Affirmed and Opinion filed August 16, 2012.

In The

Fourteenth Court of Appeals

NOS. 14-10-00527-CR, 14-10-00528-CR

ANDRES MALDONADO NAVA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court 

Harris County, Texas

Trial Court Cause Nos. 1260355, 1233224

NOS. 14-10-00530-CR, 14-10-00531-CR

XIOMARA ROSALES MENDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court 

Harris County, Texas

Trial Court Cause No. 1233225, 1221664
2

OPINION

A jury convicted Andres Maldonado Nava and Xiomara Rosales Mendez

(collectively, “appellants”) of felony murder and organized criminal activity. Appellants

raise issues regarding sufficiency of the evidence, a missing portion of the record, and the 

jury charge.

1

 We affirm. 

I. BACKGROUND

In June 2009, certain divisions of the Houston Police Department (“HPD”)

conducted “reverse sting” operations to identify and arrest individuals who were 

purchasing and reselling stolen goods. An undercover police informant approached a 

man at a flea market and offered to sell him stolen televisions. The men exchanged 

phone numbers. The informant repeatedly called the man, soliciting him to buy the 

televisions, but the man declined. However, the man informed Mendez, who worked at 

the same flea market, about the offer. Mendez expressed interest and began 

communicating with the informant and undercover HPD sergeant Robert Calderon.

Initially, Sergeant Calderon and Mendez could not agree on a location to conduct 

the sale. HPD officers wanted to conduct the “reverse sting” operation in the parking lot 

of a Fiesta grocery store (“Fiesta parking lot”), whereas Mendez insisted Sergeant 

Calderon bring the televisions several miles away to her location. However, on June 23, 

2009, Mendez called Sergeant Calderon and stated she and her husband would come to 

the Fiesta parking lot later that day to view the televisions but would not bring money. 

Sergeant Calderon agreed. 

HPD officers then prepared to conduct the operation. The informant and 

undercover HPD officer Henry Canales sat in a parked Budget rental truck (the “Budget 

truck”) in the middle of the Fiesta parking lot. Officer Canales wore a wristwatch 

containing a hidden microphone which recorded and transmitted audio to other officers. 

 

1 We consolidate appellants’ appeals on our own motion. We also note that Nava filed separate 

briefs relative to each of his convictions, whereas Mendez filed a single brief relative to her convictions.
3

Thirty-four televisions and two laptops with a combined value of over $30,000 were 

stored inside the cargo area of the Budget truck.

2 Many other undercover officers 

operating unmarked vehicles were stationed near the Fiesta parking lot. Sergeant 

Calderon and Officer Ruben Lopez were the senior officers overseeing the operation and 

sat in a parked pick-up truck. They were positioned to survey the impending transaction 

and listened to audio transmitted via Officer Canales’s watch. 

Mendez did not arrive at the Fiesta parking lot at the agreed time but called 

Sergeant Calderon to assure him she was still coming. At approximately 9:15 p.m., a 

white van was driven into the parking lot and parked near the Budget truck. Although 

officers were expecting only two individuals, Mendez, Nava, Robert Carrillo, and a 

minor, whom we will refer to as “Jane Doe,” (collectively, “the conspirators”) exited the 

van. Nava owned the van. 

Officer Canales and the informant exited the Budget truck and began conversing 

with the conspirators. Notably, the parties spoke Spanish during the meeting. Sergeant

Calderon and Officer Lopez, who were listening to the transmitted audio of the meeting, 

understood Spanish. Expert witnesses were later utilized by the State and appellants to 

translate the audio recordings to English.

Officer Canales showed the conspirators the televisions and represented they were

stolen. As discussed in greater detail below, the parties began negotiating a sale price. 

The conspirators were adamant about testing the televisions before purchasing them, but 

Officer Canales insisted on payment before delivery. Eventually, the parties agreed on 

$6,500. After the conspirators paid this amount in cash to Officer Canales, the parties 

began discussing who would ride in the Budget truck and Nava’s van. Officer Canales 

separated himself from the conspirators and said “It’s a done deal” into his watch, 

possibly intending to request that other officers enter the scene and arrest the 

 

2 Commercial retailers loaned these items to HPD for purposes of undercover operations. 
4

conspirators. Apparently, “It’s a done deal” was not the correct arrest signal, and the 

surveying officers remained in their positions. 

The situation deteriorated quickly as Officer Canales ignored the conspirators’

requests for the Budget truck key. Carrillo entered the cab of the Budget truck in search 

of the key. He then approached Officer Canales from behind, drew a pistol, and 

demanded the key. Officer Canales ran to the passenger side of the Budget truck, and 

Carrillo followed. From their vantage points, surveying officers could not observe 

exactly what transpired. However, the evidence supports a finding that Carrillo shot 

Officer Canales in the back, and Officer Canales shot Carrillo in the chest. During police 

interrogation, Mendez stated she saw Carrillo fire the first shot.

After hearing gunshots, the surveying officers descended upon the Fiesta parking 

lot. Officers shot Carrillo again and detained him; Carrillo died at the scene. Nava, 

Mendez, and Doe fled in the van. While Nava drove, Mendez called 9-1-1 and reported 

they were being followed by persons who wanted to kill them. Eventually, officers 

stopped the van. Officers did not find any weapons in the van. Shortly thereafter, 

Officer Canales died as a result of his gunshot wound.

Nava and Mendez were indicted for felony murder and organized criminal 

activity. After twelve days of testimony and argument, the jury found Nava and Mendez 

guilty on both charges. The jury assessed Nava’s punishment at sixty years’ confinement 

for felony murder and seven years’ confinement for organized criminal activity. The jury 

assessed Mendez’s punishment at sixty years’ confinement for felony murder and twenty 

years’ confinement for organized criminal activity.

II. LEGAL SUFFICIENCY

In the third issue of his murder appeal, Nava contends the evidence is legally 

insufficient to support the jury’s finding that he is criminally responsible for felony 

murder. Mendez asserts the same third issue. In the third issue of his organized-
5

criminal-activity appeal, Nava contends the evidence is legally insufficient to support his 

conviction.

A. Standard of Review

When reviewing sufficiency of the evidence, we view all of the evidence in the 

light most favorable to the verdict and determine, based on that evidence and any 

reasonable inferences therefrom, whether any rational fact finder could have found the 

elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 

(Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We 

do not sit as thirteenth juror and may not substitute our judgment for that of the fact 

finder by re-evaluating weight and credibility of the evidence. Isassi v. State, 330 

S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the 

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

reasonable inferences from basic facts to ultimate facts. Id. This standard applies equally 

to both circumstantial and direct evidence. Id. Our duty as reviewing court is to ensure 

the evidence presented actually supports a conclusion that the defendant committed the 

crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 

Circumstantial evidence is as probative as direct evidence in establishing guilt of 

an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. 

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). An inference is a conclusion reached by 

considering other facts and deducing a logical consequence from them. Id. at 16. 

Speculation is mere theorizing or guessing about the possible meaning of facts and 

evidence presented. Id. A conclusion reached by speculation may not be completely 

unreasonable, but it is not sufficiently based on facts or evidence to support a finding 

beyond a reasonable doubt. Id. Each fact need not point directly and independently to 

the appellant’s guilt, as long as the cumulative effect of all incriminating facts is 

sufficient to support the conviction. Id. at 13.

Sufficiency of the evidence is measured by elements of the offense as defined in a 

hypothetically correct jury charge, which accurately explains the law, is authorized by the 
6

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily 

restrict the State’s theories of liability, and adequately describes the particular offense for 

which the defendant was tried. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997).

B. Sufficiency Review: Felony Murder

Relevant to the present case, a person commits felony murder if, in the course and 

in furtherance of the commission or attempted commission of felony theft, he commits or 

attempts to commit an act clearly dangerous to human life that causes the death of an 

individual. Tex. Penal Code Ann. §§ 19.02(b)(3) (West 2011). A person commits felony 

theft if he unlawfully appropriates property of a certain value with intent to deprive the 

owner of property. Id. § 31.03(a), (e) (West Supp. 2012). “Appropriate” means to 

acquire or otherwise exercise control over property other than real property. Id. § 

31.01(4) (West Supp. 2012). Appropriation of property is unlawful if the property is in 

the custody of any law enforcement agency and is explicitly represented by any law 

enforcement agency to the actor to be stolen and the actor appropriates the property 

believing it was stolen by another. Id. § 31.03(b)(3).

It is undisputed that Carrillo was the person who shot and killed Officer Canales. 

