                               Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                           No. 04-16-00144-CR

                                          Anthony Lee SMITH,
                                               Appellant

                                                      v.

                                          The STATE of Texas,
                                                Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013CR10000
                            Honorable Jefferson Moore, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: July 19, 2017

AFFIRMED

           After finding Appellant Anthony Lee Smith guilty of Daniel Cantu’s murder, the jury

assessed punishment at life imprisonment in the Institutional Division of the Texas Department of

Criminal Justice. On appeal, Anthony1 contends the trial court erred in (1) denying the motion to

suppress his custodial statement; (2) admitting evidence for which the State failed to prove a proper




1
  Because Appellant Anthony Smith shares the same surname with many of the witnesses, the appellant and many of
the witnesses are referred to by their first names for purposes of this opinion.
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chain of custody; and (3) improperly including an instruction on the law of parties. We affirm the

trial court’s judgment.

                          FACTUAL AND PROCEDURAL BACKGROUND

A.     Investigation Leading to Anthony’s Arrest

       On the morning of July 28, 2013, San Antonio Police officers responded to a 911 call for

a deceased individual near the community mailboxes at the Banyan Tree apartments. With the

exception of a single bullet wound, the deceased did not appear to have additional injuries.

Attached to the individual’s belt was a chain, described as the type commonly attached to a “biker

wallet.” The officers also found broken chain links located near the body. The wallet was never

recovered. Absent other identification, the officers originally identified the deceased, Daniel

Cantu, by a “gym tag membership” on Cantu’s keyring.

       Officers canvassed the area and located two individuals who saw Cantu’s body earlier that

morning, but mistakenly believed he was “passed out and drunk.” Both individuals were excluded

as suspects. The medical examiner’s autopsy determined Cantu was shot once through his torso,

with either a .38 or a .357 handgun.

       On August 13, 2013, San Antonio Police Sergeant Ricky Lopez contacted Crime Stoppers’

tipster Jean Smith, Anthony’s maternal aunt. Jean provided a written statement that, the day after

the murder, Anthony confessed to shooting Cantu. Jean’s written statement included unreleased,

detailed information about the murder, including: the type of firearm used, the proximity of the

gunshot wound, and the approximate amount of money stolen from Cantu. Shortly thereafter,

officers interviewed Lynell Simmons, another maternal aunt with whom Anthony was living at the

time of the murder. Lynell also provided a written statement to officers implicating Anthony in

the murder.



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       The following day, on August 14, 2013, a Bexar County Sheriff’s Deputy arrested Anthony

for possession of marijuana charges; prior to being booked on the marijuana charges, the deputy

transported Anthony to the San Antonio Police Department and released Anthony into the police

department’s custody. After interviewing Anthony, Sergeant Lopez obtained a warrant and

arrested Anthony for Daniel Cantu’s murder.

B.     Testimony before the Trial Court

       An indictment was returned on November 7, 2013, and Anthony’s jury trial began on

March 7, 2016. The State’s case-in-chief, presented over a three-day period, included testimony

from eighteen witnesses, several of which the trial court declared adverse to the State.

       During Jean’s testimony, she acknowledged calling Crime Stoppers and providing a

statement to officers, but denied many of the assertions contained in her sworn statement. She

contended that the statement included “a lot of stuff in here I probably said but I don’t remember

saying.” Jean testified that when she asked Anthony, “did he do it. He said yes.” The following

day, Jean called the Crime Stoppers’ hotline. During her testimony, Jean acknowledged receiving

$5,000.00 for her call, but was adamant that she did not report Anthony for the money or in

retaliation for a statement that Anthony provided in an unrelated murder conviction of her son

Rafael. Jean denied telling officers the type of weapon used, where Cantu was shot, that Anthony

took Cantu’s money, or implicating her nephew, Gary Smith, in the murder. “I was doing it

because I love my nephew [Anthony] and I’d rather see him in jail than to see him dead on the

street.” As for her sister, Lynell Simmons, Jean described her as “evil” and “dishonest.”

