                             NUMBER 13-14-00675-CR

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


EDGAR GARCES DIAZ,                                                           Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 357th District Court
                         of Cameron County, Texas.


                        MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Hinojosa
                Memorandum Opinion by Justice Benavides

      By four issues, appellant Edgar Garces Diaz challenges his convictions for capital

murder and aggravated assault.      See TEX. PENAL CODE ANN. §§ 19.03(a)(2) (capital

murder), 22.02(a)(2) (aggravated assault) (West, Westlaw through 2017 1st C.S.). Diaz

alleges:   (1) the trial court reversibly erred by denying his motion to suppress his

statements into evidence; (2) that the evidence was insufficient to prove the element of

retaliation necessary for capital murder; (3) the trial court committed charge error by not
properly including the lesser included offense of murder; and (4) the trial court committed

error during the sentencing phase by proceeding without Diaz present. We affirm.

                                        I.      BACKGROUND

       Diaz was charged by a four-court indictment of: (1) the murder of Mayra Oyervides

with a firearm; (2) the aggravated assault with a deadly weapon of Leonel Garcia; (3) the

murder of Oyervides by committing an act clearly dangerous to human life; and (4) the

capital murder of Oyervides by retaliation. See id. §§ 19.02, 22.02, 19.03 (West, Westlaw

through 2017 1st C.S.).1

       On April 1, 2013, Oyervides was shot and killed outside of her apartment in

Harlingen. Her fiancé’s nephew, Garcia, who lived with Oyervides, was also shot at, but

was not injured during the shooting. Harlingen police recovered two surveillance videos

from neighboring homes that showed two men walking toward Oyervides’s apartment, one

wearing an orange shirt and one wearing a blue shirt. Multiple witnesses in the area stated

the two men were involved in the shooting. One of the videos showed a black minivan

dropping the two men off near Oyervides’s apartment. The investigation led Harlingen

police to Diaz, Gabriel Vela, Margarito Garces, and Dorothy Sanchez. Vela and Sanchez

were arrested for the murder in April. Diaz was arrested in August while re-entering the

United States from Mexico.

       Prior to trial on the merits, Diaz sought to suppress his statements to police. The

trial court held a hearing in which Investigator Carlos Ramos and Joel Yanes of the

Harlingen Police Department testified. Investigator Ramos stated he interviewed Diaz on

August 4, 2014, the day Diaz was arrested.                 After Diaz waived his Miranda rights,


       1 Prior to trial, the State dismissed count 3, the charge for murder by committing an act clearly
dangerous to human life. See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through 2017 1st C.S.).

                                                       2
Investigator Ramos spoke to him, but Diaz did not implicate himself in Oyervides’s death.

See Miranda v. Arizona, 384 U.S. 436, 478 (1966). At the end of the interview, Diaz asked

to be returned to his jail cell, at which point Ramos ceased questioning and returned Diaz.

The following morning, Investigator Yanes interviewed Diaz.         After reading Diaz his

Miranda rights a second time, Investigator Yanes explained to Diaz that he was the lead

investigator and attempted to get Diaz to relay what had occurred. See id. Following a

break in the interrogation, Investigator Yanes stated he felt Diaz was still willing to talk,

read him his rights again, and Diaz gave Investigator Yanes a statement implicating

himself in Oyervides’s shooting. See id. After hearing the testimony, the trial court denied

Diaz’s motion to suppress his statements.

       During trial, the State called multiple witnesses from Oyervides’s neighborhood.

Brenda Villarreal testified she heard gunshots, saw two men, one wearing an orange shirt

and one wearing a blue shirt running towards a fence while trying to hide a handgun. Osiel

Garcia, also a neighbor, testified he heard gunshots, saw two men, one wearing orange

and one wearing blue who looked confused running down his alley, and it appeared the

one in orange had a gun tucked in his waistband.

