Affirmed and Opinion filed August 16 , 2012

.

In The 

## Fourteenth Court of Appeals

NO S

. 14

- 1 0

- 0 0 527

- CR , 14

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- 00 528

- CR

ANDRES MALDONADO NAV A , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 2 32nd District Court

Harris County, Texas Trial Court Cause No s . 1260355, 12 33224

NO S

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- 00 530

- CR , 14

- 1 0

- 00 531

- CR

XIOMARA ROSALES MEND EZ , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 2 32nd District Court

Harris County, Texas Trial Court Cause No. 1233225, 12216642 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. B ACKGROUND
In June 2009, certain divisions of the Houston Police Department (“HPD”)
conducted “reverse sting” operation s 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 h im 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 inform ed 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
C alderon 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 mon ey. Sergeant Calderon agreed

. HPD officers then prepared to conduct the operation

. The informant and
undercover HPD o fficer 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 brief s relative to each of his convictions, whereas Mendez filed a single brief relative to her convictions.3

Thirty

- four tele visions and two laptops with a combined value of over $30,000 were
stored i nside the cargo area of the Budget truck

. 2 Many other undercover officers operating unmarked vehicles were s tationed near the Fiesta parking lot. Sergeant
Calderon and Officer Rub en 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 co ming. 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, ” (colle ctively, “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 television s before purchasing them, but
Officer Canales insisted on payment before delive ry . 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 deteriorate d 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
d emanded 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 s hot 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. Office rs 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 Ca nales die d as a result of his gunshot wound

. Nava and Mendez were indicted for felony murder and organized crim inal 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

. T he jury
assessed Mendez ’s punishment a t sixty years’ c onfinement for felony murder and twenty years’ confinement for organized criminal activity

. II. L EGAL S UFFICIENCY

I n 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 t hird 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
fin der 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

rea sonable 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 c ommitted 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 f acts 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 ind ependently 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 the6

indictment, does not u nnecessarily increase the State’ s burden of proof or u nnecessarily restrict the State’ s theories of liability, and adequately describes the particular offense for
wh ich the defendant was tried. Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

B. Sufficiency R eview: Felony Murder Relevant to the present case, a person commits felony murder if , in the course and in furtherance of the commission or attempt ed 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 pr operty of a certain value with intent to deprive the owner of property. Id. § 31.03(a), (e) (West Supp. 201 2 ). “Appropriate” means to acquire or otherwise exercise control over property other than real property. Id. §
31.01 (4) (West Supp. 201 2 ). Approp riation 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’ convict ion 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 consp irators are guilty of the felony actually committed, thoug h 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).

The re is strong evidence support ing 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 telev isions; Sergeant Calderon informed7

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
be ing stolen. This testimony is substantiated by the undercover

- recording transcript pertaining to the parties’ conversation immediately after Officer Canales open ed the rear door of the Budget truck:

Me ndez: 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.

Und eterred 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 t he 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 shooting8

occurred during the commission and in furtherance of the thef t as contemplated in the felony

- murder statute.

The undercover

- recording transcr ipt 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! Off icer 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 Ca nales: 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 ho ld 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 death9

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 (Te x. 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

– 9 1 (Tex. App.

— Dallas 1992, no pet. ) (holding felony murder was properly b ased on underlying offense of robbery even though death

was direct result of the offense )

. However, in Loredo v. State , t his 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). T he 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, re gardless 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 d angerous act performed during the course and in furtherance of the burglary , supporting a ppella nt ’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 conspi rators were attempting to obt ain 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” to10

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 Ca rrillo 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 i s 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

.
W e agree with appellants that theft is not a crime which inherently entails the
threat of violence

. However, we conclude the re is legally sufficient evidence to support a finding that appellants should have anticipated a shooting w ould occur during the

com mission of the underlying theft

. When Mendez and Sergeant Cald e ron 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 lev el of distrust when someone travels to a strange location and meets with a n unknown person regarding the purchase of stolen property ; “There i s no honor among thieves.” The conspirators obviously were suspicious of Officer Canales because they wanted to test the te levisions to ensure they11

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 t h e 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 vola tile nature of this criminal transaction , the
circumstantial evidence support s 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 television s in the Budget truck , and all of the parties stepped in to the
cargo

