AFFIRMED as MODIFIED; and Opinion Filed March 27, 2024. 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-01119-CR CARRENDIUS WALKER, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F19-76545

MEMORANDUM OPINION Before Justices Garcia, Breedlove, and Kennedy Opinion by Justice Kennedy A jury found appellant, Carrendius Walk er, guilty of capital murder. The State did not seek the death penalty, so th e trial court sentenced appellant to life imprisonment without parole. In nine issues , appellant challenges (1) the sufficiency of the evidence to support his capital mu rder conviction, (2) the trial court’s evidentiary rulings, and (3) various aspects of the jury charge. In a cross issue, the State asserts that the judgment should be modified to properly reflect the sentence imposed. We affirm the trial court’s j udgment as modified herein. Because all issues are settled in law, we is sue this memorandum opinion. T EX

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. P. 47.4.–2– B ACKGROUND Appellant was indicted for the capital murder of Brian Harp, the owner of Café Delicious. The indictment alleged a ppellant intentionally caused Harp’s death by shooting him with a firearm while in th e course of committing and attempting to commit the offense of robbery. Appellant pleaded “not guilty” to the charged offense and proceeded to trial before a jury. The State’s witnesses at trial include d David Abrom, an accomplice to the offense who acknowledged that he was testif ying in exchange for an offer of a twenty-two-year sentence on a reduced murder charge. 1 Other witnesses for the State included various law enforcement o fficials and civilians involved in the investigation of the murder, and many others. The defense did not call any witnesses. The defense’s theory appeared to be that Abrom was not credible, and the State did not corroborate his testimony. I. Accomplice Witness Testimony as to Pre-Arrest Events Abrom’s testimony established the followi ng. On the morning of September 25, 2019, Abrom received a call from Er ic Curtis, also known as “Nine” and “Rondo,” telling him that he n eeded some help. Abrom re trieved his assault rifle from his “baby mama’s house” and went to S outh Dallas to meet Curtis. When he arrived, Curtis was in a silver Mercedes, that he often drove, with three other men:

1 The record reflects that Abrom had numerous convi ctions and was a former gang member of 330 and the Goom Squad.–3– appellant, also known as “K .D.”; James Moore, also know as “Beamer”; and an individual identified only by his nickname “T hird.” Appellant was in the driver’s seat, Curtis was in the passenger seat, a nd Moore and Third were in the back seat, with Moore behind appellant a nd Third behind Curtis. Abrom got into the back seat and sat between Moore and Third. Everyone in the car was armed: Abrom, appellant, and Curtis carried assault rifl es, and Moore and Thir d carried handguns. After he got in the car, Abrom learned the plan was to commit a robbery at a restaurant called Café Delici ous. Abrom understood the re staurant was a store front for gambling and drugs and that appellant and Curtis had previously been to Café Delicious to gamble and buy drugs. “Trick dice” had reportedly been used at the restaurant, and appellant was up set because he “got hit.” The group arrived at the restaurant around noon. Appella nt pulled into a parking spot and then backed into the spot , so that it would be easy to get away. Moore went inside the restaurant to “scope it out” while the others remained in the vehicle. There were only a few people inside the restaurant. Moore returned to the vehicle and reported what he saw. Moore re mained with the vehicle while the other men went inside the restaura nt. Appellant wore a green mask, and Curtis wore a black mask. Appellant wore a mask beca use people at Café Delicious knew him and he did not want to be recognized. Th e group split up once they were inside the restaurant. Abrom went to th e back of the restaurant, Cur tis went to the dining area where a man with money and drugs was sitting, and appella nt and Third went to an–4– office on the side of the restaurant. Abro m found the restaurant’s owner, Brian Harp, in the back, forced him to the ground, and s earched him. Abrom then directed Harp to the area behind the counter and followed him with his gun to Harp’s back. As Harp walked with both hands in the air, appellant appeared from around the corner and fired his rifle at Harp. Harp fell to the ground, and the group ran out of the restaurant. Everyone returned to the Merced es and Moore, now in the driver’s seat, drove them away from the scene and to Cu rtis’s girlfriend’s apartment, the spot where they hang out, where they divided money and drugs that were taken during the robbery. After they left the restaurant , appellant discovered that he had lost his flip phone. He did not know where he lost it. They all looked for it in the apartment and in the Mercedes, and Cur tis called the phone’s number in an effort to see if he could locate it. Surveillance videos of the restaurant and the parking lot were admitted into evidence, published to the jury, 2 and snippets of same were shown to the jury with Abrom identifying the Mercedes pulling into the parking lot of Café Delicious as Curtis’s car; indicating snippets of the vi deos show the car backing into a parking