       Leonel Garcia testified that Oyervides was engaged to his uncle and they lived in

the same apartment. Garcia stated that around 6 p.m. on April 1, 2013, he was outside

their apartment speaking to some individuals in a vehicle. Garcia said Oyervides was

outside on the porch in front of the apartment. As Garcia’s friends were leaving, he noticed

two males approaching; one wore an orange shirt and the other a blue shirt. Garcia stated

he had never seen them before. As Garcia climbed the stairs back to his apartment, he

testified that the male in the orange shirt approached the bottom of the stairs and said



                                                 3
“Hey Homeboy.” Garcia noticed that Diaz tried to pull out a gun, but it was stuck in his

shirt, and Garcia took off running towards the apartment. Garcia testified that as he ran in

the front door, he believed Oyervides was right behind him. Garcia told the jury that he

ran and hid in a closet in the apartment and did not leave the closet until he heard his

brother talking. When Garcia exited the closet, he saw Oyervides on the ground with blood

around her. Garcia testified that he was “freaking out” and ran downstairs towards the

alley, but the two men were already gone.

       Harlingen Police Officer Joseph Lopez stated he was a member of the Crime Scene

Response Team and located and recovered a pistol magazine in the alleyway. Officer

Jorge Moreno testified he reviewed surveillance videos from neighborhood homes and

was able to locate the black minivan that Diaz was seen exiting. Officer Sandra Moreno,

also a member of the Crime Scene Response Team, recovered 9 mm bullet casings and

projectiles from the crime scene that were 9mm caliber.         Bradford Means, a Texas

Department of Public Safety firearms analyst, testified that the seven casings submitted

were all fired from the same gun, and the four bullets submitted were from the same gun

as well.   Forensic pathologist Elizabeth Miller described the five gunshot wounds

Oyervides sustained, stating that at least two of them could have been the fatal shot.

       The State also called Sandra Hernandez, who knew Diaz through Vela, Diaz’s

brother. Hernandez testified that Diaz, Vela, and their cousin, Margarito Garces, had been

at her home on April 1, 2013 around 4:30 p.m. Hernandez stated that Diaz was wearing

an orange shirt, Garces a blue shirt, and Vela was wearing a grey shirt. Hernandez said

that Diaz and Garces left her home in a black minivan shortly after the 5 p.m. local

newscast began, while Vela left about twenty minutes later in a gold vehicle.



                                                4
      Dorothy Lee Sanchez, a charged co-defendant, testified. Sanchez explained that

she had children with Vela, and on April 1, 2013, Vela visited her place of employment

asking to trade vehicles with her and borrow her black minivan. Sanchez stated that

around 6 p.m., Vela called her to switch vehicles in Harlingen, near a restaurant. When

she arrived at the restaurant, Sanchez said Vela was sitting in the driver’s seat of the

parked, black minivan. Vela entered the vehicle Sanchez was driving, and told her to drive

away. According to Sanchez, Vela had her return to the minivan’s location where he

dropped her off. Harlingen police approached Sanchez shortly thereafter and questioned

her about her prior whereabouts. Sanchez admitted she was not upfront with the officers

initially and got scared when they informed her that her van had been seen on surveillance

near the murder scene. Sanchez claimed she did not know or participate in the murder

and was not aware Vela wanted her minivan for that purpose. Sanchez said she gave a

statement to police after she was arrested, but had taken hydrocodone shortly before

being arrested and does not remember the statement. Sanchez confirmed that Diaz was

wearing orange that day, Garces was wearing blue, and Vela was wearing grey.

      The State’s final witnesses were Investigators Ramos and Yanes. Investigator

Ramos testified that he spoke with Diaz shortly after Diaz’s arrest at the international

bridge when he re-entered the United States from Mexico. Investigator Ramos stated that

Diaz never admitted to the murder. Diaz told him he had been taken by force to a ranch

in Mexico, spoke to his parents while in Mexico, and admitted to knowing Vela and Garces.

