                            NUMBER 13-08-00023-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


COREY JOSEPH SCHUFF,                                                         Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                 On appeal from the Criminal District Court
                       of Jefferson County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez

       A jury convicted appellant, Corey Joseph Schuff, of the murder of Tonia Lynn

Porras. See TEX . PENAL CODE ANN . § 19.02(b)(1) (Vernon 2003). After finding that Schuff

was a repeat felony offender, the jury assessed punishment at confinement in the

Institutional Division of the Texas Department of Criminal Justice for life. See id. § 12.42
(Vernon Supp. 2008). By six issues, Schuff (1) challenges the legal and factual sufficiency

of the evidence supporting his conviction, (2) complains of charge error, and (3) asserts

that the trial court abused its discretion when it denied his motion for new trial. We affirm

as modified.

                                       I. FACTUAL BACKGROUND 1

        Early in the morning of October 29, 2005, Porras called 911 and told the operator

that she was worried about a former boyfriend who had been released from custody and

who would be coming after her in a green sports car stolen from a friend. Schuff, an ex-

boyfriend of Porras, made threats against her life after finding out that Porras had slept

with another man. On November 5, 2005, Porras's father noticed that a box or bag next

to Porras's car had not been moved in three days and decided to check on Porras. After

finding Porras's body on the floor of her apartment, he called 911. Porras had been bound,

gagged, and repeatedly stabbed.

                                   II. SUFFICIENCY OF THE EVIDENCE

        In his first four issues, Schuff contends that the evidence is legally and factually

insufficient to support his conviction. Specifically, he complains that the evidence is

insufficient to prove that he was the person who caused Porras's death with intent or

knowledge.

                          A. Standard of Review and Applicable Law

        In assessing the legal sufficiency of the evidence to support a conviction, we

consider all the evidence in the light most favorable to the verdict and determine whether,


        1
         As this is a m em orandum opinion, and the parties are fam iliar with the facts, we will not recite them
except as necessary to provide a general background here and, later, to explain the Court's decision and the
basic reasons for it. See T EX . R. A PP . P. 47.4.
                                                       2
based on that evidence and the reasonable inferences therefrom, a rational juror could

have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). This assessment affords appropriate deference "to the responsibility of the trier of

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic to ultimate facts." Jackson, 443 U.S. at 319. In

reviewing the legal sufficiency of the evidence, "we should look at 'events occurring before,

during and after the commission of the offense and may rely on actions of the defendant

which show an understanding and common design to do the prohibited act.'" Hooper, 214

S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)).

       In a factual-sufficiency review, the only question to be answered is "[c]onsidering all

of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a

reasonable doubt?" Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).

Evidence can be deemed factually insufficient in two ways: (1) "the evidence supporting

the conviction is 'too weak' to support the factfinder's verdict" or (2) "considering conflicting

evidence, the factfinder's verdict is 'against the great weight and preponderance of the

evidence.'" Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (quoting Watson

v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). When a reviewing court

conducts a factual-sufficiency review, it must defer to the jury's findings. Id.

       We measure the sufficiency of the evidence by the elements of the offense as

defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002,

pet. ref'd). Such a charge is one that accurately sets out the law, is authorized by the

                                               3
indictment, does not unnecessarily restrict the State's theories of liability, and adequately

describes the particular offense for which the defendant was tried. Gollihar v. State, 46

S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953 S.W.2d at 240.

       Circumstantial evidence, by itself, may be enough to support a jury's verdict.

Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999); see Smith v. State, 965

S.W.2d 509, 515 (Tex. Crim. App. 1998) (en banc). It is not necessary that every fact point

directly and independently to the defendant's guilt; it is enough if the conclusion is

warranted by the combined and cumulative force of all the incriminating circumstances.

Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) (en banc) (per curiam);

Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1994).

       The indictment alleged that on the date in question, Schuff "did then and there

intentionally and knowingly cause the death of an individual, namely: Tonia Lynn Porras

. . . by stabbing and cutting [Porras] with a deadly weapon, to-wit: a knife, that in the

manner of its use and intended use was capable of causing serious bodily injury and death

. . . ." A person commits murder if he "intentionally or knowingly causes the death of an

individual." See TEX . PENAL CODE ANN . 19.02(b)(1). A person acts intentionally "with

respect to . . . a result of his conduct when it is his conscious objective or desire to . . .

cause the result of his conduct." Id. § 6.03(a) (Vernon 2003). A person acts knowingly

"with respect to the result of his conduct when he is aware that his conduct is reasonably

certain to cause the result." Id. § 6.03(b) (Vernon 2003). A person's knowledge and intent

may be inferred from his "acts, words, and conduct . . . and the method of committing the

crime and from the nature of the wounds inflicted on the victim." Hart v. State, 89 S.W.3d

61, 64 (Tex. Crim. App. 2002).