Hence, to support appellants’ conviction of felony murder, the evidence must prove

beyond a reasonable doubt that appellants were criminally responsible for Carrillo’s 

offense. Under the conspirator-responsibility theory of party responsibility, “If, in the 

attempt to carry out a conspiracy to commit one felony, another felony is committed by 

one of the conspirators, all conspirators are guilty of the felony actually committed, 

though having no intent to commit it, if the offense was committed in furtherance of the 

unlawful purpose and was one that should have been anticipated as a result of carrying 

out the conspiracy.” Tex. Penal Code Ann. § 7.02(b) (West 2011).

There is strong evidence supporting a finding that Nava, Mendez, and Carrillo 

engaged in a conspiracy to commit felony theft. Before the incident, Mendez spoke with 

Sergeant Calderon via telephone regarding the televisions; Sergeant Calderon informed 
7

Mendez several times that the televisions were stolen. Nava drove Mendez, Carrillo, and 

Doe to the Fiesta parking lot. Sergeant Calderon testified that when the conspirators 

arrived, Officer Canales showed them the televisions, which he explicitly represented as

being stolen. This testimony is substantiated by the undercover-recording transcript 

pertaining to the parties’ conversation immediately after Officer Canales opened the rear 

door of the Budget truck:

Mendez: Why don’t you all close that right there? [Laughs]

Carrillo: How many are there in all?

Officer Canales: Excuse me?

Carrillo: How many are there?

Mendez: There are thirty-four, right?

Nava: Let’s see, let me get up there.

Officer Canales: It’s that I steal them from, from the trucks when they’re on 

the trip.

(Laughter)

Carrillo: When they come in transit?

Informant: Yes.

Undeterred by Officer Canales’s representation, Nava, Mendez, and Carrillo proceeded to 

negotiate with Officer Canales regarding price and testing of the televisions. 

The more difficult sufficiency question is whether the evidence supports a finding 

that Carrillo’s shooting was committed in furtherance of the theft and should have been 

anticipated by appellants. Mendez argues that the shooting did not occur in furtherance 

of the theft because the theft was complete at the time of the shooting. We agree the jury 

could have reasonably found that the theft was complete after Officer Canales was paid,

and Carrillo entered the Budget truck in search of the key, thereby exercising control of 

the truck and televisions. See Tex. Penal Code Ann. § 31.03(4) (defining “appropriate” 

as acquiring or otherwise exercising control of property). Although the theft was legally 

complete, we conclude the jury also could have reasonably found that the shooting 
8

occurred during the commission and in furtherance of the theft as contemplated in the 

felony-murder statute. 

The undercover-recording transcript reflects that immediately before the shooting, 

Carrillo and Nava repeatedly demanded that Officer Canales give them the key, 

culminating in the following exchange:

Carrillo: Where is the key?

Officer Canales: Hold on.

Nava: Hold on. The Key. Hey!

Officer Canales: Hey, hey!

Carrillo: Do you have the key or not?!

Nava: The Money!

Carrillo: Do you have the key?!

Officer Canales: Oh, damn!

Nava: Shoot him!

Carrillo: Do you have the key?! Give me the Money or I’ll kill you, 

asshole!

(Gunshots)

Officer Canales: It’s a done deal. I’m shot.

Sergeant Calderon testified that Officer Canales said “Hey, hey!” because Carrillo 

displayed the gun. This evidence supports a finding that Carrillo intended to shoot 

Officer Canales unless he provided the key or returned the money. Carrillo then shot 

Officer Canales in the back as he retreated.

Mendez argues that courts generally hold an act was committed in furtherance of a 

felony when it was actually part of the underlying felony. See, e.g., Bigon v. State, 252 

S.W.3d 360, 366 (Tex. Crim. App. 2008) (holding intoxicated defendant’s act of driving 

vehicle into oncoming traffic, resulting in death of another, was committed in furtherance

of felony driving while intoxicated, despite fact that the act stopped defendant’s operation 

of vehicle); Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999) (holding felony 

murder was properly based on underlying offense of injury to a child even though death 
9

was direct result of the offense); Aguirre v. State, 732 S.W.2d 320, 325 (Tex. Crim. App. 

1987) (op. on rehearing) (holding felony murder could be based on underlying offense of 

criminal mischief even though death was direct result of the offense); Murphy v. State, 

665 S.W.2d 116, 119 (Tex. Crim. App. 1983) (holding felony murder was properly based 

on underlying offense of arson even though death was direct result of the offense); 

Minard v. State, 836 S.W.2d 287, 289–91 (Tex. App.—Dallas 1992, no pet.) (holding 

felony murder was properly based on underlying offense of robbery even though death 

was direct result of the offense). 

However, in Loredo v. State, this court determined a dangerous act was committed 

in furtherance of an underlying felony in a situation analogous to the present case. 130 

S.W.3d 275 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). The appellant and his 

fellow conspirators entered a restaurant after it was closed, intending to steal money from 

a safe. Id. at 277–78. After unsuccessfully trying to open the safe, the conspirators 

abandoned their goal of stealing money and ignited a fire in an attempt to “cover their 

tracks.” Id. at 278–80. Subsequently, two firefighters were asphyxiated and died while 

searching the restaurant. Id. at 278. It is well-settled that burglary is complete at the 

moment an individual unlawfully enters a building not open to the public with the intent 

to commit theft, regardless of whether the theft is ever completed. See Richardson v. 

State, 888 S.W.2d 822, 824 (Tex. Crim. App. 1994). Nevertheless, our court concluded 

the conspirators’ ignition of a fire in a building in order to destroy inculpatory evidence 

was a dangerous act performed during the course and in furtherance of the burglary, 

supporting appellant’s felony-murder conviction. Loredo, 130 S.W.3d at 279–80. In 

light of this precedent, evidence that the shooting occurred shortly after Officer Canales 

received the money and while the conspirators were attempting to obtain the Budget 

truck key supports a finding the shooting was committed during the course and in 

furtherance of the theft.

Appellants next contend the evidence is insufficient to support a finding the 

shooting “should have been anticipated as a result of carrying out the conspiracy” to 
10

commit theft. Tex. Penal Code Ann. § 7.02(b). Appellants argue (1) theft is not a crime 

usually associated with violence or shootings, (2) there was no evidence regarding a plan 

to rob Officer Canales at gunpoint, (3) neither Nava nor Mendez was aware Carrillo 

possessed or even owned a gun, (4) there is no evidence regarding how or when the gun 

was placed inside Nava’s van or how the gun was stored once in the van (i.e., in plain 

view or hidden), (5) the fact that the conspirators brought Doe, a fourteen-year girl, 

proves they did not anticipate violence, (6) there is no evidence that any items were 

thrown from Nava’s van as it was driven away from the Fiesta parking lot, and (7) police 

did not find weapons in the van. Appellants also cite several cases for the proposition 

evidence is sufficient to support a finding a non-shooting conspirator should have 

anticipated a shooting when evidence establishes he was actually aware the shooting 

conspirator possessed a gun during the commission of a felony. See, e.g., Longoria v. 

State, 154 S.W.3d 747, 757 n.7 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); 

Tippitt v. State, 41 S.W.3d 316, 324–26 (Tex. App.—Fort Worth 2001, no pet.), 

overruled on other grounds by Hooper, 214 S.W.3d 9.

We agree with appellants that theft is not a crime which inherently entails the 

threat of violence. However, we conclude there is legally sufficient evidence to support a 

finding that appellants should have anticipated a shooting would occur during the 

commission of the underlying theft.

When Mendez and Sergeant Calderon discussed where they would meet to 

conduct the sale of the televisions, Mendez repeatedly insisted Sergeant Calderon bring 

the televisions to her specified location. In fact, Mendez told Sergeant Calderon that she 

did not want to meet at his location because “she was not familiar with the area . . . and

she didn’t want to come out there because she didn’t know anyone or anything out there.” 

There is intrinsically a certain tension and level of distrust when someone travels to a 

strange location and meets with an unknown person regarding the purchase of stolen 

property; “There is no honor among thieves.” The conspirators obviously were 

suspicious of Officer Canales because they wanted to test the televisions to ensure they 
11

worked. It is not unforeseeable that this distrust and tension could lead to violence, 

especially considering of the high monetary value of the thirty-four televisions. The 

conspirators ultimately agreed to travel to the Fiesta parking lot, meaning they accepted 

the risks inherent with conducting unlawful business with unfamiliar thieves in an 

unfamiliar location.

In addition to the potentially volatile nature of this criminal transaction, the 

circumstantial evidence supports a finding that Nava and Mendez knew a gun was 

brought to the Fiesta parking lot. Shortly after the conspirators arrived, Officer Canales 

showed them the televisions in the Budget truck, and all of the parties stepped into the 

cargo-area of the truck. Initially, Officer Canales and Carrillo discussed the price for the 

televisions. However, Mendez interrupted and told Carrillo she was going to handle 

negotiations. After Mendez and Carrillo argued regarding who would speak with Officer 

Canales, Carrillo exited the truck, and Mendez began negotiating with Officer Canales. 