       When the State called Lynell as a witness, she also disavowed her written statement; Lynell

testified that she could not read or write, in direct contradiction to the officer’s testimony who took

her statement. Once again, through impeachment, the State elicited testimony that when Lynell

questioned Anthony about the murder, Anthony replied, “[H]e wasn’t worried about it. ‘Auntie,
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they don’t have a description. They think it was a Mexican that killed a Mexican.’” Also contrary

to her written statement, Lynell denied telling officers that Anthony told her that he shot Cantu in

the heart, that he robbed him, or that he only “got 100 bucks off of him.” Lynell “did not recall”

telling officers that she knew Anthony was lying when he told her that Cantu had a knife. She

acknowledged making Anthony leave her house, but denied telling Anthony that he could not stay

there “because of what he did” or knowing that Anthony owned a .38 handgun. Lynell further

acknowledged speaking to the officers out of concern that her son, Gary, would be implicated in

the murder. Lynell described her sister Jean as “a liar” and a “money-hungry person.”

       Anthony’s cousin, Tatjana Smith, testified that Anthony was with her, Gary, and a third

cousin, Tirion, the evening before the murder. Anthony left the apartment well before Gary and

Tirion, both of whom ultimately decided to “go to the club.” Tatjana was babysitting Tirion’s

children when, in the early morning hours, Anthony came back to the apartment. Tatjana testified

that she did not let Anthony into the apartment because Tirion was not home.

       Darryl King testified that in October of 2013, he was in the Bexar County Jail on a parole

violation and housed in the same unit as Anthony. King was also hostile to the State resulting in

the trial court declaring King an adverse witness. King described Anthony as “talking” about the

murder to different people on many occasions—“that’s what they do in jail.” More specifically,

Anthony said he “killed the white guy” by the mailboxes and that his relatives “snitched” on him.

King provided a possible motive when Anthony told him the man “disrespected him at the flea

market.” Anthony further described that, after shooting Cantu, he ran from the Banyan Tree

apartments to the parking lot behind an industrial building with “stoves.” Anthony said there was

a pipe sticking out of the ground.

       The State also called several officers and forensic analysts. Sergeant Lopez presented the

clothing Cantu was wearing at the time of his death, specifically his jeans, shirt, belt, and belt
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buckle. Sergeant Lopez testified the medical examiner’s office removed Cantu’s clothing during

the autopsy; after completing her examination and marking each object with a unique identification

number, the medical examiner released Cantu’s clothing to Sergeant Lopez’s office for further

testing. The packaging, which Sergeant Lopez unsealed in the courtroom, was marked with the

unique identification number, initials, and dates on several different locations. Sergeant Lopez

testified, and the trial court agreed, the belt buckle and the black shirt, including a small hole, were

unique and identifiable in the pictures previously admitted and taken at the crime scene.

        During the autopsy, a sample of Cantu’s blood was also marked with the same unique

identification number. On August 28, 2013, pursuant to a search warrant, Sergeant Lopez

collected DNA samples from Anthony. All of Anthony’s DNA samples were marked with the

unique identifier, initials, and dates. Forensic scientist Jamie Pomykal, with the Bexar County

Crime Lab, conducted two different DNA analyses on a sample of material removed from the front

hip pocket of Cantu’s jeans. Pomykal identified her initials and dates on the packages; she also

noted the unique identification number assigned by the Bexar County Medical Examiner’s Office.

Pomykal testified, “Anthony Smith was not excluded as a contributor to the DNA profile that I

obtained on the swab from the pockets.” Pomykal was asked to quantify the likelihood of the

DNA sample not belonging to Anthony Smith. Pomykal’s testimony and report, which was

admitted at trial, indicated that she would expect to see the particular sample, in the given

populations:

        African American: 1 in 21,610,000,000,000,000,000,000
        Caucasian: 1 in 11,650,000,000,000,000,000,000,000
        Hispanic: 1 in 28,220,000,000,000,000,000,000,000

        At the conclusion of the testimony, the trial court presented the court’s proposed jury

charge. Defense counsel objected to the inclusion of the instruction on the law of parties. “[A]ll

of their witnesses testified that [Anthony] was the shooter. There [weren’t] any witnesses that
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testified that [Anthony] had participated in the murder in any way other than that.” The trial court

overruled the objection explaining that because the testimony included “conflicting evidence”

whether Gary Smith was also present at the time of the murder, the instruction on the law of parties

was properly included in the court’s charge.

       The jury subsequently found Appellant Anthony Smith guilty of Daniel Cantu’s murder

and, following a punishment hearing, assessed punishment at life imprisonment in the Institutional

Division of the Texas Department of Criminal Justice. This appeal ensued.

