### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00110
- CR

John White, Appellant

v. The State of Texas, Appellee

FROM THE 22ND DISTRI CT COURT OF HAYS COU NTY NO. CR
- 14
- 0943, THE HONORABLE R. BRUCE B OYER, JUDGE PRESIDIN G

M E M O R A N D U M O P I N I O N

John White was charged with murder in an indictment alleging three alternate methods: (1) intentionally or knowingly causing Nicolas Campos’s death; (2) intentionally causing serious bodily injury and committing an act clearly dange r ous to human life that caused Campos’s death; and (3) felony murder

. See Tex. Penal Code § 19.02(b)(1), (2), (3) (defining offense of murder). A jury convicted W hite of murder , and t he district court assessed punishment at thirty years ’ imprisonment

. S e e id

. § 19.02(b). White raises four issue s on appeal
conte nding that there was error in the jury charge and a fifth issue contend ing that the judgment of conviction should be reformed to reflect the proper stat ute for the offense

. We will modify the dis tric t court’s judgment to correct ly reflect the statute for the offense and affirm the judgment as modified

.2 BACK GROUND Whit e was charged wi th murder ing Campos by stabbing or striking him to death du ring an early

- mo rning attack i n a residential area

. For about a month and a half before the attack, White had been living at his co

- worker Mauricio Rodriguez

- Frias ’ s house along with White’s half

- brother, Edward Rios ; and Rodriguez

- Frias ’ s two stepdaughters , Sabrin a Sepulveda 1 and Step h a nie Sepulveda

. 2
In the h ours before the attack, White and Rodrig u ez - Frias went to a bar where they drank and did cocaine in the bathroom. While at the bar, Rodriguez

- Frias saw Campos, a

man that he kn ew but that White did not . Campos asked Rodrig uez - Frias fo r a ride home . O n
t he wa y, Campos suggested that they all continue drinking beer s at Rodrig uez - F rias ’ s house instead

. During the car r i de, Rodrig uez - Frias became upset when re membering that Campos ’ s brothers used to beat him up and spit in his face when they lived in Mexico

. W hite, Campos , and Rodriguez

- Frias arrived at Rodrig u ez - Frias ’ s house about midnight , where they continued drinking and talking for ab out an hour

. Rodrig u ez - Frias and Campos began a rguing and then phys i cally fight ing

. Rios , who wa s inside the house, t esti fied that Sabrina calle d him to help break up the fight. Rios saw White kick Campos in the head and saw Rodrig u ez - Frias hitting Campos. White denied fighting with Campos “ at t he begin ning , ” but he recalled that Rodrig uez - F rias pu ll ed out a knife som e time during the fight

. Sabrina stated that she and Rios were able to separate White and Rodriguez

- Frias from Campos. Campos ran from the house and hopped some fences

. W hite and Rodrig u ez - Frias pursued him and resumed fighting at a locat ion down the stre e t

. White and Rodrig uez - Frias

1 Sabrina Sepulveda was also John White’s ex

- girlfriend.

2 Stephanie Sepulv eda was also Edward Rios ’ s girlfriend

.3 returned to the house three times a nd left again to fight with Campos , but Campos never
ret u r ne d

. The la s t time that White and Rod rigue z - Frias re turned to the house, they had blood on their clothing. R odrig u ez - Frias packed a sui t case and left

. Later that morning, a child ridi ng a school bus sa w a body in a ditc h and r eported the sighting to his mother

. T h e mother went to the area that her son described , discovered the bod y of a deceased male , and called p olice

. Police id en tif ied the deceased as Campos an d interviewed White

. White gave p olice detectives s everal videotaped statements , admitted into evidence, with varying versions of his involvement i n Campos ’ s attack. When asked what he

was angry ab out, White said that C amp os “ was tal k ing sh i t about my brother ’ s [Rios ’ s ] girlfri e nd [Stephanie]

. ” According to White , Campos told him , “ y ou r s ister

- in

- law is fine ” and “ I wanna rape her

. ” White said that after Campos hopped the fence, he and Rodrigue z - Frias went looking for him , with White on foot and Ro driguez

- Frias in a car. Once they found him , they “ beat the guy up a little b it, left him right there, then [th e y] came back to the house. ” After Rodrig uez Frias heard dogs barking, he to l d White , “ I think h e ’ s sti ll there , ” an d they got in a car to look for Campos

