him a second time in the head.

Appellant did not merely hold George while David kicked him; she also bit George and gouged

him with her fingernails. After neighbors intervened, Appellant repeatedly stated that she had

beaten her father and she hoped he died. All of this evidence showed that Appellant acted with

intent to promote or assist the commission of the offense and she aided or attempted to aid David

Malone in the commission of murder as alleged in Paragraphs 1 and 2 of Count I. The trial court

did not err by applying the law of parties to either paragraph. Issue Eight is overruled. Having

overruled each issue, we affirm the judgment of the trial court.



                                               - 19 -
February 6, 2013                     _______________________________________________
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)




                                              - 20 -