                                              4
                                                 B. Analysis

        In this case, a rational fact finder could have determined the following from the

evidence: (1) Schuff and Porras had a volatile on-again-off-again relationship; (2) Natalie

Lingo told Schuff that Porras had slept with her husband, Brian Lingo,2 who was one of

Schuff's best friends;3 (3) after being told about the alleged sexual relationship, Schuff

made specific threats toward Porras;4 (4) Natalie told Porras about the threats and warned

her to stay away from Schuff because there "might . . . be domestic issues like in the past"

because "he was really angry"; (5) when Porras called 911 her voice was shaky and she

was extremely frightened and worried about an ex-boyfriend who had been released from

custody; (6) the ex-boyfriend had threatened her and would be coming after her in a green

sports car; (7) Schuff left the Lingo home in a teal green Camaro; (8) Schuff did not return

the car, and it was later reported stolen; (9) Schuff and Wesley Smith5 disposed of a stolen

green sports car; (10) the police located the car "stripped out," with parts left next to the

vehicle to weather; (11) the crime scene revealed that there had been a struggle and that

blood was found in every room of Porras's apartment, including along the walls and on the

ceilings; (12) Porras had been gagged and bound with duct tape;6 (13) her eyes had been



        2
            Natalie and Brian Lingo were divorced in March 2006.

        3
         See Guevara v. State, 152 S.W .3d 45, 50 (Tex. Crim . App. 2004) ("M otive is a significant
circum stance indicating guilt.") (citing Harris v. State, 727 S.W .2d 537, 542 (Tex. Crim . App. 1987)); see also
Reed v. State, 744 S.W .2d 112, 127 (Tex. Crim . App. 1988) (providing that evidence which m erely goes to
show m otive or opportunity of the accused to com m it the crim e m ay be considered in connection with other
evidence tending to connect the accused with the crim e).

        4
         Natalie testified that after she told Schuff that Porras had slept with Brian, Schuff said that he was
going to kill Porras, strangle her and not stop, and rape her. He also said that Porras deserved it.

        5
            W esley Sm ith was indicted for the sam e offense but was tried separately.

        6
            Porras's wrists were also bound with a therm al undershirt beneath the tape.
                                                        5
covered with duct tape, and an electrical cord had been wrapped around her neck; (14)

there were "indications" that Schuff's DNA was on the duct tape used to bind and gag

Porras, although it could not be determined that the samples matched Schuff with scientific

certainty;7 (15) Porras had blunt force injuries to the back of her skull and across her

eyebrows; (16) Porras had twenty-six stab wounds to the chest (including two stab wounds

into the heart and three into the left lung), arm (eight stab wounds), and back (nine stab

wounds); (17) the wounds were excessive and numerous, which is seen when there is a

relationship, emotion, and hatred involved, and not a random act of violence; (18) after

Porras's death, Schuff traveled from Jefferson County to Montgomery County,8 where he

met Gino Coelho; (19) Schuff told Coelho that he had stabbed a girl about twenty times;9

and (20) Schuff told Mark Branson that he "was on the run" and that "he was running from



        7
          The evidence also revealed that Schuff's DNA and a fingerprint from Schuff's right m iddle finger were
identified on a crushed beer can found in Porras's kitchen. The DNA serology analyst further testified that the
duct tape had DNA indications from the deceased, Schuff, and W esley Sm ith.

        8
         See Valdez v. State, 623 S.W .2d 317, 321 (Tex. Crim . App. 1981) (op. on reh'g) (en banc)
(explaining that while flight alone will not support a verdict of guilt, evidence of flight from a crim e scene is a
circum stance from which an inference of guilt m ay be drawn); see also W ilkerson v. State, 881 S.W .2d 321,
324 (Tex. Crim . App. 1994) (en banc) (stating that a finding of intent m ay be inferred from evidence of flight
from scene).

        9
        At trial, Gino Coelho first denied giving police a statem ent and responded that Schuff never told him
he stabbed anyone. Coelho later, however, testified as follows:

        Q: (The State)    But you do agree that the statem ent, "I stabbed that girl about 20 tim es,"
                          appears in your statem ent as a quote from Corey Schuff; is that correct?