. Wh ite sa i d that wh ile they were in the car, Rodriguez

- Frias told him that when he foun d Campos, he was going to kill him

. They did not find him while driving, so they went back to the house , lef t the car , and we nt lo oking for him on foot

. Rodriguez

- Frias w alked through backyards , and White w alked in the area of the street

. Whi t e said t hey found Campos “ in the ditch where we had left him before

. ” H e then explained that they had left him “ o n the road and he pro b abl y like went down to the ditch so

we couldn ’ t find him. ” When Campos saw them, he got up and started to run , but Rodrig u ez Fria s tripped him and “ we were bea ting him up. ” White saw Campos “just laying there” in the4 ditch “having proble m s breathing.” T hen W hite told Rodriguez

- Frias , “ You know what, I ’ m done , and I wanna go bac k. ” White began walking away with Rodrig uez - Frias follow ing him. Then Rodrig u ez - Frias mumbled something to White and returned to C ampos
. White said that when h e looked back he saw R odrig u ez - Frias with Campos , about eight to ten feet away, and Rodrig u ez - Frias was moving his arms and White was “ pretty sure that he [Rodrig ue z - Frias ] was stabbi n g him [Campos]

. ” White said that he was “ pretty sure ” that Campos was u n conscious. Whi t e wal ked home an d changed his clothes , which he said had blood on th em but not “ excessive blood , I just had like a couple of drops

. ” White told Sabrina ,

“ I think Mauricio killed him , ” but White did not call la w enforcement or seek assistance for
C ampos
. W hite later told detectives what he had been planning when he and Rodriguez

Frias we nt looking for Campos:

Detective : When y ’ all went to look for him in the car, what was the plan then?
W hite : Uh to find him, just beat him up , and maybe ju st

. . . Detec t ive: What? White:

. . . kill him. Detective : T he plan was to go kill him? White: Yeah.

. . . . Detective : You guys went down there to kill the guy, right? White: Yeah.5 Detective: I mean that was the whole point. How did you think you wer e gonna d o it? What was your plan? I mean, you’re mad, you gott a have some plan you’re gonna do

— White: I was just gonna straight up beat him up, beat him up , until , you know

— Detective: ’Til he died? White: Yeah

.

A medical examiner determined that Campos s ustai n ed mult iple stab wounds, including one to his heart

. The medical examiner ruled Campos ’ s death a homi cide cause d by

“ stab wounds with blunt force injuries as contri butory factors

. ” Blood s ta i ns on White ’ s sho rts and shoes underwent forensic test i n g
. A D NA an alys t te stified that the DNA profile from a stain on the front of th e shorts wa s consistent with the DNA profile of Campos. A nother forensic scientist testified that she obtain ed a DNA p r ofile from t he shoe a nd that Rodriguez

- Frias and White w ere ex c luded as cont ributors of that single

- source DNA pro file, but Ca mpos could not be excluded as the contributor

. A fter the parties rested their cases, th e jury received a charge address ing the three legal theories from White’s indictment by which he c ould be found guilty

— acting alone or as a party

— of Campo s’s murder

. See Tex. Penal Code § 19.02(b)(1)

- (3). White made no objections to the court’s charge. T he jury returned a general verdict finding White guilty of murder , and he

was sentenced t o thirty years ’ imprisonment . T hi s appeal follo wed

.6 D I SCUSSION Charge erro rs In his first four appellate issues, White complains about errors in the jury charge

. We review alleged jury

- charge error in two steps: first, w e determine wh ether error exists; and if
so, we evaluate whether any harm re s u lt in g from such err o r require s reversal. See Arteaga v.
State , 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Alm anza v. Sta te , 686 S.W.2d 157, 171 (Tex. Crim. A pp. 1985) (op. on reh ’ g)); N g o v. S tate , 175 S.W. 3 d 738, 743 (Tex. Crim. App. 2005). The tria l court must deliver to the jury a written charge distinctly setting forth the law applicable to the case

. Tex. Code Crim. Proc. art. 36.14. Ju ry instr uctions m ust apply the law to the facts adduced at trial and conform to allegations in the indictment

. Sanchez v. State , 376 S.W. 3d 767, 773 (Tex. Crim. App. 2012). Th ose instructions should be reduced to the theories that are supported by the evidence a t trial. Moulton v. State , 395 S.W.3d 804, 810 (Tex. Crim. App. 2013)