                                      MOTION TO SUPPRESS

A.     Standard of Review

       An appellate court reviews a trial court’s ruling on a motion to suppress on a bifurcated

standard of review; a reviewing court must

       give almost total deference to the trial court’s rulings on (1) questions of historical
       fact, even if the trial court’s determination of those facts was not based on an
       evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions
       that turn on an evaluation of credibility and demeanor. But when application-of-
       law-to-fact questions do not turn on the credibility and demeanor of the witnesses,
       we review the trial court’s rulings on those questions de novo.

Wilson v. State, 442 S.W.3d 779, 783 (Tex. App.—Fort Worth 2014, pet. ref’d) (citing Amador v.

State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)); see also Valtierra v. State, 310 S.W.3d 442,

447 (Tex. Crim. App. 2010); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).

This court must “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) (citing State v. Ross, 32 S.W.3d

853, 856 (Tex. Crim. App. 2000). We will reverse the trial court’s suppression decision if it is

unsupported by the record, “arbitrary, unreasonable, or ‘outside the zone of reasonable

disagreement.’” State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).


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       In the present case, Anthony did not request express findings of fact and conclusions of

law.

       [W]hen the trial court makes no explicit fact findings and neither party has timely
       requested findings and conclusions from the trial court[,] . . . the appellate court
       implies the necessary fact findings that would support the trial court’s ruling if the
       evidence (viewed in the light most favorable to the trial court’s ruling) supports
       these implied fact findings.

State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006); see also State v. Cullen, 195 S.W.3d

696, 698 (Tex. Crim. App. 2006) (holding that, in the context of a motion to suppress ruling, even

though the trial court had no obligation to make findings of fact or conclusions of law, nevertheless

the trial court must do so when timely requested by the losing party).

B.     Argument of the Parties

       Anthony contends the trial court erred, in denying the motion to suppress, on two grounds:

(1) when Anthony was questioned about Cantu’s murder, he was not under arrest for the murder;

therefore, when the reason for his arrest ended (i.e. the officer decided the marijuana case would

be charged at large), Anthony should have been released and his statement suppressed; and (2)

Anthony attempted to invoke his right to counsel on three different occasions during the recorded

statement.

       The State counters Anthony was lawfully in custody, and properly Mirandized; Anthony

waived his rights and elected to speak to Sergeant Lopez when the statement was taken.

C.     Custody

       Anthony concedes he was lawfully arrested by the Bexar County Sheriff’s Office deputy

for the possession of marijuana. He argues that because the deputy never intended to book him

into jail for the possession charge, his detention and transfer of custody to Sergeant Lopez and the

San Antonio Police Department was illegal. We disagree.



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        In Devenpeck v. Alford, 543 U.S. 146, 153 (2004), the Supreme Court explained that, if

probable cause was present for the arrest, the officer’s subjective intent was irrelevant.

        [The officer’s] subjective reason for making the arrest need not be the criminal
        offense as to which the known facts provide probable cause. As we have repeatedly
        explained, “the fact that the officer does not have the state of mind which is
        hypothecated by the reasons which provide the legal justification for the officer’s
        action does not invalidate the action taken as long as the circumstances, viewed
        objectively, justify that action.

Id. (internal quotations omitted). In the present case, the probable cause supporting the deputy’s

arrest of Anthony for the possession of marijuana charge is uncontested. Anthony’s concession

supports that the totality of the circumstances allowed a reasonable officer to conclude that

Anthony was engaged in criminal activity. See Parker v. State, 206 S.W.3d 593, 599 (Tex. Crim.

App. 2006). Whether the deputy decided to arrest Anthony because of the outstanding request by

the San Antonio Police Department is irrelevant. See State v. Rascbaum, No. PD-1221-05, 2007

WL 1706035, at *2 (Tex. Crim. App. June 13, 2007) (per curiam) (not designated for publication)

(explaining that because defendant acknowledged initial traffic stop was valid, he conceded that

he committed a traffic offense; because officers were authorized to arrest defendant for the traffic

violation, whether officer’s subjective intent was to arrest for driving while intoxicated is

irrelevant).

        We conclude Anthony was properly in custody for the possession of marijuana offense

when questioned by Sergeant Lopez and overrule Anthony’s arguments contending the interview

was the result of an unlawful detention.

D.      Invocation of Right to Counsel

        Anthony was in custody and not free to leave when he was interviewed by Sergeant Lopez.