Investigator Ramos also relayed that at the end of the interview, Diaz stated he did not

want to talk anymore and was taken back to his jail cell.




                                                5
        Investigator Yanes, the lead investigator in this case, spoke about Sanchez being

questioned and stating the minivan was hers, when it was actually registered to Vela.

Investigator Yanes said he knew about Investigator Ramos’s initial interview with Diaz, but

re-approached Diaz after reviewing the video to speak with him. After reading his Miranda

warnings, Investigator Yanes testified that Diaz did not ask for an attorney or request that

they cease their interview. See id. Investigator Yanes stated he ended the second

interview in order to give Diaz a break, but Diaz never indicated he did not wish to speak

to Investigator Yanes. According to Investigator Yanes, Diaz was told about possible

pending charges against his parents in order to fully inform him of the investigation and

consequences, not to threaten or coerce him. On cross examination, Investigator Yanes

agreed that he spoke to Diaz between the second and third interview outside, off camera

where Investigator Yanes had given Diaz some cigarettes he had requested. The State

played part of the second and third interviews between Diaz and Investigator Yanes for

the jury.    In the third interview, Diaz confessed to Oyervides’s murder, answering

Investigator Yanes’s questions, and even demonstrating actions regarding how the murder

occurred.

        The jury found Diaz guilty of capital murder and aggravated assault. 2 See TEX.

PENAL CODE ANN. §§ 19.03(a)(2), 22.02(a)(2). After an outburst from Diaz following the

trial court’s reading of the verdicts, Diaz was removed from the courtroom and sentenced

in absentia by the trial court to concurrent terms of life imprisonment and twenty years’




        2 The State dismissed count one of the indictment (murder) following the jury’s verdict on count four
(capital murder).


                                                         6
confinement in the Texas Department of Criminal Justice–Institutional Division for each

respective conviction. This appeal followed.

                             II.     STATEMENT WAS VOLUNTARILY GIVEN

         By his first issue, Diaz argues his statements given to police at the time of his arrest

were illegally obtained. These statements were challenged during a pre-trial motion to

suppress, in which the trial court denied the suppression.3

         A.      Standard of Review

         We review a trial court’s suppression ruling under a bifurcated standard. Hubert v.

State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). Appellate courts must view all of the

evidence in the light most favorable to the ruling. Vasquez v. State, 453 S.W.3d 555, 564

(Tex. App.—Houston [14th Dist.] 2014, pet. granted). The trial court is the “sole and

exclusive trier of fact and judge of the credibility of the witnesses and evidence presented

at a hearing on a motion to suppress, particularly when the motion is based on the

voluntariness of a confession.” Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App.

2007).

         Regarding findings of fact, especially when those findings are based on an

evaluation of credibility and demeanor, we review the trial court’s rulings under an abuse

of discretion standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997);

see also Xu v. State, 191 S.W.3d 210, 215 (Tex. App.—San Antonio 2005, no pet.). We

afford almost total deference to a trial court’s determination of historical facts supported

by the record. See Guzman, 955 S.W.2d at 89. However, “the trial court’s resolution of



         3Diaz’s case was abated so that the trial court could issue findings of fact and conclusions of law
regarding the voluntariness of Diaz’s statement to Harlingen police. The trial court issued its findings of fact
and conclusions of law, and they were made a part of the record.

                                                           7
mixed questions of law and fact, which does not turn on an evaluation of credibility and

demeanor, is reviewed de novo.” Xu, 191 S.W.3d at 215. The court of appeals is obligated

to “uphold the trial court’s ruling on appellant’s motion to suppress if that ruling was

supported by the record and was correct under any theory of law applicable to the case.”

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (en banc).

       B.     Applicable Law and Discussion

       In order to be admissible as evidence, the statements Diaz made to the Harlingen

Police Department had to have been videotaped and comply with the dictates of article

38.22 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West,

Westlaw through 2017 1st C.S.). Oral statements are governed by section 3 of the article.