. W h i t e w a s c h a r g e d w i t h m u r d e r u n d e r the law of parties

. T he l a w o f p a r t i e s provides that “ [ a ] person is criminally respon sible as a party to an offense if the offense is committed by his own c ondu c t , by the conduct of another for which he is criminally respo nsible,

or by both

. ” Tex. P enal Code § 7.01(a)

. A person’s participation as a party may be shown by events occurring before, during, and after the commission of the offense, and m a y be dem onst r ated b y actions show i ng an understanding and common design to do the prohibited act. Salinas v. State , 163 S.W.3d 734, 739

- 40 (Tex. Crim. App. 2005); see Briggs v. State , No. 03

- 11

- 00275

- CR, 2012 Tex. App. LEXIS 7131, at *44 (Tex. App.

— Austi n Aug. 24, 20 1 2, no pet.) (mem. op

. , not designated for publication) . Circumstantial evidence may be used to prove a7 person’s status as a party to an offense. Beltran v. State , 472 S.W.3d 283, 290 (Tex. Crim. App. 2015). The jury charge in this case ad dressed th e l aw of p arties in a section titled
“Res ponsi bility for Cond u ct of Another.” This section quoted the law of parties from the Penal Code and instructed the jury on two theories of party liability: “intent to promote and assist” and conspiracy. Id . §§ 7.0 1, .02(a)( 2), (b). The first theor y sta tes t hat “ [a] person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the com mission of the offense, he solicits, encourages, directs, aids, or att empts t o aid the other person to comm it th e offense. ” Id

. § 7

. 02(a)(2). The second theory states that
[i] f , in the attempt to carry out a conspiracy to commit one felony, another felo ny is committed by one of the conspirators, all conspira tors are g uil ty of t he felony actually commit ted, thoug h having no int e nt to commit it, if the offen se was committed in fur therance of the unlawful purpose and was one that should have been anticipate d as a result of the carrying out of the consp i racy.

I

d . § 7.02( b ). At th e end of this party

- liabil ity sectio n, the charge s tated, “A defendant is guilty of an offense committed by another under the law set out here even if that other person has been acquitted, has not been prosecuted or convicted, has been convicted of a diffe rent offense or of a diffe rent type of offense, or is immune from prosecution.”

1. A bstract and application paragraphs of charge as to murder White now complains about error in the abst r act and application p aragraphs of the charge . He co n tend s that the abstract paragraph gav e an incor rect descripti o n of what is required to be a party to murder and did not instruct t he jury that a defendant must intend the victim’s de ath a nd the act clearly dangerous to human life. Further, h e contends th a t the applic ation8 p ar agraph was erro n eous becau se it “ authoriz ed his conviction as a party to murder on a legally invalid ba sis ” and because it did not instruct the jur y that to be g uilty as a party, he had to intend
Cam pos ’ s death and intend tha t Rodrigu e z - Fri a s comm it an act clearly danger o us to huma n life

. The abstract paragraphs of a charge “ serve as a glossary to help the jury understand the meaning of concepts and terms used i n the applica tion paragraphs of the charge. ” Crenshaw v. State , 378 S.W. 3 d 460 , 4 66 ( Tex. Crim. App. 2012)

. T he applica tion paragraph is the portion of the jury charge that applies the pertinent penal law, abstract defi nitions, and general legal principl es to the facts and indictment allegations of a given case

. Cortez v. St a te , 4 69 S.W. 3d 593, 598 (Tex. Crim. A pp. 2015)

. Here, the abstract a nd application paragraph s of the jury charge addressed the three legal theorie s from White ’ s indictment by which he could be found guilty

— acting alone or
as a p arty

— of Campos ’ s murder : ( 1) co mmit tin g an intentional or know i ng killing ; ( 2) inten ding
to c ause se rious bodily injury and committing an act dangero us to human life resulting in death ; and (3) felony m urder

. See Tex

. Penal Code § 1 9.02(b)(1)

- (3)

. The ch arge included a definitio n of a ggra vat ed assault, the underlyi n g felo ny a lleged for felony murder

. See id . § 22.02

. The charge also defined the culpab le mental states of “ intentionally causing the death of an individual , ” “ knowingly causing the death of an indi vidual, ” “ inte ntio n ally caus ing serious bodily injury, ” and “ knowi ngly causing bodily injury