The interview constituted a custodial interrogation and prior to any questioning by officers, the

Fifth Amendment required Anthony to be apprised of specific warnings regarding his right to


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consult with an attorney and to have counsel present during custodial interrogation. See Miranda

v. Arizona, 384 U.S. 436, 444 (1966) (“[C]ustodial interrogation . . . mean[s] questioning initiated

by law enforcement officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way.”); TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)

(West Supp. 2014) (requiring warnings only when interrogation is custodial); see also Herrera v.

State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (explaining Miranda warnings “safeguard an

uncounseled individual’s constitutional privilege against self-incrimination during custodial

interrogation”).

       When a suspect asserts his right to counsel, all interrogation must cease until counsel is

provided or until the suspect personally reinitiates the conversation. Edwards v. Arizona, 451 U.S.

477, 484–85 (1981); Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). The right to

counsel is invoked when a person indicates that he desires to speak to an attorney or to have an

attorney present during questioning. Dinkins, 894 S.W.2d at 351. “An invocation must be clear

and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer’ without more, does not

automatically invoke the right to counsel.” Id.; see also Davis v. United States, 512 U.S. 452, 462

(1994) (holding “Maybe I should talk to a lawyer,” was not a request for an attorney); Davis v.

State, 313 S.W.3d 317, 341 (Tex. Crim. App. 2010) (concluding “I should have an attorney,” was

not a request or an express statement that the suspect wanted an attorney). To sufficiently invoke

the right to counsel, the suspect “must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances would understand the statement to be

a request for an attorney.” Davis, 512 U.S. at 459; see also Pecina v. State, 361 S.W.3d 68, 79

(Tex. Crim. App. 2012).

       When reviewing alleged invocations of the right to counsel, we look at the totality of the

circumstances surrounding the interrogation, as well as the alleged invocation, to determine
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whether a suspect’s statement can be construed as an actual invocation of his right to counsel.

Dinkins, 894 S.W.2d at 351; Castillo v. State, 742 S.W.2d 1, 4 (Tex. Crim. App. 1987). “The test

is objective: whether the suspect articulate[d] his desire to have counsel present sufficiently clearly

that a reasonable police officer in the circumstances would understand the statement to be a request

for an attorney.” Davis, 313 S.W.3d at 339. If a defendant clearly invokes his right to counsel, all

interrogation by the police must cease until counsel is provided or until the suspect initiates further

conversation. Davis, 512 U.S. at 458; State v. Gobert, 275 S.W.3d 888, 892–93 (Tex. Crim. App.

2009).

         Anthony argues that, on two different occasions during the interview, he clearly invoked

his right to counsel and Sergeant Lopez was required to cease any questioning. The record reflects

that about half-way through the interview, Anthony told Sergeant Lopez, “I don’t got no attorney

present.” The interview continued.

         Towards the end of the interview, Anthony stated, “I’d rather talk to you with my court-

appointed.” Sergeant Lopez stopped all questions and explained, “because you said that, ‘cause

you . . . you just told me that, I gotta stop. . . . If you change your mind and you wanna talk about

it, I gotta read you your rights again and we gotta start all over. But that’ll be up to you.” Sergeant

Lopez informed Anthony that he was free to use the phone and then left the room.

         After some time, Sergeant Lopez returned to the room and Anthony asked where the

officers were taking him. Sergeant Lopez explained that he could not talk about the case with

Anthony without reading his rights again. Anthony told the officer that he wanted to talk to him.

Sergeant Lopez again recited each of the Miranda warnings to Anthony. Anthony affirmatively

stated that he understood his rights and that he wanted to talk with the officer. Anthony continued

to waffle on whether he wanted to discuss Cantu’s murder. Sergeant Lopez explained that if

Anthony did not want to talk about it, he was going to leave. Anthony replied, “I just don’t know
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where I’m gonna go if I sit here and talk to you, man.” At that point, Sergeant Lopez stopped the

interview.

       Although Anthony mentioned the word “attorney” and “court appointed,” neither of these

statements were unambiguous invocations of his right to counsel. Simply mentioning a lawyer, or

making comments about a lawyer, does not reach the unambiguous invocation required in Davis,

512 U.S. at 458, and its progeny.

       Based on a totality of the circumstances surrounding the interview, and considering the

evidence in the light most favorable to the fact finder’s conclusions, we cannot conclude a

reasonable officer would have understood Anthony’s statement as a Fifth Amendment invocation

of his right to counsel. See id.; Davis, 313 S.W.3d at 339.