2 The videos of the parking lot showed the Merced es arriving; a man exiting the vehicle from the back driver’s side of the car and returning, and then four men leaving the car; the driver wearing a green mask, the passenger wearing a black mask, and two individual s from the back seat wearing hoodies. The videos also showed the men getting back into the car, the ma n wearing the green mask getting into the back seat behind the driver, the men in the hoodies getting into the back seat from the right side of the vehicle, and the man wearing the black mask getting into the passenge r seat. The videos from inside the restaurant showed Harp with his hands in the air, Abrom backing away, and Harp being shot by the individual wearing the green mask.–5– spot, Moore leaving the vehi cle, Moore coming back to the vehicle, Curtis getting out of the front passenger seat, Third ge tting out of the back seat on the passenger side, himself getting out of the middle of th e back seat from the right side of the vehicle, appellant getting out of the driver’s seat, people running to the car, appellant running to the left side of the vehicle, Third followed by Abrom running to the right back side of the vehicle, and Curtis carry ing a bag. Abrom confirmed that a minor switch up in the positioning of the indivi duals in the car occurred, with Moore becoming the driver and appellant sitting in the driver’s side b ack seat where Moore had been sitting when they arrived. With respect to snippets from the surv eillance videos of the inside of the restaurant, Abrom indicated some of them showed Moore walking into the restaurant; Moore walking out of the restau rant; Curtis, appellant, Abrom, and Third walking into the restaurant; and the shoo ting. Abrom identified Harp as the man with his hands in the air in the video. Abrom indicated that he was startled and shocked when Harp was shot. At first he thought he had also been shot. Abrom identified the person wearing the green mask , the person who shot Harp, as appellant and confirmed that the video showed appellant was weari ng gloves at the time of the offense. II. Other Evidence Presented Co ncerning Pre-arrest Events Through Detective Frank Serra, the lead de tective in the investigation of the offense, and other law enforcement official s, the State established the following. A–6– call went out to 9-1-1 at 12: 20 p.m., and police and parame dics were dispatched to the scene, followed by crime scene inve stigators and Detective Serra. Among the items collected at the scene were two fire d shell cases on the floor behind the counter and a flip phone in the parking lot. Detective Serra viewed footage from the restaurant’s surveillance came ras and saw how the offense o ccurred. He also viewed video of the parking lot. Detective Serra testified that various sc reenshots from the videos that were admitted into evidence showed that the flip phone they found in the parking lot of Café Delicious was not there before the su spect vehicle arrived. In addition, Detective Serra established that in viewi ng the videos he determined no one walked between the suspect vehicle and the vehicl e parked next to it between the time the vehicle arrived and left. Th e flip phone was found on the driver’s side of the vehicle, the side of the vehicle where the man in the green mask exited and returned to the vehicle. In addition, Detec tive Serra explained that vide o footage of the parking lot showed an ICN number on the windshield of the Mercedes. ICN numbers are assigned to vehicles that have been im pounded by the City of Dallas, so Detective Serra was able to use the ICN number to discover th e vehicle had been impounded on September 14, 2019, and was registered to Quintavia Johnson, Curtis’s girlfriend. On the evening of the murder, a num ber of undercover officers conducted surveillance outside of the apartment liste d as the address for Johnson on her vehicle registration. The officers observed the Mer cedes as well as a bl ack Chrysler 300 and–7– a dark green Honda Accord at that locat ion. The officers also observed various armed individuals go back and forth from the three cars to the apartment and what appeared to be an individual searching th e Mercedes. The officers contacted patrol Officer Matthew Gronau and his partner about the Mer cedes and its suspected involvement in the murder of Harp. Later that night, Officer Gronau and his partner conducted a traffic stop of the Mercedes on the basis of a missing front license plate. Johnson was the only occupant of the vehicle. The officers de tained Johnson on traffic violations and impounded the vehicle. An inventory search of the vehicle revealed a number of identification cards, a black face mask and a green Ninja Turtle mask. One of the identification cards bore the name of Eric Curtis. Officer Gronau’s body cam video was played for the jury. That same night, Detective Serra obtaine d a search warrant for the apartment they