. ” See id

. § 6.03(a), (b). The abstract paragraph o f t h e c h a r g e addr essed the e l e m e n t s o f murder and
aggrava ted ass a ult :9 Relevant Statutes A person commits murder if the person

— 1) in tenti on ally or knowingly causes th e death of an individual, or 2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the de ath of an individual, or 3) commits or attempts to commit a felony, other t han m ansla ug hter, and in the course o f and in f urtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an a ct clearly dangerous to human life that causes the death of an individual.
To p rove t hat the defendant is guil t y of murde r as charged in the indictment, the State must prove, beyond a reasonable doubt, various elements. The elements ar e that

— 1. a. the defendant, either acting alone or as a party, caused the death of an individu a l; a nd b. did this intentionally or knowing ly; and

c. used or exhibited a deadly weapon during the commission of or immediate flight from this offense; or
2. a. the defen dant, either acting alone or as a party, committed an act clearly dangerou s t o h uman life; and b. this act caused th e death of an individual; and

c. had the intent to cause serious bodily injury; and d. used or exhibited a deadly weapon during the commission of or immediate flight from this offense; or
3. a. the defendant, ei the r ac ting alo ne or as a party, committed or attempted to commit a felony, other than manslaughter; and b. in the course of and in furtherance of the commission or attemp t, or in immediate flight from the commission or attempt o f that felony, com m it ted or attempted to commit an ac t clearly dangerous to human life; and10 c. the act clearly dangerous to human life caused the death of an individual; and d. used or exhib ited a deadly weapon during the commission of or immediate fli ght from this of f e nse. A person commits ag gravate d assault if the person

— 1) intentionally or knowingly causes bodily injury to another and uses or exhibits a deadly weapon during the commis sion of the assault or 2) intentionally or knowingly causes serious bodily injur y t o an other. To prove that the defendant is guilty of agg ravated assault, the State must prove, beyond a reasonable doubt, various elements. The elements are that

— 1. a. the defendant, either acting alone or as a party, caused bodily injury to another ; a nd b. i. acted with intent t o cause bo dily injury or wit h knowledge that he would cause bodily injury; ii. used or exhibited a deadly weapon during the commission of or immediate flight from this offense; or
2. a. the defendant, either act i ng alo ne or as a party, caused s erious b odily injury to another; a nd b. did this intentionally or knowingly. Aggravated assault is a felony.

Th e a pplication paragraph of the charge stated:

Application of L aw to Facts You must determine whether t h e St at e has proved, beyond a re a sonable do ub t, various elements. The elements are that the defendant, either acting alone or as a party to the offense as described above , in Hays County, Texas, on or about September 29, 2014,11 1. a. caused the death of Nico l as C am pos by stabbing him with a knife o r sharp object and b. caused the death of Nicolas Campos either intentionally or knowingly; and

c. used or exhibited a deadly weapon during the commission of or immediate flight from thi s offense or
2. a. committed a n a c t clearly dang erous to huma n life by s tabbing Nicolas Campos with a knife or sharp object and b. caused the death of Nicolas Campos; and

c. intended to cause serious b odily injury to Nicolas Campos; and d. used or exhibite d a deadly weapon during t h e c om mission of or immedi ate f l ight f rom this offense; or
3. a. committed or attempted to commit aggravated assault; and b. in the course of and in furtherance of the co m mission or attempted commission, or in immediate flight from the commission or at t e mp t ed commission of aggra vated assault , c ommitted or attempted to commit an ac t clearly dangerous to human life by stabbing Nicolas Campos with a knife or sharp object; and

c. caused the death of Nicolas Campos; and d. used o r exhibited a deadly weap o n d u rin g the commission of or im m ediate f li ght from this offense. You are instructed that aggravated assault is a felony other than manslaughter. Before you may convict the defendant of murder, each of you must agree that the Stat e has p roved, beyond a r e as o nab le doubt, all of th e elem e nts unde r 1., 2., or 3., listed above. All of you need not agree on which theory of murder applies, so long as each of you finds that all of the elements of one or more of the theories listed above h ave been proven beyond a r e aso nable doubt. If yo u all a gree the S tate has failed to prove, beyond a reasonable doubt, either 1., 2., or 3., listed above, you must find the defendant “ not guilty ” o f Murder and so indicate on the Verdict Form.12 If you all agree the State has pro v e d, bey ond a reasonable do ubt, a l l of the e lements under 1., 2., or 3., listed above, you must find the defendant “ guilty ” of Murder and so indicate on the Verdict F orm
. Relying on Nava v. State , 415 S.W.3d 289 , 299