Carrillo proceeded to Nava’s van, reached inside the passenger side of the van, and 

removed something wrapped in a “white towel.” Carrillo then leaned into the Budget 

truck and placed the object inside. Sergeant Calderon testified that Nava, Mendez, and 

Doe were in the cargo-area of the Budget truck and unable to see Carrillo when he 

retrieved the towel-wrapped object. Nevertheless, during police questioning, Nava 

stated, “When [Carrillo] got out of my van, he did get out with something, . . . a rag . . . 

but[] he never told me he had a weapon.” Similarly, Mendez told police she saw Carrillo

proceed to the Budget truck with a “white bulk” she “imagine[d]” was a pistol.

While Carrillo retrieved the object from Nava’s van, Mendez was busy talking to 

Officer Canales inside the Budget truck. Sergeant Calderon opined that it appeared 

Mendez was purposefully diverting Officer Canales’s attention so that he would not see 

what Carrillo was doing. This opinion is supported by the next, bizarre event. Mendez 

succeeded in convincing Officer Canales to lower his price from $6,500 to $6,000. She 

also disparaged Carrillo to Officer Canales, saying she should not have brought Carrillo. 

However, Nava then told Mendez that Carrillo “says . . . give [Officer Canales] the six 
12

thousand five hundred for the whole package.” Unbelievably, notwithstanding that she 

had negotiated a lower price, Mendez acceded to Carrillo’s order. Additionally, despite 

Nava’s and Mendez’s protestations, Carrillo decided they would pay Officer Canales 

before testing the televisions. 

We conclude the foregoing evidence supports a finding that appellants were aware 

Carrillo was removing an object from Nava’s van and placing it in the Budget truck. The 

jury could reasonably infer that Carrillo was not acting rogue because he performed the 

act when any of his co-conspirators could have exited the Budget truck and observed 

him. The fact that one party to an offense performs an act without concern that other 

parties might observe the act may support an inference the parties had previously 

discussed performance of the act. See Nzewi v. State, 359 S.W. 829, 837 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d) (concluding party’s instructing woman to testify 

falsely while other party was in and out of earshot supported finding parties had 

previously discussed witness-tampering scheme). Additionally, statements by Nava and 

Mendez that they saw Carrillo at the scene with a white towel-wrapped object—even 

though Sergeant Calderon testified Nava and Mendez were unable to see Carrillo retrieve 

the object—supports a finding that they knew Carrillo would be retrieving the object. 

Moreover, the fact Mendez assumed control of the negotiations, negotiated a lower price, 

and criticized Carrillo to Officer Canales, but immediately acquiesced to Carrillo’s order 

to pay the original higher price supports a finding the conspirators planned more than a 

straightforward negotiation for stolen televisions and a finding that Carrillo retrieved the 

towel-wrapped object as part of the plan. 

The parties then discussed travel arrangements for transporting the televisions to 

Nava’s house for testing. When Officer Canales stated he intended to travel with them to 

test the televisions, Nava responded, “How about you get out there at the light?” The 

conspirators culled their cash and paid Officer Canales $6,500. Carrillo decided he and 

Mendez would drive in the Budget truck, and Nava, Doe, and Officer Canales would 
13

drive in Nava’s van.

3

 Officer Canales then said “It’s a done deal” and nonchalantly 

attempted to distance himself from the conspirators. The conspirators repeatedly asked 

Officer Canales for his key, but he stalled. Even Doe directed Officer Canales to produce 

the key and enter Nava’s van. Officer Canales again said, “It’s a done deal.” Carrillo 

asked Officer Canales if he “put the keys in there,” apparently referring to the Budget 

truck. Carrillo returned to the Budget truck and entered the cab (unlike earlier when he 

had merely placed the towel-wrapped object into the cab), then exited and approached 

Officer Canales from behind. Carrillo followed Officer Canales around the rear of the

Budget truck, drew a gun, and asked, “Do you have the key or not?!” Nava yelled “The 

Money!” and “Shoot him!”

4

 Carrillo then said, “Do you have the keys?! Give me the 

Money or I’ll kill you, asshole!” and shot Officer Canales in his back. Nava, Mendez, 

and Doe returned to Nava’s van and fled the scene.

The foregoing evidence supports several important findings. First, the evidence 

supports a finding that the towel-wrapped object Carrillo placed in the Budget truck was 

a gun. While the conspirators were asking Officer Canales to provide the key, Carrillo 

entered the cab of the Budget truck. The jury could have reasonably found that Carrillo 

was looking for the truck key and retrieving the object he placed earlier. White shorts 

were found in the console of the Budget truck following the incident. DNA recovered 

from the shorts did not match the DNA of Officer Canales, Nava, Mendez, Carrillo, or

Doe. However, during police questioning, Nava stated that he keeps clothing in his van, 

including shorts. The white shorts were consistent with Carrillo placing a white towelwrapped object in the Budget truck. Carrillo’s cell phone was also found in the Budget 

truck after the shooting. However, it is reasonable to believe Carrillo used the shorts to 

conceal an item he did not want noticed, as opposed to a phone. Hence, the jury could 

 

3 At this point, the informant had left the scene, apparently without raising any suspicion.

4 The State’s translation expert testified that he listened to the undercover recording repeatedly 

and with certain audio enhancements. The expert testified Nava yelled the Spanish word “tirale” 

immediately before Carrillo shot Officer Canales. According to the expert, “tirale” as used in this context 

meant “shoot him.” Although there was conflicting evidence regarding the meaning of “tirale” and 

whether it was even said, the jury was entitled to believe the State’s expert.
14

have reasonably concluded Carrillo furtively placed his gun in the Budget truck and then 

retrieved it before the shooting.

We have already concluded the evidence supports a finding that Nava and Mendez 

were aware Carrillo placed an object in the cab of the Budget truck. It is also reasonable 

to infer Nava and Mendez knew the object was a gun. This inference is further supported 

by the fact the conspirators believed they needed a gun because they were bringing a 

massive amount of cash to meet unknown thieves at an unknown location. Finally, the 

fact that Nava encouraged Carrillo to shoot Officer Canales supports a finding that he 

knew Carrillo possessed a gun. Accordingly, viewed collectively, the evidence supports 

the jury’s finding that Nava and Mendez should have anticipated the shooting. We 

overrule the third issues in Nava’s murder appeal and Mendez’s appeal

C. Sufficiency Review: Organized Criminal Activity

We next consider Nava’s contention that the evidence is legally insufficient to 

support his conviction of organized criminal activity. 

Relevant to the instant case, a person commits “engaging in organized criminal 

activity” if, with the intent to establish, maintain, or participate in a combination or in the 

profits of a combination, he commits theft. Tex. Penal Code Ann. § 71.02(a)(1) (West 

Supp. 2012). “Profits” means property constituting or derived from any proceeds 

obtained, directly or indirectly, from the theft. Id. § 71.01(c) (West 2011). 

“Combination” means three or more persons who collaborate in carrying on criminal 

activities. Id. § 71.01(a). Here, the State alleged Mendez, Nava, and Carrillo comprised 

the combination.

As discussed above, the evidence is sufficient to support the jury’s finding that 

Nava was criminally responsible for the theft. Thus, we overrule Nava’s challenge to 

sufficiency of evidence supporting the theft underlying his organized-criminal-activity 

conviction.
15

Nava also contends the evidence is insufficient to support the jury’s finding that he 

participated in a combination by collaborating with Mendez and Carrillo in carrying on 

criminal activities. The phrase “collaborate in carrying on criminal activities” has been 

defined as intent “to work together in a continuing course of criminal activities.” Nguyen 

v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999).5

There was substantial evidence that Nava, Mendez, and Carrillo knew each other 

and frequently spoke on the telephone. It was also established that Mendez sold stolen 

goods at the flea market. A person who worked at Mendez’s flea market testified that 

Nava regularly brought tools to sell at Mendez’s booth. Mendez’s boyfriend told police 

he was jealous of the amount of time Mendez was spending with Nava and Carrillo. 

However, despite this testimony, Nava’s wife testified Nava was not involved in business 

with Mendez at the time of the murder. The fact that Nava did not inform his wife 

regarding his dealings with Mendez supports an inference there was a reason Nava 

wanted the dealings to remain secret.

Mendez told Sergeant Calderon on the telephone that she was interested in 

continuing to buy stolen goods from him in the future. While negotiating with Officer 

Canales in the Fiesta parking lot, Mendez stated, “[W]e’ll try [the televisions] out over 

there at [Nava’s] house. There’s no problem. We’re decent people. . . Hard workers like 

you, business people.” Mendez and Officer Canales later engaged in the following 

dialogue:

Mendez: [C]an’t you let them go for six thousand even? Well we’re going 

to keep buying from you. Because if we move this fast, we’ll get from you 

soon again. You say you get every fifteen days. You know I also buy 

tools.