had been surveilling and arranged for a SWAT team to execute same due to the violent nature of the murder of Harp and the number of individuals and weapons involved. As the SWAT team arrived at the apartment complex, individuals carrying firearms got into vehicles and began to leave. One person took off running from police officers and was shot and killed. That person was later identified as Curtis. Sometime between midnight and leading into the morning of September 26, officers conducted a traffic stop of the dark green Honda Accord that had previously been seen at the apartment complex. Abrom was one of the vehicle’s occupants, and–8– he was wearing the same clothes that we re seen on one of the suspects in the restaurant’s surveillance video. Ab rom was arrested and taken to police headquarters, where he waived his righ ts and spoke with Detective Serra. III. Accomplice Evidence Concern ing Post Arrest Events Abrom indicated that during his first in terview with Detective Serra he was not completely honest because he was high. After he terminated the interview and was taken to jail, he called his girlfrie nd and discovered poli ce had searched her apartment and found the assault rifle he ca rried during the robbery. He asked his girlfriend to reach out to Detective Serra to schedule another interview. Abrom claimed he was honest with Detective Serra during the second interview and that after he told Detective Serra what had ha ppened, Detective Serra showed him some snippets of the surveillance videos and sc reenshots. Abrom did not see all of the surveillance videos until the Friday before the trial started. Abrom was able to identify the people in the screenshots Detec tive Serra showed him. With respect to how to locate appellant, Abrom indicated th at appellant drove a black Cadillac and that a day or two before the o ffense he ran from the law. IV. Non-Accomplice Evidence Concern ing Post Arrest Events According to Detective Serra, during hi s first interview Abrom admitted to being in the Mercedes on the date of th e murder and identified the nicknames of individuals he had been with that day, including Nine, Ten, Rondo, Third, Beamer, and Kodak. Detective Serra showed Abro m still shots of people getting out of the–9– car and a snippet from the surveillance vi deo showing the shoot ing. A few days later, Detective Serra rece ived a phone call from a family member telling him Abrom wanted to give another statement. During the second interview, Abrom told Detective Serra the details of what ha ppened on September 25, how Curtis called him that morning, how he and his accomplices gathered at a location in South Dallas, why they targeted Café Delicious, how th ey drove to the location in Curtis’s girlfriend’s silver Mercedes, where the indi viduals were situated within the vehicle when they arrived and when they left, what happened when they arrived at the restaurant, and where they went after leavi ng the restaurant. Detective Serra showed Abrom screenshots from the surveillance vi deos. Abrom identified some of the people in the screenshots and gave the nicknames of Third, K.D., Beamer, and Rondo. Abrom indicated that appellant put on a green face mask before entering the restaurant. While police may have men tioned to Abrom that a phone was found at the crime scene, it was Ab rom who described the phone as a flip phone. Abrom indicated that when appellant realized he had lost his phone, Cu rtis called the number to see if they could find same. Abrom ga ve Detective Serra permission to look at his phone. Detective Serra, in searchi ng Abrom’s phone, discovered calls between Curtis and Abrom on the day of the offense. After the second interview with Abrom, Detective Serra ex amined the flip phone that had been retrieved from the restaurant’s parking lot. He saw that the phone had connected with se veral phone numbers on the date of the murder,–10– including numbers associated with phone s belonging to appellant’s mother and appellant’s girlfriend. He also found te xt messages in which the phone’s owner was identified as Carrendius or K.D. and saw th at a call had been placed by Curtis’s phone to the flip phone roughly an hour after Harp was murdered, corroborating what Abrom said about Curtis calling appellant ’s phone after they left the restaurant and when appellant could not find his phone, and about a ppellant’s involvement in the robbery and murder. Appellant’s girl friend, Shaquai Johnson, called the flip phone at 10:52 a.m. and 11:55 p.m. on the da y of the offense. There were multiple missed calls on the day of the murder indicating there was no successful communication with the devi ce after the murder. A warrant issued for appe llant’s arrest. Officer Jason Kennedy executed the arrest warrant and seized a cell phone from appellant during the process. Officer Kennedy gave the cell phone to Detective Serra after transporting appellant to headquarters. An extraction of that ph one revealed it had been activated on September 26, 2019, at 2:33 p.m. The firs t calls from the new phone were made to appellant’s mother and girlfriend. At headquarters, appellant waived his ri ghts and spoke with