       Accordingly, we overrule Anthony’s appellate issue regarding any violation of his right to

counsel.

                                    ADMISSION OF EVIDENCE

A.     Argument of Parties

       In his third issue, Smith contends the State failed to prove a proper chain of custody and

the trial court erred in admitting Cantu’s clothes and the testimony regarding the DNA tests.

B.     Standard of review

       We review a trial court’s decision to admit or exclude evidence under an abuse of discretion

standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Weatherred v. State,

15 S.W.3d 540, 543 (Tex. Crim. App. 2000); Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—

Austin 2013, no pet.). A trial court abuses its discretion if it acts arbitrarily or unreasonably,

without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380

(Tex. Crim. App. 1991) (op. on reh’g); accord Thompson v. State, 274 S.W.3d 776, 778 (Tex.

App.—San Antonio 2008, no pet.). When considering a trial court’s decision to admit or exclude
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evidence, we will not reverse the ruling unless it falls outside the “zone of reasonable

disagreement.” McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007); see also Jessop v.

State, 368 S.W.3d 653, 686 (Tex. App.—Austin 2012, no pet.).

       Proof of chain of custody authenticates evidence under rule of evidence 901(a). See TEX.

R. EVID. 901(a); Druery v. State, 225 S.W.3d 491, 503 & n.30 (Tex. Crim. App. 2007). Upon a

showing of authenticity, an appellate court affords the trial court great discretion in admitting the

evidence at trial. Druery, 225 S.W.3d at 503; accord Butler v. State, 459 S.W.3d 595, 600 (Tex.

Crim. App. 2015) (holding appellate courts apply liberal standard ensuring trial court’s

determination is within the zone of reasonable disagreement). Generally, the State satisfies chain

of custody when evidence establishes where the chain begins and ends, especially if it ends in a

laboratory. Mitchell v. State, 419 S.W.3d 655, 659 (Tex. App.—San Antonio 2013, pet. ref’d).

Evidence of fraud or tampering relating to the gaps in the chain of custody affect the weight given

to, not admissibility of, the evidence. See id. at 660; Dominguez v. State, 441 S.W.3d 652, 660

(Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Lagrone v. State, 942 S.W.2d 602, 617

(Tex. Crim. App. 1997)). “The chain of custody is conclusively proven if the officer is able to

identify that he or she seized the item of physical evidence, put an identification mark on it, placed

it in the property room, and then retrieved the item being offered on the day of trial.” Hartsfield

v. State, 200 S.W.3d 813, 818 (Tex. App.—Texarkana 2006, pet. ref’d).

       “Any gaps in the chain of custody go to the weight of the evidence, not admissibility;

however, proof should be shown as to the beginning and end of the chain.” Id. It is within the

jury’s purview “to determine whether an item of evidence is indeed what its proponent claims; the

trial court need only make the preliminary determination that the proponent of the item has

supplied facts sufficient to support a reasonable jury determination that the proffered evidence is



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authentic.” Butler, 459 S.W.3d at 600 (citing Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim.

App. 2012).

C.     Analysis

       We note Anthony’s complaint is based on alleged gaps in the chain of custody; he does not

assert any alleged tampering of the evidence. Anthony also concedes Cantu’s shirt was distinct,

but contends the jeans and belt were not.

       Sergeant Lopez and the medical examiner identified the jeans, belt, belt buckle, and shirt

as belonging to Cantu. The medical examiner testified that Cantu arrived at the morgue fully

clothed. She removed the clothes and marked them with a unique identification number.

       Similarly, Sergeant Lopez collected Anthony’s DNA pursuant to a valid search warrant.

The buccal swabs were marked with the unique identification number, initials, and date. Like the

portion of the jean pocket from which the DNA was obtained, the forensic scientist testified that

she verified all of the tested samples were marked with the same unique identifier. The DNA

testing occurred on two different occasions; on each occasion, the forensic scientist verified the

unique markings prior to testing. After completing the tests, the forensic scientist resealed the

package, and proceeded to mark the packaging with her initials and the date.