Id. at § 3. Section 3 states:

       (a)    No oral or sign language statement of an accused made as a result
              of custodial interrogation shall be admissible against the accused in
              a criminal proceeding unless:

              (1)    an electronic recording, which may include motion picture,
                     video tape, or other visual recoding is made of the statement;

              (2)    prior to the statement but during the recording the accused is
                     given the warning in Subsection (a) of Section 2 above and the
                     accused knowingly, intelligently, and voluntarily waives any
                     rights set out in the warning;

              (3)    the recording device was capable of making an accurate
                     recording, the operator was competent, and the recording is
                     accurate and has not been altered;

              (4)    all voices on the recording are identified; and

              (5)    not later than the 20th day before the date of the proceeding,
                     the attorney representing the defendant is provided with a true,
                     complete, and accurate copy of all recordings of the defendant
                     made under this article.

Id.   The State bears the burden of demonstrating that the defendant knowingly,

                                                 8
intelligently, and voluntarily waived his statutory and Miranda rights. Howard v. State, 482

S.W.3d 249, 255 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).

       1.     Right to Remain Silent

       During the motion to suppress hearing, both investigators from the Harlingen Police

Department as well as Diaz testified. Investigator Ramos conducted Diaz’s first interview

and promptly discontinued it when Diaz requested to go back to his jail cell. Investigator

Yanes re-approached Diaz the following day, and Diaz waived any of his rights and agreed

to speak during the two subsequent interviews with Investigator Yanes.

       The Fifth Amendment to the United States Constitution provides that no person

“shall be compelled in any criminal case to be a witness against himself.” Ramos v. State,

245 S.W.3d 410, 418 (Tex. Crim. App. 2008) (quoting U.S. CONST. amend. V). If an

individual in custody “indicates in any manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrogation must cease.” Id. (quoting Miranda, 384

U.S. 473). If a defendant has invoked his right to remain silent, we must then determine if

law enforcement “scrupulously honored” his request before re-initiating contact. See

Mosely v. Michigan, 423 U.S. 96, 104 (1975).

       In Mosley, the Supreme Court established the following factors to consider:

       1.     whether the suspect was informed of his right to remain silent prior to
              the initial questioning;

       2.     whether the suspect was informed of his right to remain silent prior to
              the subsequent questioning;

       3.     the length of time between initial questioning and subsequent
              questioning;

       4.     whether the subsequent questioning focused on a different crime; and

       5.     whether police honored the suspect’s initial invocation of the right to

                                                9
             remain silent.

Id.

      In evaluating the first Mosley factor, Diaz was informed of his right to remain silent

prior to any initial questioning. See id. It is undisputed that Diaz was under arrest when

he was initially interviewed by Investigator Ramos. Regarding the second factor, Diaz was

also informed of his right to remain silent prior to both the second and third interview

conducted by Investigator Yanes.      See id.    The first two factors weigh in favor of

“scrupulously honoring” Diaz’s request.

      The third factor relates to the length of time that has passed between Diaz’s first,

second, and third interviews. See id. Diaz’s first interview terminated on the evening of

August 4, 2013, and Yanes’s re-initiation of the second interview did not occur until close

to noon on August 5, 2013. A period of almost thirteen hours passed between the two

interviews, therefore, the Harlingen police honored Diaz’s request to “go back to his cell”

and also weighs in favor of the police “scrupulously honoring” Diaz’s request.

      The fourth factor relates to whether the subsequent questioning focused on a

different crime or the same one as before. See id. The focus of all three interviews with

Diaz regarded the murder of Oyervides. This factor weighs against Harlingen police

“scrupulously honoring” Diaz’s request.

      The final factor looks to whether the police honored Diaz’s initial request to remain

silent. See id. Investigator Ramos immediately terminated his interview with Diaz when

Diaz stated he “wanted to go back to his cell.” Diaz’s invocation, although somewhat

ambiguous, was honored and no one approached Diaz to speak to him again until the

following day. This factor weighs in favor of “scrupulous honoring.”