Detective Serra. The interview was recorded. Portions of the videos of appellant’s interview with Detective Serra were played for the jury. Detective Serra indicated that appellant did not admit to his part in the capital mu rder, but he did provide some information that was helpful to the investigation in cluding the phone number for his mother,–11– which matched a number he found in the flip phone that had been left at the crime scene. Appellant did not deny that the ph one was his and inform ed Detective Serra that he does not let anyone el se use his phones, and that he is in sole possession of same. Appellant provided no explanation as to why th e phone was found in the parking lot of Café Delicious. Appellant admitted that he made money by gambling and at first denied knowing Curtis but late r admitted that he knew him. Detective Serra considered appellant’s getting money by gambling to be significant because it was one of the components th at factored into the o ffense at Café Delicious. Appellant spoke quite a bit to Detective Serra about Cur tis being fatally shot and about attending a candlelight vigil for hi m. An extraction from the phone appellant had with him at the time of his arrest in dicated appellant knew Curtis much more than he led on in his interview with Det ective Serra. An extraction of that phone revealed a video that was take n at the candlelight vigil. As part of the ongoing investigation, Detective Serra obtained the Instagram records for Moore and found a video that M oore had posted at 3: 25 p.m. on the date of the offense. The video was played fo r the jury. The video was recorded from inside a vehicle by the driver of same. The video showed a Mercedes logo on the steering wheel and the same ICN number on the vehicle’s windshield that was seen on the Mercedes in the video from the restau rant’s parking lot. The video did not show the faces of the vehicle’s occupants, but the driver was heard saying, “Man,–12– Fuck Third.” The nickname “Third” had been previously provided by Abrom to Detective Serra. At the close of evidence, the jury wa s instructed on the law of parties and the law regarding accomplice-witness testimony. The jury was instructed that Abrom was an accomplice as a matte r of law and that it could not convict appellant unless it believed Abrom’s testimony to be true, and there wa s other evidence tending to connect appellant to the capital murder. The jury found appellant guilty of capital murder, as charged in the indictment, an d the trial court assessed the mandatory punishment of confinement for life without parole in the Institution Division of the Texas Department of Criminal Justice. 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. § 12.31(b)(2).
D ISCUSSION I. Accomplice Witness Testimony In his first issue, appellant challenge s the sufficiency of the evidence to support his conviction for capital murder. In reviewing the legal sufficiency of th e evidence, we revi ew the evidence in the light most favorable to the verdict to determine whether a ra tional trier of fact could have found the essential elemen ts of the crime beyond a reasonable doubt. Salinas v. State , 163 S.W.3d 734, 737 (Tex. Crim . App. 2005). This is a highly deferential standard, as it is the res ponsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh ev idence, and to draw inferences from basic–13– facts to ultimate conclusions. Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The State must prove (1) the offense was committed, and (2 ) the accused was the person who either committed or participated in the crime. Johnson v. State , 673 S.W.2d 190, 197 (Tex. Crim. App. 1984). Mere presence alone is not enough. Id. The standard of review for circumstantial- evidence cases on app eal is the same as for direct-evidence cases. Alexander v. State , 740 S.W.2d 749, 757 (Tex. Crim. App. 1987). In reviewing the sufficiency of the evidence to support a conviction based on circumstantial evidence, the evidence is viewed in the light most favorable to the verdict. Flournoy v. State , 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). In a circumstantial eviden ce case, the State is not requi red to exclude every hypothesis that the criminal act may have been committed by a nother person. Brandley v. State , 691 S.W.2d 699, 703 (Tex. Crim. App. 1985 ). The State mu st exclude every reasonable hypothesis raised by the evidence that tends to exculp ate the accused. Id. Appellant concedes that the State’ s evidence shows appellant may have committed the offense, but he contends that his presence near the scene is insufficient to support his conviction. Ap pellant contends it wa s never established when his phone was left at the crime scene and claims, because th e evidence showed he had been to Café Delicious to gamble pr ior to the offense, he could have dropped the phone on a previous occasion. Appella nt urges there was no physical evidence that tied him to the crime scene. He claims because the onl y DNA evidence that–14– came back with certainty was that DNA of a hair taken from th e green mask matched Abrom and no weapons or am munition were found in the Mercedes and no