Officer Canales: Yes, it’s that, it’s that, like I tell you, I, I steal them[.] I 

have a partner and we steal them from the trucks when they are in transit.

Mendez: M-hm.

 

5 We discuss this definition in depth below in the subsection entitled “B. ‘Collaborate in Carrying 

On.’”
16

Officer Canales: So, we never know what we’re going to[—]what’s going 

to come out.

Mendez: No well, of course not. No, that’s why I tell you we have 

businesses and the three of us are business people. 

Mendez’s representations are strong circumstantial evidence that she, Nava, and 

Carrillo intended to collaborate in buying and selling stolen items. Considering the

aforementioned facts as a whole, we conclude the evidence is sufficient to support a 

finding that Nava, Mendez, and Carrillo intended to establish a combination.

6

 

Accordingly, we overrule the second issue in Nava’s organized-criminal-activity appeal. 

III. MISSING RECORD

In the first issue of both his felony-murder and organized-criminal-activity 

appeals, Nava contends he is entitled to a new trial because a portion of the record

necessary to resolution of his appeals is missing. In her first issue, Mendez presents the 

same argument.

At some point during the appellate process, it was discovered that the record of 

counsel conferring with the trial court, questioning veniremen at the bench, and making

challenges for cause during voir dire was missing. The remainder of the voir dire record 

has been preserved. Texas Rule of Appellate Procedure 34.6(f) provides,

(f) Reporter’s Record Lost or Destroyed. An appellant is entitled to a new 

trial under the following circumstances:

(1) if the appellant has timely requested a reporter’s record;

(2) if, without the appellant’s fault, a significant exhibit or a significant 

portion of the court reporter’s notes and records has been lost or destroyed 

or—if the proceedings were electronically recorded—a significant portion 

of the recording has been lost or destroyed or is inaudible;

 

6 The Court of Criminal Appeals has determined that, for purposes of organized criminal activity, 

the defendant need not participate in a combination which has already engaged in criminal activities; it is 

sufficient if the defendant intends to establish a combination which will engage in future criminal 

activities. Nguyen, 1 S.W.3d at 697. Accordingly, having determined the evidence is sufficient to 

support a finding that Nava intended the combination to continue criminal activities after the underlying 

theft, we will not discuss extensive evidence the State presented regarding a prior theft of power tools 

committed by at least Mendez and Carrillo.
17

(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the 

lost or destroyed exhibit, is necessary to the appeal’s resolution; and

(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot 

be replaced by agreement of the parties, or the lost or destroyed exhibit 

cannot be replaced either by agreement of the parties or with a copy 

determined by the trial court to accurately duplicate with reasonable 

certainty the original exhibit.

Tex. R. App. P. 34.6(f).

We abated the appeal for the trial court to conduct a hearing and make findings of 

fact relative to Rule 34.6(f). The trial court conducted three hearings from March 16, 

2011 to June 3, 2011. During these hearings, the prosecutors, Nava’s trial counsel, Rudy 

Duarte and Casey Keirnan, and Mendez’s trial counsel, Diana Olvera and Bob Loper, 

testified regarding their recollection of voir dire. It is undisputed the missing portion of 

the record is irretrievable. Duarte and Loper testified that venireman No. 30 was 

disqualified because he would not consider the full range of punishment. However, the 

trial court denied appellants’ challenge for cause regarding venireman No. 30, and 

appellants used a peremptory strike on him. Keirnan testified that he seemed to 

remember Loper requesting an additional peremptory strike. Loper could not remember 

if he requested an additional peremptory strike or if he identified an objectionable 

venireman who sat on the jury; however, he testified that both appellants used all of their 

peremptory strikes. Loper also testified that appellants challenged other veniremen for 

cause, which the trial court apparently denied. One of the trial prosecutors testified that 

he specifically remembers thinking after the jury was selected that there were no 

appealable issues regarding voir dire, meaning either any objectionable venireman had 

been rehabilitated or error had not been preserved. The prosecutors also testified that 

veniremen were called to the bench for individual questioning during the challenge-forcause portion of voir dire. 
18

The trial court testified7that it remembered (1) denying appellants’ challenge for 

cause to venireman No. 30 because the venireman had been asked an improper 

commitment question, namely, whether he could consider probation in a theft case in 

which someone was killed in the course of the theft,8(2) Keirnan requested two 

additional peremptory strikes, and (3) appellants did not identify an objectionable 

venireman who sat on the jury.9 The trial court also expressed, “So whether I 

rehabilitated anybody I don’t specifically remember but I typically do[.] So if the 

challenges for cause that are on the record, that the statements by the jurors are on the 

record are adequate to disqualify them without any further record then that record is very 

significant and it’s necessary too.”10

 After the hearings, the trial court made the following findings of fact and 

conclusions of law:

(1) Appellants made a timely request for a reporter’s record.

(2) The record of the bench conference following voir dire is missing 

because of electronic equipment failure. The record is missing through no 

fault of appellants.

(3) That missing record is significant in that it memorialized (a) questions

by the Court of veniremen who were challenged for cause and their 

answers, (b) the Court’s rulings on motions for cause, and (c) the failure of 

appellants to preserve error with respect to rulings on motions for cause.

 

7 The trial court provided its recollection of the pertinent events after the State requested the court 

do so either as testimony or in a bill of exceptions. Appellate counsel for Mendez objected to the trial 

court testifying. The trial court did not rule on the objection and proceeded to recall events that occurred 

during voir dire. We consider these recollections as testimony because, as discussed below, the trial court 

relied on its recollections when making its factual findings.

8 We do not consider whether this was an improper voir dire question.

9 To preserve error regarding the trial court’s denial of a challenge for cause, the defendant must 

(1) assert a specific challenge for cause, (2) use a peremptory strike on the challenged venireman, (3) 

exhaust his peremptory strikes, (4) request additional strikes, and (5) after the trial court denies the 

request for additional strikes, identify an objectionable venireman who sat on the jury. Davis v. State, 329 

S.W.3d 798, 807 (Tex. Crim. App. 2010).

10 Appellants also emphasize the fact the trial court lamented during one of the abatement 

hearings, “[Q]uite frankly I think we’re going to have to re-try this case because of [the missing record].”

However, it is our role to determine whether appellants are entitled to a new trial under Rule 34.6(f). 
19

(4) The record is not necessary to the appeal since it memorialized no 

preserved error.

(5) The missing portion of the record cannot be replaced by agreement of 

the parties.

Appellants first argue the lost portion of the record is necessary to resolution of 

their appeals because they are unable to determine whether the trial court erroneously 

denied a challenge for cause. However, during one of the abatement hearings, the trial 

court testified that appellants never identified an objectionable venireman who sat on the 

jury. The trial court obviously relied on this testimony when making its findings of fact 

because the court found the missing portion of the record memorialized “the failure of 

appellants to preserve error with respect to rulings on motions for cause.” Neither 

appellant complains on appeal that the trial court erred by relying on its own testimony. 

Accordingly, the missing portion of the record is not necessary to resolution of this issue 

because it has not been preserved for appeal. 

Appellants also argue that the lost portion of the record is necessary to the 

resolution of their appeals because they are unable to determine whether counsel was 

ineffective during jury selection. In 2001, the Court of Criminal Appeals seemed to lean 

toward a rule that missing records will readily be determined to be necessary for 

resolution of an ineffective-assistance-of-counsel claim. In Kirtley v. State, appellant

initially pled guilty to murder, and the trial court deferred adjudication of guilt for ten 

years. 56 S.W.3d 48, 49 (Tex. Crim. App. 2001). Subsequently, the State moved to 

adjudicate guilt, and the trial court found appellant violated terms of his probation and 

sentenced him to thirty years’ confinement. Id. at 49–50. However, the entire reporter’s 

record of the adjudication-of-guilt proceeding was destroyed through no fault of 

appellant. Id. at 50. On appeal, appellant argued that he was entitled to a new 

punishment hearing because he was precluded from asserting an ineffective-assistanceof-counsel claim. Id. In an unpublished opinion, the court of appeals described 

appellant’s argument as, “[T]he lack of a reporter’s record precludes him from asserting 

that he received ineffective assistance of counsel at the adjudication/punishment hearing, 
20

and the punishment assessed, thirty years[’] confinement, exceeded the plea bargain 

agreement.” Kirtley v. State, No. 05-99-00236-CR, 2000 WL 688602, at *2 (Tex. 