                                                10
       Having considered all the Mosley factors, we hold that Harlingen police

“scrupulously honored” Diaz’s rights. See id.

       2.     Statement Not Involuntary

       Diaz also argues that Harlingen police threatened to arrest his parents, which

caused his statement to be involuntary. However, the trial court in its findings of fact

believed that “at the time the Officers advised the Defendant of the possible arrest of

Defendant’s parents, the Officers did have sufficient probable cause to arrest the

Defendant’s parents for their role in hindering the apprehension of the Defendant.”

Additionally, the trial court found that “the Officers never tell, or imply to the Defendant that

unless he gives a statement or confesses to the crime, they will arrest the Defendant’s

parents.”

       Some federal circuit and state courts have “held that law enforcement officials can

threaten to arrest a family member, without vitiating the voluntariness of a confession, if

they can lawfully effectuate such an arrest (i.e., if there is probable cause to arrest).”

Contreras v. State, 312 S.W.3d 566, 577, n. 27 (Tex. Crim. App. 2010). Although in

Contreras, the court of criminal appeals held there was no probable cause to arrest,

therefore rendering Contreras’s confession inadmissible, see id. at 566–67, in this case,

there was probable cause to issue a warrant for the arrest of Diaz’s parents, based on the

trial court’s findings. Because the trial court found that probable cause existed, Diaz’s

statements were not involuntary.

       3.     Conclusion

       The trial court heard the testimony and denied the motion to suppress, allowing the

statement to be played at trial. Since we defer to the trial court as the “‘sole and exclusive



                                                  11
trier of fact and judge of the credibility of the witnesses and evidence presented at a

hearing on a motion to suppress,” we uphold the finding that the statement was voluntarily

made because it is supported by the record. See Delao, 235 S.W.3d at 238. The trial

court heard testimony from both sides and made its determination that Diaz’s subsequent

statements were not made in violation of his right to remain silent. We are obligated to

“uphold the trial court’s ruling on appellant’s motion to suppress if that ruling was supported

by the record and was correct under any theory of law applicable to the case.” Armendariz,

123 S.W.3d at 404. We overrule Diaz’s first issue.

                          III.    EVIDENCE IS LEGALLY SUFFICIENT

       By his second issue, Diaz challenges the sufficiency of the evidence regarding

retaliation to support his conviction.

       A.     Standard of Review

       When evaluating a sufficiency challenge, the reviewing court views the evidence in

the light most favorable to the verdict to determine whether a rational jury could find the

defendant guilty beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex.

Crim. App. 2010) (plurality op.); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). In

order to have reversal of a conviction on a claim of insufficiency of the evidence, Diaz must

show that no rational jury could have found all the elements of the offense beyond a

reasonable doubt. Brooks, 323 S.W.3d at 902. The jury is the sole judge of the credibility

of the witnesses and the weight to be given to their testimony, and a reviewing court is not

to substitute its judgment as to facts for that of the jury as shown through its verdict.

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). When the reviewing

court is faced with a record supporting contradicting inferences, the court must presume



                                                 12
that the jury resolved any such conflict in favor of the verdict, even if it is not explicitly

stated in the record. Id.

       A reviewing court must measure the sufficiency of the evidence by the elements of

the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286

S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997) (en banc)). Such a 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 theories of liability, and adequately describes the

particular offense for which the defendant was tried. Id.

       B.       Applicable Law and Discussion

       Relevant to this case, a person commits an offense of capital murder if he commits

murder as defined under section 19.02(b)(1) and the person commits the murder in the

course of committing retaliation.    See TEX. PENAL CODE ANN. §§ 19.03(a)(2) (capital

murder), 36.06(a)(1), (2) (retaliation) (West, Westlaw through 2017 1st C.S.). Based on a

hypothetically correct jury charge, we must determine if the evidence supported the

conviction. See Villarreal, 286 S.W.3d at 327.