firearm was recovered that matched the shell casings found at the scene, the evidence is legally insufficient to support his conviction. Contrary to appellant’s contentions, the State presented evidence that the flip phone was dropped at the scene of the crime after the Mercedes arrived and before it left and that the phone wa s dropped on the driver’s side of the vehicle, the side where the video showed the individual wear ing the green mask sat when they arrived and when they left. In addition, DNA evid ence is not required to obtain a conviction. Our law relating to the sufficiency of evid ence necessary to identify those criminally charged is demanding of certainty withou t limiting the state to specific forms or types of evidence. See, e.g. , g., Pena v. State , 441 S.W.3d 635, 641 (Tex. App.— Houston [1st Dist.] 2014, pet. ref’d ) (noting that DNA evidence was not required); see also Williams v. State , 196 S.W.3d 365, 369 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (affirming ro bbery conviction on sufficiency challenge where there was eviden ce available to support jury’s finding, but no DNA evidence, no fingerprint evidence; no other witnesses (beside the complainant) to the robbery; no line-up performed; and where it was dark at the time of the robbery, likely limiting visibility of complainant); see also Harmon v. State , 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (“A rational jury could have found appellant guilty of aggravated r obbery without DNA evidence, fingerprint–15– evidence, or evidence of the gun or cash Newby gave to appellant”). Thus, the fact that the State did not recover the murder weapon and had little in the way of DNA evidence is not dispositive of the issue of whether the evidence is sufficient to support appellant’s conviction. 3 We next address appella nt’s contention the State failed to corroborate Abrom’s accomplice-witness testimony. An accomplice is someone who participates with the defenda nt before, during, or after the commission of an offense and acts with the required culpable mental state. See Druery v. State , 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). A convi ction may not be ba sed on the testimony of an accomplice witness unless the accomp lice-witness testimony is corroborated by other evidence “tending to connect” the defendant to the offense. See T EX

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. art. 38.14. The test to apply in determining su fficiency of the corroboration is to eliminate from consideration the testimo ny of the accomplice witness and then examine the testimony of the other witnesse s to ascertain if there is inculpatory evidence which tends to connect the accused with the commission of the offense. Cruz v. State, 690 S.W.2d 246, 250 (Tex. Crim. App. 1985). This test does

3 The forensic examiner with the DNA casework unit at the FBI Laboratory testified that the mitochondrial DNA analysis of one of the hairs extr acted from the green mask revealed the sequence obtained from the hair was the same as that obtained from Abrom. Thus, Abrom could not be excluded as a possible contributor to that hair. In addition, sh e established that no more than 48.93 percent of African Americans would also be expected to match the small area of mitochondrial DNA obtained from the hair. Appellant could not be included or excluded as a match to the hair.–16– not require, however, that the corroborati on directly link the defendant with the crime or that it be sufficient in itself to establish guilt. Richardson v. State , 700 S.W.2d 591, 594 (Tex. Crim .App. 1985); Davis v. State , 68 S.W.3d 273, 281 (Tex. App.—Dallas 2002, pet. ref’d). “Instead, any independent evidence verifying the accomplice’s version as opposed to the defenda nt’s version is corroborative, even if it only relates to a mere de tail as opposed to a substa ntive connection between the defendant and the offense.” Davis , 68 S.W.3d at 281. Furthermore, while presence alone is insufficient to corroborate an accomplice’s testimony, presence coupled with other suspicious circumstances ma y constitute sufficient corroboration. Id. at 281–82 (citing Trevino v. State , 991 S.W.2d 849, 851 (Tex . Crim. App. 1999)). The surveillance videos from the restaura nt showed that five men arrived at the restaurant in a Mercedes that had an ICN number on its windshield. One man remained in the vehi cle, after entering the restaurant and buying a soft drink, while the other four entered the restaurant carry ing firearms. The mu rder occurred when a man wearing a green mask approached Ha rp, as Harp walked with a gun pointed at his back and his hands in the air, and shot him. The men then ran back to the Mercedes and left the scene. The question presented at trial was wh ether appellant was one of the men depicted in the surveillance videos and the man who shot Harp. To corroborate Abrom’s testimony concerning what transp ired the day of the murder and to appellant’s involvement, the State pr esented independent evidence through–17– surveillance videos, Moore’s Instagram pos ting on the day of the murder, and the testimony of Detective Serra and Officer Gronau that the