- 300 (Tex. Crim. App. 2013), White compl ains th at the abstract an d application paragraphs of the charge allowed the jury to convict him as a party to murder without finding beyond a reasonable doubt that he intended Campos ’ s death and intended that Rodriguez

- Frias stab Campos. White states that intending to assist another person in the offense of murder means intending both t he death of the victim and the unreasonably dangerous act, regardless of what is required of the principal actor. See id

. (“Combining the language of § 7.02(a)(2) with the felony

- murder statute, then, requires an intent to promote or assist, no t only the commission of the underlying felony and the unreasonably dangerous act, but also the result of the offense of felony m urder

— the death of an individual.”). We agree that the charge contained this error.

2. Agg ra vated
- ass ault instruction for felony murder
W hite also contends that the charge was erroneous because the application paragraph for felony murder allowed the jury to consider whether a deadly weapon was used or exh ibited in “ immediate flig ht ” from the as sault

. Thus, the jury was instructed that it could convict White if he , acting as a party, caused bodily injury to Campos ; acted with i ntent to cause bodily injury; and Rodriguez

- Frias used or exhibited a deadly wea po n

— during Campos ’ s assault

or

— during Wh ite’s immediate flight from the offense. The Stat e acknowledges that the

“ immediate fli ght ” phrase was erroneously included

. We agree that the charge contained this

error.13 3 . C onspirac y instruction
W hite further contends that the charge was err oneous b ecause it provi ded the definition o f conspiracy under section 7.02 (b) when setting for th the law of p arties , but it did not authori ze the jur y to co nvi c t on th at basis b y incorporating that t heor y into the applicati on paragraph of the charge.
W hen an unob ject ed

- to charge includes abstract in structions on th e law of parties and the a pplication paragr aph i ncorporates those instructions by reference

— authorizing the defendant’s conviction based on a finding that he act ed “alone or as a party”

— the jury is autho rize d to convict on the parties theor y. See Greene v . State , 240 S.W.3d 7, 15 (Tex. App.

— Austin 200 7 , pet. ref’d); see also Marvis v. State , 36 S.W.3d 878, 880 (Tex. Crim. App. 2001) (“[T]h e use of the phrase ‘act ing togeth er’ in the application portion o f th e charge is a reference to the abstract portion, which equates ‘acting toge ther’ with ‘party’”); Chatman v. State , 846 S.W.2d 329, 332 (Tex. Crim. App. 1993) (concluding that “acting alo ne or as a party, as tha t term has been defined,” generally applie d la w of parties to facts in application paragraph). Here, the application para graph did not express l y apply the abstract law of parties to the facts of the case; rather, it incorporated the abstract paragraph on p arty liab ility by asking the jury to consi der White’s conduct “either acting alone or as a part y to the offense as descri bed above[ .]” The pa r ty

- liability paragraph specified that “a defendant is guilty of an offense committed by a nother under the law set out here ” immediately after the instructi ons on the “intent to promote and assist” and “conspi racy” t heor i es of party li ability. See Tex. Pe n al Code § 7.02(a)(2), (b). Thus, the application paragraph authorized White’s conviction for the murder of Campo s by White’s own cond uct and by Rodriguez

- Fria s’s conduct for which White was criminally respon sible as a party under eit her theory of party l i ability. See Greene , 240 S.W.3d14 at 15 (rejecting defendant’s contention that charge was inadequate to authorize his conviction withou t directly applying l aw o n criminal responsibility for conduct of co

- consp irator to facts of case in applicati on paragrap h ). We conclude that there was no error in this portion of the ch arge
.

4 . H arm analysis Having found erro r in the jury charge, we must consider whether White was egregiously harmed by such error. White acknowledge s that he fai led to object to any error in the jury c harge at trial. When a defendant fails to object to the district court’s charge, any charge erro r will not result in reversal of the convict ion without a showi ng of egregious harm that deprived the defendant of a fair and impartial trial. Chambers v. State , 580 S.W.3d 149, 154 (Tex. Crim. App. 2019). Such harm must be actual and not merely theoreti cal. Id . Charge error is considered egregi ously harmful when it “affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Arteaga , 521 S.W.3d at 338. “Egregious harm is a ‘high and difficul t standard’ to meet, and such a determination ‘must be borne ou t by the trial record.’” Villarreal v. State , 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (quoting Reeve s v. State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). O verwhelming

e vidence of guilt plays a determinative role i n resolving the i s sue and may be considered when assessing jury