       Diaz argues that he intended to cause harm to Garcia, not Oyervides. Oyervides

happened to be in the wrong place during the shooting, and Diaz claims to have shot her

as a “result of a [sic] act of panic in a time of passion and not as an intentional act of

retaliation.”   However, in his third interview with Harlingen police, Diaz stated that

Oyervides had turned around and was facing him, so he shot at her. Diaz also told

Investigator Yanes that he was trying to scare Oyervides because he did not want her to

call the police and he thought she was threatening to do so.



                                                 13
       Retaliation is comprised of intentionally or knowingly harming or threatening
       to harm another by an unlawful act:

       (1)    in retaliation for or on account of the service or status of another as a:

              (A)    public servant, witness, prospective witness, or informant; or

              (B)    person who has reported or who the actor knows intends to
                     report the occurrence of a crime; or

       (2)    to prevent or delay the service of another as a:

              (A)    public servant, witness, prospective witness, or informant; or

              (B)    person who has reported or who the actor knows intends to
                     report the occurrence of a crime.

TEX. PENAL CODE ANN. § 36.06(a)(1), (2). Based on Diaz’s statement that he believed

Oyervides was going to call the police following the gunfire that was directed at Garcia, we

hold that there was legally sufficient evidence presented at trial to support the jury’s finding

of guilt under a hypothetically correct jury charge. See Villarreal, 286 S.W.3d at 327. We

overrule Diaz’s second issue.

                        IV.     NO REVERSIBLE JURY CHARGE ERROR

       By his third issue, Diaz alleges the trial court committed jury charge error by not

including a lesser offense instruction of murder in the capital murder charge.

       A.     Standard of Review

       “In analyzing a jury-charge issue, our first duty is to decide if error exists.”

Rodriguez v. State, 456 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d.)

(citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g)). Only

if error is found, do we then consider whether an objection to the charge was made and

analyze for harm. Id. “The degree of harm necessary for reversal depends upon whether

the error was preserved.” Id. (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App.

                                                  14
1996)).

      If “an error is preserved with a timely objection. . . . then the jury-charge error

requires reversal if the appellant suffered some harm as a result of the error.” Sanchez v.

State, 376 S.W.3d 767, 774 (Tex. Crim. App. 2012) (citing Almanza, 686 S.W.2d at 171).

The Court of Criminal Appeals “has interpreted this to mean that any harm, regardless of

degree, is sufficient to require reversal.” Rodriguez, 456 S.W.3d at 280.

      To establish harm, the “appellant must have suffered actual, rather than theoretical,

harm.” Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). Neither the State

nor the appellant bears the burden on appeal to prove harm. Reeves v. State, 420 S.W.3d

812, 816 (Tex. Crim. App. 2013).

      B.     Applicable Law and Discussion

      Diaz filed a requested jury charge regarding a lesser offense of murder that stated:

      Now, if you find from the evidence beyond a reasonable doubt that on or
      about the 1st day of April, 2013, in Cameron County, Texas, the defendant
      Edgar Garces Diaz, did then and there intentionally or knowingly cause the
      death of Mayra Bianey Oyervides, but you have a reasonable doubt as to
      whether the defendant committed the murder during the course of
      committing the offense of retaliation, then you will find the defendant guilty
      of murder, but not capital murder.

      Unless you find from the evidence beyond a reasonable doubt that the
      defendant is guilty of murder, as defined herein, or if you have a reasonable
      doubt thereof, you will acquit the defendant of murder.

      If you should find from the evidence beyond a reasonable doubt that the
      defendant is either guilty of capital murder or murder, but you have a
      reasonable doubt as to which offense he is guilty, then you should resolve
      the doubt in defendant’s favor, and in such event, you will find the defendant
      guilty of the lesser offense of murder.

      If you should find from the evidence that defendant is guilty of neither capital
      murder nor murder, or if you have a reasonable doubt thereof, you will find
      the defendant not guilty.