vehicle involved in the offense was a silver Mercedes belonging to Curtis’s girl friend and that a black face mask, a green Ninja Turtle mask, and an id entification card bearing the name of Eric Curtis were recovered from the vehicle on the evening of the offense after Officer Gronau and his partner conducted a tra ffic stop. Through phones and phone call records, the State established appellant a nd Abrom had been in contact with Curtis the morning of the offense, thus connecti ng them to Curtis and the Mercedes. Detective Serra recovered a flip phone from the parking lot of Café Delicious. The surveillance video of the parking lo t shows the phone app eared at the scene some time after the Mercedes arrived and be fore it left and that the phone was located in between the spot where the Mercedes ha d been parked and a nother vehicle. The phone was on the driver’s side of the Mer cedes and no one else entered the space between the vehicles during the commission of the offense. A search of the flip phone tied the phone to appellant as it had connected to phone numbers belonging to appellant’s mother and appellant’s girl friend and contained text messages that identified the owner of the phone as Carre ndius and K.D. Appellant’s jail book-in records, which were admitted into evid ence, further confirmed the phone number associated with appellant’s mother. In a ddition, the evidence showed Curtis’s phone called the flip phone about an hour after th e murder occurred, corroborating Abrom’s testimony appellant lost his phone the day of the murder, they searched for same,–18– and Curtis called the phone in an effort to locate same. In addition, the evidence showed that during appellant’s interview w ith Detective Serra he gave the detective his mother’s phone number, which matched a number in the flip phone. Appellant did not deny the phone was his and insisted that he does not allow anyone else to use his phones and that he maintains sole possession of same. The evidence further established appellant had a different phone with him when he was arrested and the data extraction from that phone showed it as activated the day after the murder and the day after the flip phone was left at the cr ime scene. The surveillance video from inside the restaurant showed the individual who shot Harp wore a green mask. The surve illance video of the parking lot showed the person wearing the green mask exited the ve hicle from the driver’s seat and when he returned, he got into the back seat behi nd the driver. Thus, the shooter was always on the side of the vehicle where appella nt’s flip phone was found. The video surveillance further showed the only other individual exiting and entering the vehicle from the driver’s side of the car was the individual identified as Moore and he was not one of the individuals who went inside the restaurant when Harp was shot and killed. The surveillance vide o further showed the face of the individual identified as Moore as he entered the restaurant to “scope it out” and that individual was not appellant. The State also presented evidence appellant admitte d that he made money gambling and the State established throu gh a cook from the restaurant that Harp–19– allowed drug sales and gambling at the rest aurant because Harp needed money to pay bills. This evidence tied appellant to the restaurant and corroborated Abrom’s testimony appellant wore a mask to hide his identify beca use people at the restaurant knew him. Moreover, the surveillance video of the parking lot corroborated Abrom’s account of where the individuals were loca ted in the vehicle and who went into the

restaurant. After eliminating from consideration Abrom’s testimony, and considering the surveillance videos; information Detective Serra was able to extract from the flip phone that was retrieved from the crime s cene and confirmed by appellant’s jail book-in records, tying the phone to appe llant; the extraction of the cell phone appellant had with him when he was arrested, which had b een activated the day after the murder and contained a video of Curtis ’s candlelight vigil; appellant’s interview with Detective Serra; testimony concerning law enforcement’s investigation of the offense; and the Instagram video posted on Moore’s account, we conclude the noncorroborating witness evidence tended to c onnect appellant with the commission of the offense and verified Abrom’s version of the events that occurred the day of the murder. Because sufficient evidence co rroborated Abrom’s testimony appellant was involved in the robbery and murder of Harp , we overrule appellant’s first issue.–20– II. Extraneous-Offense Evidence In his second and third issues , appellant asserts the tria l court erred in allowing the State to present evidence of an extraneous offense that occurred the day before the offense at issue here because it was not relevant or, if relevant, it was unduly prejudicial. See T EX