        A: (Coelho)       (No response).

        Q.                That it appears –

        A.                Yes.

        Q.                – in your statem ent.

        A.                I – I m ean, I don't rem em ber saying it at all, to be honest with you; but if I –
                          if I signed it, I guess I said it. You know what I m ean?
                                                         6
the needle," comments Branson took to mean Schuff was running from the death

sentence. We conclude that this evidence supports the determination that Schuff was the

person that caused Porras's death with intent or knowledge.

       Schuff points us to the following evidence which he asserts is controverting

evidence: the State's DNA serology analyst could not say with scientific certainty that the

samples tested from the duct tape specifically matched Schuff's DNA. He asserts that the

DNA profile analysis, if believed, simply proves he was present at Porras's residence on

a prior occasion and nothing more. Schuff argues that, because Porras was moving back

and forth to Austin, the DNA could have been placed there when Schuff was helping

Porras pack. Relying on Ortiz v. State, Schuff also argues that the only link to Porras's

death is his presence in her home, which is not sufficient to support a conviction of murder.

See 577 S.W.2d 246, 248 (Tex. Crim . App. 1979) (providing "that it is well settled that

mere presence is not alone sufficient to support a conviction under Section 7.02(a)(2) [as

a party to the offense] . . . , although it is a circumstance tending to prove guilt which,

combined with other facts, may suffice to show that the accused was a participant"). In

addition, officers who investigated the crime scene testified as follows:                   (1) family

relationship violence can occur immediately without the attacker taking time or going "to

all this trouble"; (2) there had been no sexual assault as part of the homicide; (3) the

evidence of a struggle could also have been evidence of someone ransacking the

apartment looking for drugs or money;10 and (4) it would not be unusual for Schuff's

fingerprints to be inside the apartment because Schuff had apparently, on occasion, stayed

overnight at the apartment with Porras.


       10
        Drug paraphernalia and a sm all bag of m etham phetam ines were found in Porras's apartm ent.
                                                  7
       Nonetheless, viewing the evidence in the light most favorable to the verdict and

looking at events occurring before, during, and after the commission of the offense, we

conclude the evidence is legally sufficient for a rational jury to find Schuff guilty of murder.

Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. Viewing the evidence neutrally,

we conclude the evidence supporting the conviction is not so weak that the jury's

determination is clearly wrong and manifestly unjust or that the verdict is against the great

weight and preponderance of the evidence. See Laster, 275 S.W.3d at 518; Watson, 204

S.W.3d at 414-15. Thus, the evidence is also factually sufficient to support the conviction.

Issues one, two, three, and four are overruled.

                                      III. CHARGE ERROR

       By his fifth issue, Schuff complains that the trial court committed charge error when

it failed to limit the definitions of "knowingly" and "intentionally" that were given to the jury.

The State concedes error but contends that the harm was not egregious.

                       A. Standard of Review and Applicable Law

       In reviewing a claim of jury charge error, an appellate court must determine first

whether error actually occurred and, second, whether any resulting harm requires reversal.

Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc). If the error in

the charge was not the subject of an objection, as in this case, reversal is required if the

record shows egregious harm to the defendant. Bluitt v. State, 137 S.W.3d 51, 53 (Tex.

Crim. App. 2004) (en banc); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) (en banc). "For both preserved and unpreserved charging error, 'the actual degree

of harm must be assayed in light of the entire jury charge, the state of the evidence,

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

                                                8
any other relevant information revealed by the record of the trial as a whole.'" Patrick v.

State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995) (en banc) (quoting Arline v. State, 721

S.W.2d 348, 351-52 (Tex. Crim. App. 1986) (en banc)). "In assessing harm resulting from

the inclusion of improper conduct elements in the definitions of culpable mental states, we

'may consider the degree, if any, to which the culpable mental states were limited by the

application portions of the jury charge.'" Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim.

App. 1995) (en banc) (quoting Cook v. State, 884 S.W.2d 485, 492 n.6 (Tex. Crim. App.

1994)).

       "Murder is a 'result of conduct' offense, which requires that the culpable mental state

relate to the result of the conduct, i.e., the causing of the death." Roberts v. State, 273

S.W.3d 322, 328-29 (Tex. Crim. App. 2008) (quoting Schroeder v. State, 123 S.W.3d 398,

400 (Tex. Crim. App. 2003) (en banc), citing Cook v. State, 884 S.W.2d 485, 491 (Tex.