- charge error. Sanchez , 376 S.W.3d at 775

. “In examining the record for
egr egious harm, we consider the entire jury char ge, the state of t he evidence, the closing arguments of the parties, and any other relev ant information in the record.” Arteaga , 521 S.W.3d
at 338.15 Initially, we note that unlike the jury charge in Nava , which addressed the separate offenses of felony mur der, theft, and at tempted theft, this jury charge addressed the single offense of murder as alleged under three alternat ive legal theories. Cf . 415 S.W.3d at 294. When a jury charge alleges alternative theorie s, harm must be measured at least in part agai nst the likelihoo d that the jury’s verdict was actually based on an alternative availabl e theory of culpability that wa s not affected by erroneous portions of the charge. Sanchez , 376 S.W.3d a t
775 (considerin g charge that presented jury with options of f inding murder under sections 19.02(b)(1) or 19.02(b)(2) of Penal Code).
T hus, “[w]he n a jury returns a general guilty verdict on an indictment charging alternate methods of committing the same offense, the ve rdict stands ‘if the evidence is sufficient
to support a finding under any of the theories submitted.’” Id . (quoting Kitchens v. St at e , 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)); Aguirre v. State , 732 S.W.2d 320, 326 (Tex. Crim. App. 1987) (“Since we ha ve already found the evidence sufficient to su pport a conviction under Section 19.02(a)(1) murder, we will not review the sufficienc y of the evidence to show a Section 19.02(a)(3) murder”); McDow v. State , No. 05

- 17

- 01201

- CR, 2019 Tex. App. LEXIS 5296, at *22 (Tex. App.

— Dallas June 25, 2019, no pet.) (mem. op., not designated for publication) (concluding that because evidence was suffi ci ent to support defendant’s murder convictions under sections 19.02(b)(1) and 19.02(b)(2), any error in jury charge as to felony

murder allegations under section 19.02(b )(3) did not cause defendant egregious harm); Fuentes

Sanchez v. State , No. 03

- 12

- 00281

- CR, 2014 Tex. App. LEXIS 4222, at *27 (Tex. App.

— Austin Apr. 17, 2014 , no pet. ) (mem. op., not designated f or publication) ( noting that charge permitted jury to convict defendant “ either acting alone or as a party to t h e aggravated

- sexual

- assault offenses under at least one theory that was overwhelmingly supported by the evidence ” ); accord16 Hedgpeth v. Pulido , 555 U.S. 57, 61 (2008) (“An instructional error arising in the context of multiple theories of guilt no more vitiates all the jury’s findings than doe s omission or mis statement of an element of the offense when only one theory is submitted.”); United States v.
Barraza , 65 5 F.3d 375, 382 (5th Cir. 2011) (noting that e rror may be harmless if jury, convicting on invalid theory of guilt, necessarily found f acts establishing guilt on valid theory). Here, the jury had strong evidence to support White’s murder conviction under

se ction 19.02(b)(1) of the Penal Code , including evidence that:

• White saw that Rodriguez

- Frias had a knife when the fight with Campos b egan o utside the house;

• White knew Rodriguez

- Frias wanted to kill Campos;

• White was angry at Campos;

• White joined Rodri guez - Frias in chasing and beating Campos;

• Whi te helped Rodriguez

- Frias look for Campos and planned to kill him;

• White saw Campos hav ing di fficulty breathing and possibly unconscious but left him there in the ditch;

• White int ended to beat up Campos unti l he died; and

• Campos’s death was caused by “stab wounds with blunt force injuries as contributory factors.”

a. E ntirety of the c harg e As to the entire ty of the charge, the jury w as instructed that White could be convicted of murder ing Campos based on Whi te ’ s own conduct or as a party. See Tex. Pena l Code §§ 7.0 1 , .02

. We have noted that the charge contained error bec ause the abstract and application paragraphs of the charge allowed White ’ s murder conv ict ion as a party without17 requiring a finding beyond a reasonable doubt that White intended Campos’ s death and that White intended for Rodriguez