App.—Dallas May 19, 2000) (mem. op., not designated for publication), rev’d, 56 

S.W.3d 48 (Tex. Crim. App. 2001). The court of appeals held that the missing record 

was not necessary to resolution of the appeal because the Code of Criminal Procedure did 

not authorize appellant to appeal from the adjudication-of-guilt proceeding. Kirtley, 56 

S.W.3d at 50. 

The Court of Criminal Appeals disagreed, recognizing appellant may appeal errors 

occurring during the punishment phase of an adjudication-of-guilt proceeding. Id. at 51–

52. The court then summarily held, “Because appellant can make [an ineffectiveassistance-of-counsel claim], the record is ‘necessary to the appeal’s resolution’ as 

required by Rule 34.6(f)(3).” Id. at 52. Interestingly, the court arrived at this conclusion 

without even mentioning the basis for appellant’s argument that the record may show 

ineffective assistance of counsel.

11

 Legal commentators have recognized the court’s 

truncated analysis:

The [Kirtley] court engaged in no speculation as to whether the [ineffectiveassistance-of-counsel claim] had sufficient actual or potential merit or 

whether there was any likelihood that the matter could be resolved without 

detailed scrutiny of the reporter’s record. Perhaps, then, there are certain 

issues that by their nature and without further analysis make a reporter’s 

record necessary to their resolution. If so, Kirtley seems to hold that a 

claim of ineffective representation at the proceeding is one of those.

43B George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice & 

Procedure § 55:99 (3d ed. 2011).

However, a year later, the Court of Criminal Appeals held that speculation a 

missing record may memorialize error does not satisfy the necessity requirement of Rule 

 

11 The Court of Criminal Appeals remanded the case for the trial court to determine whether the 

parties could agree on a complete reporter’s record. Kirtley, 56 S.W.3d at 52. Ultimately, the trial court 

found the parties could not agree on a record, and the court of appeals reversed and remanded for a new 

punishment hearing. Kirtley v. State, No. 05-99-00236-CR, 2002 WL 413806, at *1 (Tex. App.—Dallas 

Mar. 18, 2002, no pet.) (mem. op., not designated for publication).
21

34.6(f). In Routier v. State, fifty-four pages from one volume of the reporter’s record 

could not be certified and were thus unusable for appellate review. 112 S.W.3d 554, 570 

(Tex. Crim. App. 2003). Appellant argued she was entitled to a new trial pursuant to 

Rule 34.6(f). Id. The Court of Criminal Appeals explained that Rule 34.6(f) issues 

“should be viewed from the appellant’s standpoint, and any reasonable doubt resolved in 

favor of the appellant.” Id. at 570–71. The court also recognized, “The provision in the 

rule that the appellant show that the missing portion of the record is necessary to her 

appeal is itself a harm analysis.” Id. at 571. 

Appellant claimed the unusable portion of the record was necessary to resolution 

of the appeal because, inter alia, it memorialized preliminary instructions provided to the 

morning-session venire which may have been erroneous. Id. The court held, “The 

suggestion that instructions may have been erroneous, without more, does not make that 

portion of the record necessary to her appeal.” Id. The court also concluded the unusable 

portion of the record was not necessary because a recording of the afternoon-session 

venire demonstrated that the instructions provided during that session were “very similar” 

to the court reporter’s notes regarding instructions provided during the morning session. 

Id. 

Routier appears to be a reverse course from Kirtley, in which a naked assertion 

that the missing record may establish ineffective assistance of counsel was held sufficient 

to satisfy the necessity requirement of Rule 34.6(f). Thus, the rule requires an appellant 

to do more than merely suggest the missing portion of the record reveals reversible error 

in order for review of that portion to be necessary. See Issac v. State, 989 S.W.2d 754, 

757 (Tex. Crim. App. 1999) (“Although the lack of a record may in some cases deprive 

an appellate court of the ability to determine whether the absent portions are necessary to 

the appeal’s resolution, an automatic rule of reversal is not justified.”).

Appellants argue the missing portion of the record may reveal that trial counsel, 

without a reasonable strategy, failed to identify to the trial court an objectionable

venireman who said something which rendered him challengeable for cause when 
22

individually questioned at the bench and ultimately sat on the jury. Although conjecture 

may have been sufficient in Kirtley, it is not sufficient under Routier. It is not necessary 

for us to view the missing portion of the record to resolve a claim that the portion may or 

may not reveal trial counsel’s ineffectiveness, particularly when appellants do not argue 

trial counsel were ineffective in conducting voir dire or in any other aspect of their 

representation. See Jimenez v. State, 307 S.W.3d 325, 334 (Tex. App.—San Antonio 

2009, pet. ref’d) (relying on Routier and holding appellant’s mere suggestion that 

transcript of Spanish recording may have supported additional appellate issue did not 

prove necessity under Rule 34.6(f)). We also note that it is unlikely the missing portion 

of the record would establish appellants’ trial counsel had no viable strategic reason for 

failing to preserve jury-selection error if they in fact did fail to preserve error. See 

Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (noting appellate 

courts are to presume counsel provided effective assistance and, in “the majority of cases, 

‘the record on direct appeal is undeveloped and cannot adequately reflect the motives 

behind trial counsel’s actions.’”). Accordingly, we hold appellants have not met their 

burden of proving that the missing portion of the record is necessary to resolution of their 

appeals. We overrule appellants’ first issue.12

IV. JURY CHARGE

A. Applicability of Section 7.02(a)(2) to Felony Murder 

In the second issue of his felony-murder appeal, Nava contends the trial court 

erred by including in the application portion of the felony-murder jury charge an 

instruction regarding accomplice responsibility under section 7.02(a)(2) of the Penal 

Code. Mendez raises the same second issue in her appeal. 

 

12 Our conclusion that appellants are not entitled to relief under Rule 34.6(f) does not preclude 

them from complaining about the missing portion of the record in future proceedings.
23

1. Error Analysis

We must first determine whether there was error in the jury charge. Barrios v. 

State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). In the application portion of the 

jury charge, the trial court submitted an instruction whereby the jury was authorized to 

convict appellants of felony murder as parties to the offense, either as accomplices under 

section 7.02(a)(2) or conspirators under section 7.02(b). We explained section 7.02(b) 

conspirator responsibility in the legal-sufficiency section of this opinion, supra. Under

section 7.02(a)(2), an accomplice is criminally responsible for conduct of another person

if, “acting with intent to promote or assist the commission of the offense, he solicits, 

encourages, directs, aids, or attempts to aid the other person to commit the offense.” Tex. 

Penal Code Ann. § 7.02(a)(2) (emphasis added). 

Appellants argue section 7.02(a)(2) does not apply in the context of felony murder 

because an accomplice cannot act “with intent to promote or assist the commission of” 

felony murder, an unintentional offense. See Threadgill v. State, 146 S.W.3d 654, 665 

(Tex. Crim. App. 2004) (“Felony murder is an unintentional murder committed in the 

course of committing a felony.”). Indeed, the felony-murder statute does not require a 

culpable mental state, even relative to the “commits an act clearly dangerous to human 

life” element of the offense. See Tex. Penal Code Ann. § 19.02(b)(3); Lomax v. State, 

233 S.W.3d 302, 305 & n.7, 307 & n.16 (Tex. Crim. App. 2007); Driver v. State, 358 

S.W.3d 270, 278–79 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

However, the Court of Criminal Appeals has held that a defendant charged as a 

party to capital murder is not entitled to submission of felony murder as a lesser-included 

offense unless the evidence shows,

(1) for purposes of party liability under Section 7.02(a)(2), [defendant] 

himself did not intend death of [victim] or another;

(2) for purposes of conspiracy liability under Section 7.02(b), [principal 

actor’s] act of shooting [victim] was not committed in furtherance of a 

conspiracy; or 
24

(3) for purposes of conspiracy liability under Section 7.02(b), [defendant] 

should not have anticipated that [principal actor] would shoot [victim].

Ex parte Thompson, 179 S.W.3d 549, 558–59 (Tex. Crim. App. 2005) (emphasis added); 

see also Salinas v. State, 163 S.W.3d 734, 741–42 (Tex. Crim. App. 2005) (explaining 

capital-murder defendant entitled to instruction on lesser-included offense of felony 

murder only if evidence supported finding defendant, either as principal or party, did not 

have intent to kill); Santana v. State, 714 S.W.2d 1, 9 (Tex. Crim. App. 2005) (same). 

Thus, the Court of Criminal Appeals has clearly held that accomplice responsibility under 

section 7.02(a)(2) may be applicable, in at least some circumstances, to felony murder. 