                                                15
The State objected to Diaz’s inclusion of the “benefit of the doubt” instruction because

there was already a count for murder in the jury charge and it stated there needed to be

some evidence Diaz did not commit the murder for retaliation. The trial court sustained

the State’s objection and denied the proposed charge.

      The jury charge included counts one, three, and four of the indictment and

contained the following:

                                             3.
                    Application of the Law to the Facts: Capital Murder

              Now, if you find the evidence beyond a reasonable doubt that on or
      about April 1, 2013, in Cameron County, Texas, the defendant EDGAR
      GARCES DIAZ A/K/A EDGAR DIAZ, did then and there intentionally cause
      the death of MAYRA BIANEY OYERVIDES with a firearm, and the said
      defendant, EDGAR GARCES DIAZ A/K/A EDGAR DIAZ, was then and
      there in the course of committing or attempting to commit the offense of
      retaliation against MAYRA BIANEY OYERVIDES, then you will find the
      defendant guilty of capital murder as charged in Count IV of the indictment.

             Unless you so find beyond a reasonable doubt, or if you have a
      reasonable doubt thereof, you will acquit the defendant and say by your
      verdict “Not Guilty.”

             If you have found the defendant guilty of Capital Murder, skip
      paragraph 4, Murder, and next consider paragraph 5, Aggravated Assault.
      If you have found the defendant not guilty of the offense of Capital Murder,
      then you will next consider whether or not defendant is guilty of the offense
      of Murder, as charged in Count I of the indictment.

                                                4.
                           Application of the Law to the Facts: Murder

            Now if you find from the evidence beyond a reasonable doubt that on
      or about April 1, 2013, in Cameron County, Texas, the defendant, EDGAR
      GARCES DIAZ A/K/A EDGAR DIAZ, did then and there intentionally or
      knowingly cause the death of an individual, namely MAYRA BIANEY
      OYERVIDES, by shooting MAYRA BIANEY OYERVIDES with a firearm,
      then you will find the defendant, EDGAR GARCES DIAZ A/K/A EDGAR
      DIAZ, guilty of murder as charged in Count I of the indictment.

             Unless you so find beyond a reasonable doubt, or if you have a

                                               16
       reasonable doubt thereof, you will acquit the defendant and say by your
       verdict “Not Guilty.”

             Regardless of your verdicts as to the charges of Capital Murder and
       Murder, you must consider whether or not defendant is guilty of Aggravated
       Assault, as charged in Count II of the indictment.

       (emphasis in original).

       The general rule has been that, “where greater and lesser grades or degrees of an

offense are charged, the court must upon the defendant’s request give the jury a ‘benefit

of the doubt’ instruction that, if the evidences leaves a reasonable doubt of the grade or

degree of the offense, such doubt should be resolved in favor of the defendant.”

Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d).

“This added instruction is given to clear up any confusion where the jury has no reasonable

doubt that the defendant committed the offense, but is uncertain about the grade or degree

of that offense.” Id.

       A similar requested instruction as the one in this case was made in Kihega v. State.

392 S.W.3d 828, 835–36 (Tex. App.—Texarkana 2013, no pet.). In Kihega, the defendant

requested the trial court to include a “benefit of the doubt” instruction regarding the lesser-

included offenses. See id. at 835. The jury charge did contain the lesser-included offenses

of murder, manslaughter, and criminally negligent homicide. See id. In each application

paragraph, the jury was instructed to find Kihega guilty of a particular offense if the jury

found the respective elements to have been proven beyond a reasonable doubt. See id.

The jury charge went on to instruct that if the jury had a reasonable doubt as to each

particular offense, the charge instructed the fact-finder to acquit the defendant and next

consider if he was guilty of the lesser-included offenses. Id. In that case, the Texarkana

court of appeals found that “a trial court errs to refuse such a requested instruction.” Id.

                                                 17
There, as in this case, because Diaz objected to the jury charge as given, we must reverse

the trial court’s judgment if it can be shown that Diaz suffered any actual harm. See id. at

836.