- Frias to stab Campos , even as to the offen se of felony murder

. See N ava , 415 S.W.3d at 299

- 300 ; cf. id

. at 309 (Cochran, J., concurring ) ( “ There is no such thing a s an intent to commit felony murder. ” ). We hav e also noted that the application para graph of the charge contained error by instructi ng the jury that it could convict White of felony murder if he , acting as a party, caused bodily injur y to another; acted wi t h intent to cause bodily injury; and that Rod riguez

Frias used or exh ibited a deadly weapon du ring White ’ s immediate flight from the offe nse. But

as discuss ed further in our review of the “ state of the evidence ” factor , White was not egregiously harmed b y th is e rror as to aggravated assault for felo ny murder under section 19.02(b)(3) because the re was sufficient evidence support ing Whi te ’ s conviction of murder under section 19. 02(b)(1)

. S e e McDow , 2019 Tex. App. LEXIS 5296, at *22 (concluding that becaus e evidence was sufficient to support defendant ’s murder convictions und er sections 19.02(b)(1) and 19.02(b)(2), any error in jury char ge as to felony

- murder allegations under section 19.02(b)(3) did not cause defendant egregious harm). Finally, we have not e d that contrary to White ’ s contention , the ch arge did not fail to incorporate the conspiracy theor y of party liability

— in addition to the “ intent to promote and assist ” theory

— in the application paragraph of the charge

. Because t he char ge referenced Whit e ’s conduct “either acting alone or as a party to the offense as described above ” and because
t he party

- liab ility para grap h in t urn, s pecified that “a defendant is guilty of an offense committed by another u nder the law set out here , ” the application parag r aph in this charge authorized White’s convict ion based on his own conduct and b ased on Rodriguez

- Frias ’s conduct for which White was cr imi nall y resp onsible u nder either theory of party liability

. See Greene , 240 S.W.3d18 at 15

. Thus, we conclude that the e ntirety of the charge weighs only slightly in favor of a findi ng of egregious harm

.

b. S tate of the e vidence
T he evidence at trial ag ain st White w as st rong and mostly un contested. Campos ’ s DNA was present in the bl ood on White ’ s clothing

. Wh ite ’ s own s tatements to detectives show that although Whit e initially sought to minimize his r o le in Campos ’ s death, he lat er acknowl edged that he wa s angry at Camp os ; j oined Rodriguez

- Frias in beating Campos ; helped Rodriguez

- Frias l ook for Campos and planned to ki l l him ; and intended to beat up Campos until dea d

. White ’ s half

- brot her, Rios , testified that he saw White kick Camp os in the head duri ng the fight outside the house

. The medical examiner determined that Campos’s blunt force injur ies were contributory fa c tors to his death. Further, the last time Whit e saw Campos, he kn ew that Campos was having difficulty breathing , was likely unconsciou s , and was su staining more blo ws from Rodriguez

- Frias , but White left him there in the ditch

. W hite t old S abrina that h e thought Campos had been killed , but he did not report his death to law enforcement , who were notified

o nly afte r a neighbor hood child dis covered th e body

. The evidence supports a finding that White was guilty of murder as a party because he intended Ca m pos’s death and his actions of physically beatin g Campos

— combined with Rodriguez

- Frias’s stabbings of Campos

— caused Campos’s death. See Tex. Penal Code § 19.02(b)(1). Because the evidence is sufficient to support a finding that White committed murder as defined in section 19.02(b)(1) of the Penal Code , charged in his indictment, and submitted to the jury, White was not egregiously harmed by error in the charge as to the alternative theories of murder. See Sanchez , 376 S.W.3d at 775; McDow , 2019 Tex. App

.19 LEXIS 5296, at *22. Accord ingly, w e conclude t hat the state of the evidence at trial weighs heavily against a fin ding of egregious har m resulting from error in the jury charge

. See Sanchez , 376 S.W.3d at 775 (n oting that presence of o verwhelming eviden c e of gu ilt plays determi native role in resolving charge

- error issue ) ; Fuentes

- Sanchez , 2014 Tex. App. LEXIS 4222, at *27 (same )

.

c. Closin g a rguments The State ’ s closing argument addressed the law of part ies and how it applied h ere. The St ate argued th at w h en someone help s his knife