Appellants’ position was asserted by the concurring judge in Ex parte Thompson, 

who opined that convicting an accomplice of felony murder seemed at variance with 

section 7.02(a)(2), which requires the accomplice act with intent to promote or assist the 

commission of the offense for which he is being held criminally responsible:

But it is questionable whether an accomplice’s lesser culpable mental state 

under § 7.02(a)(2) could ever raise felony murder as a lesser-included

offense. Felony murder attaches no culpable mental state to the killing 

itself, but § 7.02(a)(2) requires that the defendant have the “intent to 

promote or assist” the commission of the offense. If applicant lacked the 

intent to kill, and merely intended to commit the underlying felony, then it 

would seem that the only felony applicant intended to promote or assist 

would be the underlying felony. A prior decision applying § 7.02(a)(2) to 

manslaughter may suggest a more expansive reading of the statute

[referring to Mendez v. State, 575 S.W.2d 36 (Tex. Crim. App. 1979)], but 

it remains to be seen whether the reading would be expansive enough to 

infer an “intent to promote or assist” for a result-of-conduct offense, where 

a culpable mental state for the result is completely absent.

Id. at 564–65 (Keller, P.J., concurring).

In Mendez, the Court of Criminal Appeals considered whether section 7.02(a)(2) 

accomplice responsibility applies to involuntary manslaughter, which does not require an 

intent to kill. 575 S.W.2d at 37. The defendant and two friends drove through a 

neighborhood as one of the friends randomly shot at houses; one of the shots struck and 

killed a sleeping man. Id. Appellant argued he could not be held criminally responsible 
25

as an accomplice to involuntary manslaughter because of the incongruity of a finding that 

he intentionally assisted the shooter in committing an unintentional crime. Id. at 37. 

The court rejected this argument, concisely holding, “It is entirely possible to 

intentionally solicit or assist an individual in committing a reckless act. We hold that the 

law of parties does apply to the substantive offense of involuntary manslaughter.” Id. at 

38.

It is logical that the defendant in Mendez was held responsible for his friend’s 

involuntary manslaughter because the defendant intentionally assisted his friend in 

committing involuntary manslaughter by recklessly killing someone—an offense that 

necessarily included commission of an act clearly dangerous to human life. This same 

logic applies in the felony-murder context when the accomplice intentionally assists 

another in committing a felony that necessarily includes commission of an act clearly 

dangerous to human life. See, e.g., Miles v. State, 259 S.W.3d 240, 244, 255–56 (Tex. 

App.—Texarkana 2008, pet. ref’d) (concluding evidence sufficient to support finding 

defendant criminally responsible as accomplice to felony murder because he, with intent 

to assist in the commission of deadly conduct, aided another in committing deadly

conduct that resulted in a fatality); Miller v. State, 83 S.W.3d 308, 313–18 (Tex. App.—

Austin 2002, pet. ref’d) (same).

However, should the same logic apply when the underlying felony does not

necessarily include commission of an act clearly dangerous to human life? The Court of 

Criminal Appeals appears to have answered affirmatively in Ex parte Thompson, in 

which the act clearly dangerous to human life that caused another’s death (firing at 

convenience store clerk while attempting to flee) was not an element of the underlying 

offense (robbing the convenience store clerk). 179 S.W.3d at 551. Moreover, in Loredo, 

this court held the evidence was sufficient to support the defendant’s conviction of felony 

murder as an accomplice to the offense because he intentionally assisted another person 

in committing a nonviolent felony (burglary of an empty restaurant) and a separate act 

clearly dangerous to human life that caused the death of an individual (igniting a fire to 
26

destroy evidence). 130 S.W.3d at 279–80. Although the Loredo court did not discuss the 

proper jury charge regarding accomplice responsibility in the context of felony murder, 

we find it instructive that the evidence was held sufficient to support the defendant’s 

conviction because he intended to assist his accomplices in committing both the 

underlying felony and the dangerous act which caused another’s death. 

Accordingly, we hold that an accomplice may be held criminally responsible for 

another’s felony murder pursuant to section 7.02(a)(2) when the accomplice intentionally

solicits, encourages, directs, aids, or attempts to aid his cohorts in committing both the 

underlying felony and an act clearly dangerous to human life which caused a death (and

was committed in the course and in furtherance of the commission or attempted 

commission of the underlying felony, or in immediate flight therefrom).13 Importantly, 

the accomplice need not intend that the act be clearly dangerous to human life; as 

explained above, there is no required culpable mental state for the “commits an act 

clearly dangerous to human life” element of felony murder. See Lomax, 233 S.W.3d at 

305 & n.7, 307 & n.16; Driver, 358 S.W.3d at 278–79. All that is required is for the 

accomplice to intentionally assist another in committing an act which happens to have 

been objectively dangerous to human life and caused another’s death. See Lomax, 233 

S.W.3d at 307 & n.16 (citing Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim. App. 

1983)).

In the instant case, the trial court instructed the jury to convict appellants of felony 

murder based on accomplice responsibility if the following facts were proved beyond a 

reasonable doubt:

[Mendez] and/or [Carrillo], did then and there unlawfully, intentionally or 

knowingly commit or attempt to commit felony theft, and while in the 

 

13 We recognize that the Court of Criminal Appeals did not espouse such a rule in Ex parte 

Thompson. However, it was unnecessary for the court to weigh upon this issue because the court was

focused on the defendant’s right to the lesser-included offense of felony murder. Ex parte Thompson, 179 

S.W.3d at 558–59. Moreover, our rule is further supported by application of section 7.02(a)(2) in the 

capital-murder context, which requires an accomplice intend to assist both the underlying felony and

intentional killing. See Tippitt, 41 S.W.3d at 324.
27

course of and furtherance of the commission or attempted commission of 

felony theft, [Carrillo] did commit an act clearly dangerous to human life, to 

wit: shooting [Officer] Canales with a deadly weapon, namely, a firearm 

and did thereby cause the death of [Officer] Canales, and that the 

defendant, [Nava], with the intent to promote or assist the commission of 

the offense, if any, solicited, encouraged, directed, aided or attempted to aid 

[Mendez] and/or [Carrillo] to commit the offense. [Nava’s jury charge]

[Nava] and/or [Carrillo], did then and there unlawfully, intentionally or 

knowingly commit or attempt to commit felony theft, and while in the 

course of and furtherance of the commission or attempted commission of 

felony theft, [Carrillo] did commit an act clearly dangerous to human life, to 

wit: shooting [Officer] Canales with a deadly weapon, namely, a firearm 

and did thereby cause the death of [Officer] Canales, and that the 

defendant, [Mendez], with the intent to promote or assist the commission of 

the offense, if any, solicited, encouraged, directed, aided or attempted to aid 

[Nava] and/or [Carrillo] to commit the offense. [Mendez’s jury charge]

(emphasis added).

Appellants contend these charges authorized the jury to convict them of felony 

murder if the jury merely found (1) appellants intentionally aided the commission of the 

theft, and (2) Carrillo shot and killed Officer Canales during the course of and in 

furtherance of the theft. Stated differently, appellants argue the jury was not required to 

find appellants intended to assist in an act clearly dangerous to human life or were 

criminally responsible as conspirators under section 7.02(b). We agree. The term 

“offense” as used in these instructions may refer solely to felony theft, not felony theft 

and the act clearly dangerous to human life. Accordingly, we hold the trial court erred by 

submitting improper felony-murder instructions to the jury. See, e.g., Zuckerman v. 

State, 591 S.W.2d 495, 496 (Tex. Crim. App. 1979) (concluding charge erroneous 

because it authorized jury to convict defendant upon finding co-defendant was guilty and 

without finding defendant was a party).

2. Harm Analysis

When, as here, the appellant failed to object to charge error, reversal is warranted 

only if the appellant was egregiously harmed. See Warner v. State, 245 S.W.3d 458, 461 
28

(Tex. Crim. App. 2008). To determine whether egregious harm occurred, we examine 

the entire jury charge, the state of the evidence, including contested issues and weight of 

the probative evidence, arguments of counsel, and any other relevant information 

revealed by the record as a whole. Id. (citation omitted). The appellant must have 

suffered actual, rather than theoretical, harm. Id. Actual harm is demonstrated if the 

charge error affected the very basis of the case, deprived the defendant of a valuable 

right, or vitally affected a defensive theory. Id. (citation omitted). Egregious harm is a 

difficult standard to prove and must be considered on a case-by-case basis. Taylor v. 

State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (citation omitted).

Overwhelming evidence was presented supporting a finding that Nava, Mendez, 

and Carrillo were criminally responsible for the underlying theft. Additionally, although 

the jury was instructed to acquit appellants if the evidence proved Carrillo acted in self 

defense, it was clearly established that Carrillo unlawfully shot and killed Officer 

Canales, ergo, committed an act clearly dangerous to human life that caused the death of 

an individual. Moreover, the jury likely needed very little time to decide whether the 

shooting occurred in the course and in furtherance of the theft because Carrillo 

committed the shooting while attempting to obtain keys so he could transport the 

televisions to Nava’s house. 