       At trial, Sergeant Lopez confirmed the numbers on the outside of the packaging matched

the unique identification number. Although the blood sample packages remained sealed, Sergeant

Lopez opened the exhibits containing the clothing in the courtroom and visually confirmed the

contents. The State offered the packaging, including the unique markings. The trial court found

the clothing, specifically the belt buckle, possessed fairly unique and readily identifiable

characteristics. On the record, the trial court compared the belt buckle in evidence with the belt

buckle depicted in the crime scene photographs. The State presented evidence of the beginning,

the middle, and the end of the chain. See Mitchell, 419 S.W.3d at 659–60. We cannot conclude
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the trial court’s findings were arbitrary or unreasonable. See Montgomery, 810 S.W.2d at 380;

Thompson, 274 S.W.3d at 778. Thus, the trial court did not abuse its discretion in denying the

motion to suppress based on Anthony’s chain of custody complaints. See Rodriguez, 203 S.W.3d

at 841.

          We overrule Anthony’s chain of custody issues on appeal.

                                        JURY INSTRUCTION

A.        Argument of Parties

          Smith argues that because there is no evidence as to Gary’s involvement in the shooting,

the trial court erred by charging the jury under the law of parties.

B.        Standard of Review

          Appellate courts review potential jury charge errors in a two-step process. See Hines v.

State, 383 S.W.3d 615, 626 (Tex. App.—San Antonio 2012, pet. ref’d) (citing Kirsch v. State, 357

S.W.3d 645, 649 (Tex. Crim. App. 2012)). The appellate court must first determine whether the

charge is erroneous. Kirsch, 357 S.W.3d at 649. If error exists, the court analyzes the level of

harm incurred by the defendant; the level of harm is contingent on whether the error was preserved.

Id.

          Here, because error was preserved, Anthony need only show he suffered “some harm” to

prevail on appeal. See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (citing

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g), superseded on

other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App.

1988); see also Rivas v. State, 486 S.W.3d 640, 649–50 (Tex. App.—San Antonio 2016, pet. ref’d).

For harm to result, however, the record must show “‘actual, rather than merely theoretical, harm.’”

Segovia v. State, 467 S.W.3d 545, 556 (Tex. App.—San Antonio 2015, pet. ref’d) (quoting Reeves,

420 S.W.3d at 816). “Neither the State nor the defendant has a burden to prove harm.” Reeves,
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420 S.W.3d at 816. To determine “some harm,” the appellate court evaluates “(1) the jury charge

as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant

factors present in the record.” Id. (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.

2013)); see also Segovia, 467 S.W.3d at 556.

C.     Analysis

       Assuming, without deciding, that the inclusion of the instruction on the law of parties was

erroneous, we find the error, if any, was harmless. See Cathey v. State, 992 S.W.2d 460, 466 (Tex.

Crim. App. 1999); see also Gilmore v. State, 397 S.W.3d 226, 244 (Tex. App.—Fort Worth 2012,

pet. ref’d). In general, an instruction on the law of parties may be given to the jury whenever there

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

the law of parties. See TEX. PENAL CODE ANN. § 7.01 (West 2011) (providing a person may be

charged in an offense committed by his conduct, if he acted as a principal, or that of someone else,

if the party acted as an accomplice); Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999);

accord Gilmore, 397 S.W.3d at 244. However, “[e]ven where proper objection is made at trial,

. . . [if] the evidence clearly supports a defendant’s guilt as the primary actor, error in charging on

the law of parties [is] harmless.” Cathey, 992 S.W.2d at 466; accord Ladd, 3 S.W.3d at 564–65.

       Neither defense counsel nor the State concentrated on Gary as the shooter; Gary was simply

offered to create reasonable doubt as to Anthony being the shooter. Several witnesses testified

that Anthony confessed to the shooting and provided details only someone present during the

offense would know. Additionally, the DNA evidence strongly supports Anthony’s presence at

the crime scene.

       Anthony contends, and we agree, there was no evidence tending to show his guilt as a

party. We, thus, conclude the jury likely did not rely on the law of parties’ instruction in arriving

at its verdict. The record does not support the trial court’s decision to include the instruction on
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the law of parties was calculated to injure Anthony’s rights or that Anthony suffered even “some

harm” as a result of the instruction. See Reeves, 420 S.W.3d at 816; Almanza, 686 S.W.2d at 171.

       Accordingly, we overrule Anthony’s final issue on appeal.

                                         CONCLUSION

       Having overruled each of Appellant Anthony Smith’s issues on appeal, we affirm the trial

court’s judgment.

                                                Patricia O. Alvarez, Justice

DO NOT PUBLISH




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