       In order to determine if Diaz was harmed by the trial court’s error, we look to: (1)

the entire jury charge; (2) the state of the evidence including contested issues and the

weight of the probative evidence; (3) the parties’ arguments; and (4) all other relevant

information in the record to determine harm. See id.

       Regarding the state of the evidence, the evidence strongly supported a finding of

guilt of capital murder. Diaz’s third statement places him at the scene of Oyervides’s

murder and by his own admissions, establishes that Diaz shot at Oyervides multiple times.

In addition to Diaz’s statement, multiple witnesses were able to identify Diaz’s clothing,

including Garcia, the initial target of Diaz’s shots. Besides the witnesses who identified a

man in an orange shirt as the shooter, Sanchez and Hernandez confirmed that Diaz was

wearing an orange shirt the day of the murder. Additionally, during closing arguments, the

State made brief reference to the lesser included offense:

       Let’s go on to number four. And number four—if you find that there is no or
       insufficient probable cause as to this first count of capital murder, you will
       conclusively, the very next one eliminates retaliation from the wording. And
       you can still find him guilty of murder if you find from all the evidence that he
       is responsible for knowingly and intentionally causing her death.

The State telling the jury not to consider lesser offenses unless first concluding Diaz was

not guilty of the primary offense of capital murder is a correct statement of the law. See

Kihega, 392 S.W.3d at 837.

       In sum, the trial court’s instructions clearly required a finding of guilt beyond a

reasonable doubt on the charged offense of capital murder first. See id. The instructions



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also clarified that if there was any doubt about Diaz’s guilt of capital murder, then the jury

should acquit Diaz of capital murder, and it should move on to the lesser offense of murder.

See id. “Thus, the charge provided for consideration of alternative lesser crimes and

authorized consideration and conviction on one of those lesser offense if the jury had

reasonable doubt as to the primary charged offense.” Id. Considering the entire charge,

the state of the evidence, and the State’s arguments, we conclude that the trial court error

did not result in harm to Diaz. We overrule his third issue.

                                     V.     SENTENCING

       By his fourth issue, Diaz states the trial court committed error by sentencing him in

absentia.

       A.     Applicable Law and Discussion

       Courts are required to pronounce sentence orally in the defendant’s presence. TEX.

CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (West, Westlaw through 2017 1st C.S.); Taylor

v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Ex parte Madding, 70 S.W.3d 131,

135 (Tex. Crim. App. 2002). The judgment, including the sentence assessed, is merely a

written manifestation of that oral pronouncement. See TEX. CODE CRIM. PROC. ANN. art.

42.01, § 1 (West, Westlaw through 2017 1st C.S.); Taylor, 131 S.W.3d at 500; Madding,

70 S.W.3d at 135. Oral pronouncement of the sentence in the presence of the defendant

is necessary because “the imposition of sentence is the crucial moment when all of the

parties are physically present at the sentencing hearing and able to hear and respond to

the imposition of sentence.” Madding, 70 S.W.3d at 135. “[I]t is the pronouncement of

sentence that is the appealable event, and the written sentence or order simply




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memorializes it and should comport therewith.” Coffey v. State, 979 S.W.2d 326, 328

(Tex. Crim. App. 1998).

        We abated this case and remanded back to the trial court with instructions that

comply with the code of criminal procedure’s requirement that a sentence must be

pronounced orally in front of a defendant. See TEX. CODE CRIM. PROC. ANN. art. 42.03, §

1(a).   On January 6, 2017, Diaz was sentenced in person by the trial court to life

imprisonment and twenty years’ confinement to run concurrently. Therefore, Diaz has

been properly sentenced and this issue is overruled as moot.

                                        VI.     CONCLUSION

        We affirm the judgment of the trial court.



                                                               GINA M. BENAVIDES,
                                                               Justice



Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
2nd day of November, 2017.




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