Thus, the principle issue for the jury to resolve was whether appellants were 

responsible as parties to the felony murder. Apparently, the State and appellants were 

aware conviction of felony murder as an accomplice under section 7.02(a)(2) required a 

finding that appellants intended to assist Carrillo in the commission of an act clearly 

dangerous to human life: 

The State did not argue Mendez was responsible as a party under section 

7.02(a)(2); 

The State argued Nava was responsible pursuant to section 7.02(a)(2) because 

he yelled “Shoot him,” thus, encouraging Carrillo to commit the shooting; 

The State never argued that the jury could convict appellants under section 

7.02(a)(2) merely by finding they participated in the theft; 
29

Mendez argued that, although section 7.02(a)(2) responsibility may apply to 

Nava if he yelled “Shoot him,” this theory did not apply to her because she did 

not encourage the shooting; and

Nava argued the State needed the jury to believe he said “Shoot him” because 

he is guilty as a party under section 7.02(a)(2) only if he encouraged Carrillo to 

shoot Officer Canales.

Thus, the last explanation regarding section 7.02(a)(2) the jury received before 

deliberating was agreement by the State and appellant that accomplice responsibility

required an intent to assist in an act clearly dangerous to human life. See Bazanes v. 

State, 310 S.W.3d 32, 37–38 (Tex. App.—Fort Worth 2010, pet. ref’d) (concluding no 

egregious harm because, inter alia, State corrected any misperceptions during jury 

argument); Bui v. State, 964 S.W.2d 335, 347 (Tex. App.—Texarkana 1998, pet. ref’d) 

(same). 

Relative to section 7.02(b), beginning during voir dire, the State and appellants 

focused on the meaning of “anticipated.” In its opening statement, the State informed the 

jury the evidence will prove appellants should have anticipated Carrillo was carrying a 

gun. Appellants assured that the evidence would prove the opposite. The State went to 

great efforts to prove circumstantially that appellants knew Carrillo brought a gun to the 

Fiesta parking lot. Appellants presented contradictory evidence. Finally, during closing 

arguments, the parties strenuously argued their respective “anticipation” positions. The 

State argued appellants should have anticipated the shooting because (1) the conspirators 

were engaged in a high-dollar theft with an unfamiliar person, (2) the conspirators always 

intended to rob Officer Canales of the Budget truck, as evidenced by Nava’s custodial 

statement that Mendez and Carrillo planned to return in the Budget truck, and (3) Nava 

yelled, “Shoot him.” Appellants responded that it is nonsensical to believe the 

conspirators intended to rob Officer Canales because they spent several minutes 

negotiating a price and then paid him; had they truly intended to appropriate the Budget 

truck, they would have done so when they first arrived. Furthermore, appellants argued 

no weapons were found in Nava’s van. Appellants also noted several shortcomings in the 

State’s evidence, including the fact (1) Sergeant Calderon provided testimony 
30

inconsistent with his earlier written statements, (2) although officers testified at trial that 

Nava had been on the passenger side of the van (where the shooting occurred) at the time 

of the shooting, no officer memorialized this fact in his police report, and (3) the State 

recently and “conveniently” discovered Nava said “Shoot him.” 

Thus, appellants’ main defensive theory was that they could not have anticipated 

the shooting. Beginning during voir dire, the jury was informed this was a critical issue 

in the case. The jury was also told by both parties that whether Nava said “Shoot him” 

was an important fact because, if so, he encouraged Carrillo to commit the shooting, 

which meant he was responsible for the murder under section 7.02(a)(2); whether Nava 

said “Shoot him” was hotly contested and subject to competing expert opinions. 

Accordingly, the evidence and arguments do not support appellants’ contention that the

jury could have convicted them merely by finding they participated in a theft—in fact, 

the exact opposite was communicated. For twelve days, the parties had disputed the 

“anticipation” issue. Logically, the State would not have exerted so much effort to prove 

appellants anticipated the shooting if they were guilty of felony murder simply by 

participating in the theft.

We next examine the jury charge. As noted above, the term “offense” as used in 

the erroneous instructions may refer solely to felony theft, not felony theft and the act 

clearly dangerous to human life. This is particularly so because (1) the first part of the 

instruction, referring to felony theft, mentions both Carrillo and Nava/Mendez, (2) the 

second part, referring to the act clearly dangerous to human life, mentions only Carrillo, 

and (3) the last part, referring to accomplice responsibility under 7.02(a)(2), mentions

both Carrillo and Nava/Mendez. Thus, the instructions seemingly associate accomplice 

responsibility with only the felony theft. Nevertheless, the instructions also contain an 

ambiguity because the first part refers to an offense by name (felony theft), but the 

accomplice-responsibility part refers only to generic “offense.” The jury may have 

construed “offense” to mean the whole crime at issue, namely felony murder, which 

includes the felony theft and an act clearly dangerous to human life. 
31

Accordingly, the jury would not necessarily interpret the ambiguous application 

instructions to mandate conviction of appellants for felony murder if the jury merely 

found appellants participated in the theft. Furthermore, based on the evidence and 

arguments, we conclude it would have been unreasonable to construe the instruction in 

this manner. We cannot conclude the jury believed it could avoid resolving the fiercely 

contested issues regarding appellants’ “anticipation” and whether Nava said “Shoot him” 

because of a loophole in the charge. Although the erroneous instruction theoretically 

affected appellants’ main defensive theory, in actuality, it is highly unlikely the jury 

convicted appellants of felony murder based solely on their involvement in the theft. See 

Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (explaining factor affecting 

harmfulness of charge error is likelihood verdict actually based on alternative theory of 

culpability on which the jury was correctly instructed).14 Therefore, we hold that the 

erroneous instruction did not cause appellants egregious harm. The second issues in 

Nava’s murder appeal and Mendez’s appeal are overruled. 

B. “Collaborate in Carrying On”

In her fourth issue, Mendez contends the trial court erred by refusing to submit her 

requested definition for the phrase “collaborate in carrying on criminal activities” in lieu 

of the definition actually submitted in the organized-criminal-activity jury charge. 

A jury charge must contain an accurate statement of the law and all essential 

elements of the offense. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). 

As a general rule, terms need not be defined in the jury charge if they are not statutorily 

defined. Ramos v. State, 303 S.W.3d 302, 308 (Tex. Crim. App. 2009). Jurors are 

presumed to attach a common understanding to the meaning of terms. Smith v. State, 297 

 

14 These facts differentiate the instant case from Green v. State, cited by appellants. In Green, 

this court reversed appellant’s murder conviction because the charge erroneously authorized the jury to 

convict appellant if it found his brother intentionally killed the decedent; there was no requirement that 

the jury also find appellant intended to assist or encourage his brother in committing the murder. 233 

S.W.3d 72, 79–86 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Unlike the erroneous instruction 

in our case, the Green instruction was not ambiguous. Further, the prosecutor in Green compounded the 

error during jury argument by contending appellant afforded his brother the opportunity to commit the 

murder and was, thus, “equally guilty” for his brother’s actions. Id. at 82–83. 
32

S.W.3d 260, 275 (Tex. Crim. App. 2009). However, terms which have a technical legal 

meaning may need to be defined. Ramos, 303 S.W.3d at 308. This rule is particularly 

true when there is a risk that jurors may arbitrarily apply their own personal definitions of 

the term or when a definition of a term is required to assure a fair understanding of the 

evidence. Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App. 2003). The fact 

that an appellate court defined a statutorily-undefined term when reviewing sufficiency of 

the evidence in one case does not necessarily mean the definition must or even should be 

provided to the jury in future cases. See Kirsch v. State, 357 S.W.3d 645, 651 (Tex.

Crim. App. 2012). 

The trial court has broad discretion in submitting proper definitions and 

explanatory phrases to aid the jury. Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d). A trial court abuses its discretion when it acts 

outside the wide zone of reasonable disagreement. See Casey v. State, 215 S.W.3d 870, 

879 (Tex. Crim. App. 2007). When we review a definition for error, we must examine 

the jury charge as a whole instead of as a series of isolated and unrelated statements. 

Dinkins, 894 S.W.2d at 339.

As noted above, relevant to this case, a person engages in organized criminal 

activity if, with the intent to establish, maintain, or participate in a combination or in the 

profits of a combination, he commits theft. Tex. Penal Code Ann. § 71.02(a)(1). 

“Combination” means three or more persons who collaborate in carrying on criminal 

activities. Id. § 71.01(a). 