Crim. App. 1994)). Because the actor must have a particular mind set—intentional or

knowing—regarding the prohibited result, the State must "prove that appellant intentionally

caused the death of the deceased which is a result of conduct." Patrick, 906 S.W.2d at

491 (citing Cook, 884 S.W.2d at 490). The culpable mental state must be limited to the

result of the conduct, and failure to do so constitutes error. Cook, 884 S.W.2d at 491.

                                        B. Analysis

                                          1. Error

       In the abstract portion of the charge, the trial court defined the words "intentionally"

and "knowingly" using the following full statutory definitions of the culpable mental states:

       INTENTIONALLY: A person acts intentionally, or with intent, with respect to
       the nature of his conduct or to a result of his conduct when it is his conscious
       objective or desire to engage in the conduct or cause the result.

                                              9
      KNOWINGLY: A person acts knowingly, or with knowledge, with respect to
      the nature of his conduct or to circumstances surrounding his conduct when
      he is aware of the nature of his conduct or that the circumstances exists [sic].
      A person acts knowingly, or with knowledge, with respect to a result of his
      conduct when he is aware that his conduct is reasonably certain to cause the
      death.

See TEX . PENAL CODE ANN . §§ 6.03(a) (defining "intentionally"), 6.03(b) (defining

"knowingly"). Based on the above, we conclude, as the State concedes, that the trial court

committed charge error because the definitions of "intentionally" and "knowingly" were not

limited to the "result of his conduct"—the death of the deceased. The trial court erred in

defining the culpable mental states to include "the nature of his conduct" and "the

circumstances surrounding his conduct."

                                         2. Harm

      Having found error, we must determine whether Schuff suffered egregious harm

because the error in the charge was not the subject of an objection. See Bluitt, 137

S.W.3d at 53; Almanza, 686 S.W.2d at 171. As set out above, we do so by looking at the

entire jury charge, the state of the evidence, the argument of counsel, and any other

relevant information revealed by the record of the trial as a whole. See Patrick, 906

S.W.2d at 492.

                                 a. Entire Jury Charge

      The relevant portion of the trial court's charge in this case read as follows:

             Now, if you believe from the evidence beyond a reasonable doubt that
      in Jefferson County, Texas, on or about the 2nd day of November, Two
      Thousand and Five, the defendant[,] COREY JOSEPH SCHUFF, did then
      and there intentionally or knowingly cause the death of an individual, namely:
      TONIA LYNN PORRAS . . . by stabbing and cutting [Porras] with a deadly
      weapon, to wit: a knife, that in the manner of its use and intended use was
      capable of causing serious bodily injury and death, you shall find the
      defendant guilty of the offense of murder.

                                            10
               Unless you so find, or if you have a reasonable doubt thereof, you
       shall find the defendant NOT GUILTY.

       This application paragraph correctly instructed the jury on the law. Although the

definitions of "intentionally" and "knowingly" in the abstract paragraphs of the charge set

forth complete statutory language, the application paragraph stated that Schuff "did then

and there intentionally or knowingly cause the death of [the victim] . . . ." In the application

paragraph, the terms "intentionally or knowingly" directly modify the phrase "cause the

death." As explained by the Patrick court, "[r]eferring back to the definitions of culpable

mental states, it is obvious from the application paragraph that the 'result of conduct' and

'cause the result' language are the applicable portions of the full code definitions." Id. at

493. Our entire-jury-charge review favors finding the error not to be egregious. See id. at

492.

                                 b. State of the Evidence

       We have already concluded that the evidence in this case is both legally and

factually sufficient to support Schuff's conviction. Therefore, our state-of-the-evidence

review weighs in favor of finding no egregious harm. See id.

                                 c. Argument of Counsel

       Reviewing counsel's arguments made to the trial court, we note that Schuff did not

object to the State's argument during trial, and, thus, cannot now complain on appeal. See

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc). Nevertheless, for

purposes of this analysis, we also note that the State made no attempt to modify the

language in the application paragraph using the language found in the definitions. The

State did not discuss the terms "intentionally" or "knowingly" during its arguments. Rather,


                                              11
the State's arguments directed the jury to the result of Schuff's conduct. Thus, this review

favors a finding that the charge error was not egregious. See Patrick, 906 S.W.2d at 492.