- area of the tr uck. 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, Ca rrillo 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 Ca rrillo retrieved the object from Nava’s van , Mendez wa s 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 disparage d Carrillo to Officer Canales, saying she should not have brought Carrillo. However, Nava then told Mendez that Carrillo “says . . . give [Officer Canales] the six12

thousand five hundred for the whole package.” Unbelievably , n otwithstanding that she
had negotiat ed a lower price, Mendez acceded to Carrillo’ s order. Additionally, despite Nava’s and Mendez’s protestation s , Carri llo 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 ro g u e because he p erformed the act when any of his co

- conspirators could have exited the Budget truck and observed
him. Th e 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 [14 th 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 assume d control of the negotiations, negotiate d 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 plann ed more than a straightforward negotiation for stolen televisions and a finding that Carrillo retrieved the

towe l

- wrapped object as part of the plan

. The parties then discuss ed travel arrangements for transporting the televisions to Nava’s house for test ing

. 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 cull ed their cash and paid Officer Canales $6,500

. Carrillo decided he and
Mendez would dr ive in the Budget truck, and Nava, Doe, and Officer Canales would13

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 f

or his key , but he stalled. Even Doe directed Officer Canales to produce the key and enter Nava’s van. Officer Canal es 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 Budge t 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
M oney 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 Budge t truck was a gun. While the c onspirators 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

. W hite shorts

were found in the console of the Budg et truck following the incident. DNA recovered
from the shorts did not match the DNA of Officer Canales, Nav a , Mendez, Carrillo , or Doe. However, during police questioning, Nava stated that he keeps clothing in his van,
in cluding shorts. The white shorts were consisten t with Carrillo placing a white towel

wrapped 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

con ceal 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 y elled 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 ev en said, the jury was entitled t o believe the State’s expert.1 4

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. I t 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, t he fact that Nava encourage d Carrillo to sho o t Office r Canales support s 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 R eview: 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. 201 2 ). “Profits” me ans 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 evid ence 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 tr ucks when they are in transit. Mendez: M

- hm.

5 We discuss this definition in depth below in the subsection entitle d “B. ‘Collaborate in Carrying O n.’ ”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 findi ng that Nava, Mendez, and Carrillo intended to establish a combination

. 6 Accordingly, we overrule the second issue in Nava ’s organized

- criminal

- activity appeal.

I II

. M ISSING R ECORD

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 appeal s is missing. In her first issue, Mendez presents the same argument

. At some point during the appellate process, it was disc overed that the record of
counsel confer ring 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 Procedu re 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 ex hibit or a significan t 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 suf ficient 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 the ft of power tools committed by at least Mendez and Carrillo.17

(3) if the lost, destr oyed, or inaudible portion of the reporter ’ s record, or the lost or destroyed exhi bit, 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 Ke i rnan, 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 w ould not consider the full range of punishment. However, the trial court denied appellants’ challenge for ca u se 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 challenge d 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 th at there were no appealable issue s regarding voir dire, meaning either any objectionable venireman had been rehabilitated or error had not been preserved. The prosecutor s also testified that veniremen were called to the bench for individual questioning during the challenge

- for

cause portion of voir dire.18

The trial court testified 7 that it remembered (1) denying appellants’ challenge for
cause to venireman No. 30 because the venireman h ad 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 ju rors 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) Appellan ts 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) question s 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 objecte d to the trial court testifying. The trial court did not rule on the objection and proceeded to recall events that occu rred during voir dire. We consider these recollections as testimony because, as discussed below, the trial court relied on its recollec tions 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. Dav is v. State , 329 S.W.3d 798, 807 (Tex. Crim. App. 2010).

10 Appellants also emphasize the fact t he 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 i s necessary to resoluti on of
their appeal s 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 obvio usly 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

r esolution of their appeal s because they are unable to determine whether counsel was
ineffective during jury selection . In 2001, the Court of Criminal Appeal s seemed to lea n toward a rule that missing records will rea dily 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 guil t 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 hi s 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 a n ineffective

- assistance

of

- 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 adju dication/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 publicat ion), 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 . Th e court then summarily held, “Because appellant can make [an ineffective

assistance

- 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
wi thout even mentioning the basis f or appellant’s argument that the record may show
ineff ective assistance of counsel

. 11 Legal commentators have recognized the court’s truncated analysis:
The [ Kirtley ] court engaged in no speculation as to whether the [ineff ective

assistance

- o f

- 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 na ture 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 Ser ies: Criminal Practice &
Procedure § 55:99 (3d ed. 2011).
However, a year later, the Court of Criminal Appeals held that speculati on a missing record may memorialize error do es 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 s he was entitled to a new trial pursuant to Rule 34.6(f). Id. T he Court of Criminal Appeals explained that Rule 34.6(f) issues

“ shou ld 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
ap peal 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

. T he 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 rega rding 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 nece ssity 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 necess ary

. See Issac v. State , 989 S.W.2d 754,
757 (Tex. Crim. App. 1 999) (“ Although the lack of a record may in some cases deprive an appellate court of the ability to determine whether the absent porti ons are necessary to the appeal’ s resolution, an automatic rule of reversal is not just ified. ”).