In the jury charge, the trial court defined “collaborate in carrying on criminal 

activities” as “working together with a specified number of others in specified criminal 

activities.” This definition stems from a 1984 opinion in which a court of appeals was 

determining whether the phrase rendered the statute unconstitutionally vague. See 

Lucario v. State, 677 S.W.2d 693, 699 (Tex. App.—Houston [1st Dist.] 1984, no pet.). A 

few years later, the Court of Criminal Appeals, considering sufficiency of the evidence,

utilized this definition as the meaning of the term “collaborate” (not the phrase 
33

“collaborate in carrying on”) as used in the statute. Barber v. State, 764 S.W.2d 232, 236

(Tex. Crim. App. 1988) (citing Lucario). 

However, in 1998, the Austin Court of Appeals addressed the definition when 

considering sufficiency of the evidence, this time focusing on whether the phrase 

“carrying on” requires some degree of continuity. Nguyen v. State, 977 S.W.2d 450, 

454 (Tex. App.—Austin 1998), aff’d, 1 S.W.3d 694 (Tex. Crim. App. 1999). Based on 

dictionary definitions and statutory context the court determined “collaborate in carrying 

on” means to “work together in a continuing course of criminal activities.” Id. at 454–55. 

On discretionary review, the Court of Criminal Appeals adopted this definition, 

explaining “[t]he verb ‘carrying on’ connotes an action that continues over time. The 

plural object, ‘activities,’ implies that the combination seeks to do more than one thing.” 

Nguyen, 1 S.W.3d at 696–97.

During the charge conference, Mendez requested submission of the Nguyen 

definition of “collaborate in carrying on,” which the trial court refused. Mendez argues 

the definition submitted by the trial court did not clearly inform the jury that a 

“combination” requires more than commission of the underlying, singular offense. We 

agree the requested definition more clearly conveys that appellants must have intended 

for the combination to engage in continuing criminal activities. However, the definition 

provided by the trial court was not an inaccurate statement of the law. The phrase 

“working together with a specified number of others in specified criminal activities” 

refers to multiple criminal activities. Moreover, “combination” was defined in the charge 

as “three or more persons who collaborate in carrying on criminal activities, although . . . 

membership in the combination may change from time to time.” The fact that 

membership may change indicates the combination has engaged or intends to engage in 

more than one criminal activity. Accordingly, the plain meaning of the submitted 

definition, when construed in light of the jury charge as a whole, did not lead the jury into
34

convicting Mendez of organized criminal activity based solely on her participation in the 

underlying theft.15

Additionally, we hold “collaborate in carrying on” is not a phrase which has 

acquired a technical legal meaning that must be provided to the jury. The Nguyen 

definition of the phrase is based on the commonly understood meaning of “collaborate” 

and “carrying on” and another statutory provision which mentions “continuing course of 

conduct.” See Nguyen, 1 S.W.3d at 696–97; Nguyen, 977 S.W.2d at 454–55; see also 

Tex. Penal Code Ann. § 71.03(4) (West 2011) (“It is no defense to prosecution under 

Section 71.02 that . . . there is a change in the number or identity of persons in the 

combination as long as two or more persons remain in the combination and are involved 

in a continuing course of conduct constituting an offense under this chapter.”).

Finally, Mendez argues there is evidence the submitted definition actually did 

confuse the jurors because, during deliberations, they sent the trial court a note with the 

following question: “Does organized criminal activity require more than one offense to 

meet the definition of the law? Please clarify.” The trial court responded, “You have 

received all applicable instructions.” As we have explained, the jury should have gleaned

from the charge that the offense requires intent to establish or participate in a group of 

persons working together in a continuous course of criminal activities. Nevertheless, the

answer to the jury’s inquiry is “no.” The Nguyen court held that additional “criminal 

activities” need not be criminal offenses at all; they may be generally innocuous 

activities—such as renting office space or leasing trucks—that are engaged in for the 

purpose of committing more than a single offense. 1 S.W.3d at 697. Moreover, the 

Nguyen court explained the combination need not have engaged in any criminal activities 

 

15 If the Nguyen definition “intend to work together in a continuing course of criminal activities” 

means the parties intend to work together in criminal activities indefinitely, then we would agree the trial 

court’s definition “working together with a specified number of others in specified criminal activities” 

was erroneous because “specified criminal activities” may logically be interpreted to mean a definite 

number of activities. However, we construe Nguyen to mean the defendant is guilty of organized criminal 

activity if she commits or conspires to commit the underlying offense with the intent to establish, 

maintain, or participate in a group that has engaged, or she intends will engage, in at least one other

criminal activity.
35

at the time a defendant commits the underlying offense because all that is necessary is the 

commission of an offense with the intent to establish a combination in the future. Id.16

Accordingly, we hold that the trial court did not abuse its discretion by refusing

Mendez’s requested definition. We do not “encourage courts to use [the submitted] 

definition in the future, but in this particular case, it did not result in trial error.” Shipp v. 

State, 331 S.W.3d 433, 444 (Tex. Crim. App. 2011) (Meyers, J., concurring). Mendez’s 

fourth issued is overruled.

C. Sudden Passion Instruction

Finally, in her fifth issue, Mendez contends she is entitled to a new trial on 

punishment because the trial court erred by refusing her request for a jury instruction 

regarding sudden passion.

At the punishment phase of a murder trial, a defendant may raise the issue of 

whether she caused the death under the immediate influence of sudden passion arising 

from an adequate cause. See Tex. Penal Code Ann. § 19.02(d). “If the defendant proves 

the issue in the affirmative by a preponderance of the evidence, the offense is a felony of 

the second degree.” Id. “Sudden passion” is defined as “passion directly caused by and 

arising out of provocation by the individual killed or another acting with the person killed 

which passion arises at the time of the offense and is not solely the result of former 

provocation.” Id. § 19.02(a)(2). “Adequate cause” is defined as “cause that would 

commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary 

temper, sufficient to render the mind incapable of cool reflection.” Id. § 19.02(a)(1).

The trial court must provide a sudden passion instruction if there is some evidence

to support it, even if that evidence is weak, impeached, or contradicted. See Trevino v. 

State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). However, the evidence “cannot be 

 

16 In fact, it is not necessary that the defendant have completed the underlying offense. Under 

section 71.02(a), a person commits organized criminal activity if he “commits or conspires to commit” 

certain enumerated offenses. Tex. Penal Code Ann. § 71.02(a) (emphasis added). However, the State 

charged appellants with having committed the underlying offense. Thus, the “or conspires to commit” 

language is inapplicable.
36

so weak, contested, or incredible that it could not support such a finding by a rational 

jury.” McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005) (citing Trevino,

100 S.W.3d at 238).

Mendez argues she was entitled to a sudden passion instruction because some 

evidence supported a finding that Carrillo was provoked by Officer Canales’s refusal to 

provide the key to the Budget truck and apparent plan to steal the conspirators’ $6,500. 

However, even considering only facts favorable to Mendez, we conclude the evidence did 

not entitle her to an instruction on sudden passion. Carrillo, who was extremely angry

and panicking that Officer Carrillo appeared to be “double-crossing” the conspirators, 

approached Officer Canales from behind and pointed a gun at him. Carrillo demanded 

the key three separate times before shooting Officer Canales in the back. These facts do 

not support a finding that Carrillo committed the shooting under the immediate influence 

of sudden passion arising from an adequate cause. Under the circumstances, being duped 

out of even a very substantial amount of money would not commonly produce a degree 

of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render 

the mind incapable of cool reflection.

Furthermore, Carrillo was the party who provoked the situation by brandishing a 

gun; before that point, the conspirators—albeit becoming increasingly frustrated by the 

situation—were merely ordering Officer Canales to produce the key and enter Nava’s 

van, and Officer Canales was still at the scene, looking as though he planned to flee with 

the money. See Smith v. State, 355 S.W.3d 138, 149 (Tex. App.—Houston [1st Dist.] 

2011, pet. ref’d) (“A defendant may not rely on a cause of his own making, such as 

precipitating a confrontation, to support his argument that he acted out of sudden passion

arising from adequate cause.”). Obviously, it was Carrillo’s own volatile temper that 

caused the situation to escalate and him to draw the gun and pull the trigger. See Saldivar 

v. State, 980 S.W.2d 475, 506 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (“[T]he 

murderous acts of one not of ordinary temper or whose response to the alleged cause is 

not objectively common in the ordinary, reasonable person [do] not support a voluntary 
37

manslaughter issue.” (citation omitted)). Accordingly, the trial court did not err by 

refusing Mendez’s requested instruction. Mendez’s fifth issue is overruled. 

We affirm the trial court’s judgments for each appellant.

/s/ Charles W. Seymore

Justice

Panel consists of Justices Seymore, Boyce, and Yates.

17

Publish — Tex. R. App. P. 47.2(b).

 

17 Senior Justice Leslie Brock Yates sitting by assignment.