                                      d. Other Relevant Information

       We find no other relevant information revealed by the record of the trial as a whole

that supports a conclusion that the charge error was egregious. This determination again

favors the State's position that the error did not cause egregious harm. See id.

       Accordingly, we conclude that no egregious harm resulted from the trial court's

failure to limit the definitions of culpable mental states to proving the conduct element of

the underlying offense. We overrule Schuff's fifth issue.

                                         IV. MOTION FOR NEW TRIAL

       Schuff contends, by his sixth issue, that the trial court abused its discretion in

denying his motion for new trial, which urged that the verdict was contrary to the law and

the evidence. See TEX . R. APP. P. 21.3(h). Schuff asserts that a juror discussed the case

with others. In the motion, Schuff contends that the jury relied on the testimony of a co-

defendant who did not testify at his trial.11 Schuff reasons that the testimony of the co-

defendant must have been secured through external sources and not from the evidence

adduced at his trial, and therefore, the verdict was contrary to the law and the evidence.

                             A. Standard of Review and Applicable Law

       An appellate court will generally review a trial court's ruling on a motion for new trial

under an abuse of discretion standard of review. Holden v. State, 201 S.W.3d 761, 763

(Tex. Crim. App. 2006); Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004);

Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).




       11
            This reference is to Sm ith. He did not testify at Schuff's trial.
                                                         12
       We do not substitute our judgment for that of the trial court, but rather we
       decide whether the trial court's decision was arbitrary or unreasonable. We
       must view the evidence in the light most favorable to the trial court's ruling
       and presume that all reasonable factual findings that could have been made
       against the losing party were made against that losing party. Thus, a trial
       court abuses its discretion in denying a motion for new trial only when no
       reasonable view of the record could support the trial court's ruling.

Charles, 146 S.W.3d at 208.

       The defendant generally has the burden of proof on a motion for new trial. See

Patrick, 906 S.W.2d at 498. The proponent of the motion for new trial bears the initial

burden of establishing facts entitling him to the relief sought. See Marquez v. State, 921

S.W.2d 217, 222 (Tex. Crim. App. 1996) (en banc).

                                         B. Analysis

       In support of his motion for new trial, Schuff attached the affidavit of his trial counsel.

The affidavit provided the following:

       A posting on the internet website, www.courttv.com[,] message boards stated
       that the person pos[t]ing this item was related to a juror in this trial. He
       states on a posting dated November 30, 2007, that the juror informed him
       the jury had relied upon testimony by a co-defendant. This person never
       testified at trial. The only means a juror had to discover the information
       contained in the co-defendant's statement was to read or listen to the news
       media. Basing a decision on information contained outside the record or
       listening or reading the news would be a violation of the oath and instructions
       given the jurors before the trial.

Attached to counsel's affidavit was a copy of postings regarding this case from the

identified website. No other affidavits were attached to the motion. In addition, at the

hearing on Schuff's motion for new trial, no testimony or affidavit was received from any

juror alleging that information was received from any source other than evidence or

testimony at trial.

       Viewing the evidence in the light most favorable to the trial court's ruling and

presuming that all reasonable factual findings that could have been made against the

                                               13
losing party were made against that losing party, we conclude that the trial court did not act

arbitrarily or unreasonably in denying relief. See Charles, 146 S.W.3d at 208. Schuff did

not meet his burden. See Patrick, 906 S.W.2d at 498. He did not establish facts entitling

him to the relief sought. See Marquez, 921 S.W.2d at 222. Thus, the trial court did not

abuse its discretion. See Holden, 201 S.W.3d at 763. We overrule Schuff's sixth issue.

                              V. MODIFICATION OF JUDGMENT

       The trial court's judgment mistakenly recites that Schuff pleaded guilty to the

offense. The record shows Schuff pleaded not guilty to the charges in the indictment.

Because the necessary information is available in the record, on our own motion we modify

the trial court's November 30, 2007 judgment to show Schuff entered a not guilty plea. See

TEX . R. APP. P. 43.2(b) (setting out that a judgment may be modified and affirmed as

modified on appeal); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (same);

Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.–Dallas 1991, pet. ref'd) (providing

that an appellate court has the authority to modify incorrect judgments, sua sponte, when

the necessary information is available to do so).

                                      VI. CONCLUSION

       Accordingly, we affirm the trial court's judgment as modified.



                                                         NELDA V. RODRIGUEZ
                                                         Justice

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

Memorandum Opinion delivered and
filed this 15th day of October, 2009.




                                              14