A ppellants argue the missing portion of the record may reveal that trial counsel , without a reasonable strategy , failed to identify to the trial court a n objectionable
venireman who said something which rendered him challengeable for cause when22

i ndividually 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 j ury

- selection error if t he y i n fact did fail to preserve error

. See Rylander v. State , 101 S.W.3d 107, 11 0

– 1 1 (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.’”)

. Acco rdingly, we hold appellants have not met their burden of proving that the missing portion of the record is necessary to resolution of their appeal s . We overrule appellants’ first issue. 12

I V

. J URY C HARGE 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 wa s 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 s ection 7.02(b)

. We explained sect ion 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 app ly 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 uni ntentional 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 th at 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), [de fendant] 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; or24

(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) ( expla ining

c apital

- 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 part e 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 crimina l l y respons ible : 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

- include d offense. Felony murder attaches no culpable mental state to the killing itself, but § 7.02(a)(2) requi res 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 stat ut e [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 i nvoluntary 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 responsible25

as an accomplice to involuntary manslaughter because of the incongruity of a finding that
he intentionally assisted the shooter in commit ting 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 h is friend in
commit ting involuntary manslaughter by recklessly kill ing some one

— 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 commit ting 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 suffici ent to support finding
defendant c riminally 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 no t 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 cause d 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 assist ed another person in commit ting a nonv iolent 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 to26

destroy evidence)

. 130 S.W.3d at 2 79

– 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 commit ting both the underly ing 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 intent ionally solicits, encourages, d irects, aids, or attempts to aid his cohort s in commit ting both the underlying felony and an act clearly dangerous to human life which caused a death ( and

wa s committed in the course and in furtherance of the commission or attempted
commission of the underlying felony , or in immediate flight therefrom ). 13 I mportantly, 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 t o 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 commit ting 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 f elony
murder based on a ccomplice responsibility if the following fact s were prove d beyond a
reasonabl e 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

- includ ed 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 Tippit t , 41 S.W.3d at 324.27

c ourse 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 a ssist 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 knowin gly 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 dead ly 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 [Nav a] and/or [Carrillo] to commit the offense . [ Mendez’s jury charge ] (emphasis adde d ). Appellants contend these charges authorized the jury to convict them of felony murder if the jury merely found (1) appellant s intentionally aided the commission of the

t heft , 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. T he term “offense” as used in these instructions may refer solely to felony theft, not felony theft
and the act clearly dangerous to hu man 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 convi ct 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, 46128

(Tex. Crim. App. 2008). To determine whether egregious harm occurred, we examine the entire jury charge, the st ate 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. Actua l 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 b e consid ered on a case

- by

- case basis. Taylor v.
State , 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (citation omitted)

. O verwhelming evidence was presented supporting a finding that Nava, Mendez,
and Carrillo were criminally responsible for the underlying thef t. A dditionally , a lthough 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 caus ed 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
fin ding that appellants in tended to assist Carrillo in the commission of an act clearly dangerous to human life :

T he State did not argue Mendez was responsible as a party under section 7.02(a)(2);
T he State argued Nava was responsible pursuant to section 7. 02(a)(2) because he yelled “ S hoot him, ” thus, encouraging Carrillo to commit the shooting;
T he 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 “S hoot him,” this theory did not apply to her because she did not encourage the shooting ; and Nava argued the State need ed the jury to believe he said “S hoot him” because he is gui lty as a party under section 7.02(a)(2) only if he encouraged Car rillo 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

r equired 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

. T he State went to great efforts to prove circumstantially that appellants knew Carrillo brought a gun to the Fiesta parking lot. Appellants presented contradictory evidence . F inally, during closing arguments, the parties strenuously argued their respectiv e “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 Bud get truck, as evidence d by Nava’s custodial statement that Mendez and Carrillo planned to return in the Budget truck, and (3) Nava yelled, “S hoot him .” Appellants responded that it is nonsensical to be lieve 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 the y first arrived. Furthermore, appellants argued no weapons were found in Nava’s van. A ppel lants also noted several shortcomings in the State’s evidence , including the fact (1) Sergeant Calderon provided testimony30

inconsistent with his earlier written statements , (2) although officers testified at trial that Nava had been on the passenger side o f 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” disco vered Nava said “S hoot him. ”
Thus, appellants’ main defensive theor y was that they could not have anticipated the shooting