- carrying fr iend to bea t up a man, lea v es him for dead, and r eturn s multiple t imes to confirm th e kill ing , it d oes n o t matter that only one person actually did the stabbing. The State emphas ized that White aided a nd assis ted and directed the beating of Campos ; that t he jury wou ld not have to guess whether murder wa s something that should have been anticipa ted , giv en W hite ’ s admissions ; and that “ it ’ s clear that they together committed murder. ” The defe nse did not object to the S tate ’ s explanation about the law of pa rties or how that law , as applied to the facts , s howed White was gui l ty of murder. The defense ’ s cl osing argument omitted any reference to the law of parties and repeatedly state d that Rod rig ue z - Frias stabbed Ca m pos. The defense avoided a law

- of

- parties discussion d eli berately an d at its peril. Thus, we con clude that this factor weighs agai nst a f indin g of egregious harm.

d. Other r elevant i nformation Whi te contends that questio ns fro m the j ury during deliberations sh o w that the alleg ed charge error confus ed the m
. In re ference to the party

- liability ins tructions, the jury ’ s first
note asked, “ Is a ‘ felon y ’ a type of ‘ offense ’ ? ” The jury’s second note asked, “Under20 ‘Application of Law to Facts’ is it appropriate to ap p ly ‘as a party’ to each letter under a number,
sepa rately?” The district court answere d both questio ns by referring the jury t o the charge . As to the first question, th e instructions in the charge tracked the Penal Code statutes on the law of parties

. S ee Tex. Penal Code § 7.02 . The charge also informe d the jury th at the underlying felon y was aggravated as sault and that White was accused of committing the offense of murder.
As t o the second question, the di strict cou rt referred the ju ry to the cha rge ag ain , where the jury could compare th e differen ce i n format bet ween t he application pa ragraph s that referenced “acting alone or as a party” only once in the preface , with the abstract paragr a p hs that inc luded “ acting alo n e or as a party ” in each subse cti o n (a)

. Give n the other relevant infor mati on in the record as a whole, we conclude t hat this factor weighs only slightly in favor of a findi ng of
egr egious harm or is neutral. After consider ing a ll the above fa ctors , we c onclude that White has not sho w n
t h at any jury

- charge er ror a ffect e d the very basis of the case, deprive d hi m of a valuable right, or vitally a ffect ed a defensive theory, see Arteaga , 521 S.W.3d at 338, and further, he has no t sho wn that any alleged charg e error caused him “ actual rather t h an theoretical harm, ” see Chambers , 580 S.W.3d at 15 4

. In the absence of showing that error in this charge cause d him egregious harm , we ov err ule White ’ s first four issues.

Corre ction of judgment In his fi fth and f inal issu e, White contends that the ju d gment of conviction sho uld be modified to refl ect that the statute fo r the of fense is section “19.02(b)” of th e Texas Penal Code, and not sect ion “19.02(b)(1)” because he was charged w ith all thre e forms of m urder21 under t he statut e and because the jury’ s v erdict does not reflect which o f the three was the bas is for his conviction. Whit e ’ s judgment of convictio n reflects t hat the “ S tatute for O ff ense ” is

“ 19.02(b ) (1) Penal Code. ” A s we have not ed, Whit e was ch arged with murder und er subsections 19.02(b)( 1) , (2 ), and (3) of the Penal Code , and the jury returned a gen e ral verdict of guilt for the murder offense. See Tex. Pen al Code § 19.02(b)(1)

- ( 3). We have authority to modify inc orrect judgment s when t he nece ssary in formation is a vailable to do so. See T e x. R. App. P. 43.2(b) (a

uthorizi ng court of appeals to modify trial court ’ s judgme nt and affirm it as modified) ; B i g l e y

v
. S t a t e , 8 6 5 S

. W

. 2 d 2 6 , 2 7

- 2 8 ( T e x . C r i m
. A p p
. 1 9 9 3 ) ( c o n c l u d i n g t h a t r u les of a ppellat e
p rocedure empower co urts of appeals to refo rm judgme nts )

. Accordingly , we sus tain Whit e ’ s fifth iss u e seeking modificati on o f h is December 11, 2017 judgment of conv iction to dele te subsec tion (1) in the “ Stat ute for Offense

. ”

CONCLUSION We modi fy Whit e ’ s judg m ent of convic tion to re flect that th e “ S tatute for
O ffense ” is “ 19. 0 2 (b ) Penal Code , ” and we a ffir m t h e judgment as modif ied

.

_______________________________ ___________ Jeff Ro s e, Chief Ju stice Before Chie f Ju stice Rose, Justices K e lly and Smith Modified and , as Mo dified, A ffirmed Filed: February 20, 2020
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