. Beginning during voir dire, t he jury was informed t his was a critical issue
in the case. The jury was also told by both p arties that whether Nava said “S hoot him” was an important fact because, if s o, he encouraged Carrillo to commit the shooting, which meant he was responsible for the murder under section 7.02(a)(2); whether Nava said “ S hoot him” was hotly con tested and subject to competing expert opinions. Accordingly, the evidence and arguments d o not support appellants’ contention that the jury could have convict ed them merely by finding they participated in a theft

— in fact, the exact opposite was communicated

. For twelve days, the parties had disputed the “antici pation” 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.

W e next examine the jury charge

. As noted above, the term “offense” as used in
th e 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 p art, referring to accomplice responsibility under 7.02(a)(2), mentions both Carrillo and Nava/Mendez. Thus, the instruct ion s seemingly associat e accomplice responsibility with only the felony theft. Nevertheless, the instruction s also contain an ambiguity because the first part refe rs 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 amb iguous application
instructions to mandate convict ion 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 unre asonable 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 “ S hoot him” because of a loophole in the charge. A lthough 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. 1 999) (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 , w e hold t hat t he

erroneous instruction did not cause appellants egregious harm. The second issue s 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
reques ted 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 essentia l
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). Ju rors are presumed to attach a common understanding to the meaning of terms. Smith v. State , 297

14 These facts differentiate th e 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 encou rage his brother in commit ting 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

err or 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

mea ning 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 a n 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 Kirs ch v. State , 357 S.W.3d 645, 651 (Tex.
Crim. App. 2012)

. The trial court has broad discretion in submitting proper definitions and explan atory 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 engag es in organized criminal activity if, with the i ntent 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. § 7 1.01(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.” T his 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 A ppeals , cons idering sufficiency of the evidence , utilized this definition as the meaning of the term “collaborate” (not the phrase33

“collaborate in carrying on”) as used in the statute. Barber v. State , 764 S.W.2d 232, 236 (Tex. Crim. App. 1988) (citing Lucario ).

Ho wever, 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” requir es some degree of continuity

. N guyen 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 activiti es.” 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. ”
N guyen , 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 off ense

. We
agree the requested definition more clearly convey s that appellants must have intended
for the combinat ion 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 mu ltiple criminal activities. Moreover, “combination” was defined in the charge as “three or more person s who collaborate in carrying on criminal activities, although . . . membership in the combination may change from time to time.” The fact that
membersh ip may change indicates the combination has engaged or intends to engage in
more than one criminal activit y

. Accordingly, the plain meaning of the submitted definition, when construed in light of the jury charge as a whole , did not lead the jury into34

convict ing 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. T he 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 N

guyen , 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 co mbination 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, the y sent the trial court a not e 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 explain ed, the jury should have glean ed 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 activit ies . Nevertheless, the answer to the jury’s inquiry is “no.” The Nguyen court held that additional “criminal activities” need not be criminal offense s 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 beca

use “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 offen se with the intent to establish, maintain, or participate in a group that has engaged, or s he intends will engage , in at least one other criminal activity.35

at th e 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
fourt h 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 p unishment phase of a murder trial, a defendant may raise the issue of
whether s he 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, r age, 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 evid ence 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 complete d the underlying offense. Under section 71.02(a), a person commits organized criminal activity if he “commits or conspires to commit ” certain enumerated offenses. Te x. Penal Code Ann. § 71.02(a) (emphasis added). However, the State charged appellants wit h 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 w as extreme ly 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 fact s 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, b eing duped out of even a very substantial amount of money would not commo nly 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, t he 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 ad equate cause.” ). Obviously, i t wa s Carrillo’s own volatile temper that
caused the situation to escalate and him to draw the gun and pull the trigger. See Saldiv a r 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 voluntary37

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 judgment s for each appellant

.

/s/ Charles W. Seymore Justice

Panel consists of J ustices Seymore , Boyce, and Yates

. 17
Publish

— Tex. R. App. P

. 47.2( b).

17 Senior Justice Leslie Brock Yates sitting by assignment.