. R. E VID . 404(b) (evidence of an ex traneous offense may be admitted if relevant apart from tendency to prove the character of a person in order to show person acted in conformity ther ewith), 403 (evidence that is otherwise relevant may be excluded “i f its probative value is subs tantially outweighed by the danger of unfair prejudice, confusion of th e issues, or misleading the jury, or by considerations of undue delay, or needle ss presentation of cumulative evidence.”). In his sixth issue, appellant asserts the tria l court erred in denying his request to strike from the record any evidence of the extraneous offense that the State introduced through Sergeant Casey Torrey because the State failed to subsequently demonstrate, as it indicated it would, throu gh Detective Serra, the re levance of same. The night before Harp was murdered , Sergeant Torrey of the Dallas City Marshal’s Office, while in a marked squad car, attemp ted to conduct a traffic stop of appellant’s black Cadillac XTS in what was considered to be a high-drug-traffic area after he observed the le ft front headlight to be out , and appellant and another individual reportedly abandoned the vehicle and fled on foot, leaving behind three cell phones and a debit card bearing appellant’s name. The officer ran the vehicle’s license plate and found the vehicle was registered to appellant.–21– The trial court held a hearing before swearing in the jury during which the State informed the court of its intent to in troduce evidence of this extraneous offense of evading arrest or detention for the purpose of establishing identity and to corroborate Abrom’s testimony that appella nt drove a black Cadillac and had fled from the law a day or two before Harp wa s murdered. Appellant objected to the introduction of this evidence on the grounds of relevance and unfair prejudice. The trial court overruled appellant’s objecti ons and indicated that it would “allow testimony due to corroboration of accomplice testimony.” When the State sought to introduce evidence of the ex traneous offense during its examination of Sergeant Torrey, appellant renewed his relevance objection. In re sponse, the State indicated that it would establish the relevancy of the evidence through Detective Serra, who had not yet testified. The trial court ag ain overrule appellant’s objection. After Detective Serra testified, a ppellant moved to strike the evidence of the extraneous offense urging the State had failed to es tablish the relevance of same through Detective Serra as promised. The trial court denied appellant’s motion to strike. We review a trial court’s decision to admit extraneous offense evidence under an abuse of discretion standard. Prible v. State , 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A court abuses its discretion when its decision is so clearly wrong that it lies beyond the zone within which r easonable persons might disagree. Rachal v. State , 917 S.W.2d 799, 807 (Tex. Crim. App. 1996).–22– Rule 404(b) of the Texas Rules of Evid ence prohibits admitting extraneous offense evidence to prove a defendant acted in conformity with his character on a given occasion. T EX

. R. E VID . 404(b). Evidence of extr aneous offenses, however, may be admitted to show “motive, opportunity, intent , plan, knowledge, identity, absence of mistake, or lack of accident.” Id. And evidence of extraneous acts may also be admitted to rebut defensive theories. Lane v. State , 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). When faced with an objection under rule 404(b), the proponent of the evidence must demonstrate to the trial c ourt that the evidence has relevance apart from its value to show character conformity. Santellan v. State , 939 S.W.2d 155, 168 (Tex. Crim. App. 1997). Evidence is re levant if it has “any tendency to make the existence of any fact that is of cons equence to the determination of the action more probable or less probable than it would be without the evidence.” T EX

. R. E VID . 401. We will find a trial court’s ruling on the admissibility of evidence to be reversible error only where the court abused its discre tion and appellant has been harmed. Solomon v. State , 49 S.W.3d 356, 365 (Tex . Crim. App. 2001); see also T EX

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. P. 44.2(b). To convict appellant of capital murder as charged by the indictment, the State had to prove, and the jury had to find he intentionally committed the murder in the course of committing or attemp ting to commit a robbery. P ENAL § 19.03(a)(2). When identity is an issue in the case, an extraneous offense may be admissible to–23– show identity. Lane , 933 S.W.2d at 519; Carter v. State , 145 S.W.3d 702, 709 (Tex. App.—Dallas 2004, pet. ref’d). In order to be admissible, a two-part test must be satisfied. First, identity must be a contes ted issue in the case, and second, something unique must exist that connects the extrane ous offense to the charged offense—some distinguish characteristic common to both the extraneous offense and the offense charged. Siqueiros v. State , 685 S.W.2d 68, 71 (Tex. Crim . App. 1985). A defense strategy aimed at challenging the State’s proof of identity raises the issue of identity. Id. In this case, while identity was a contes ted issue, the extraneous offense was completely different from the offense charged and, thus, did not satisfy the second prong of the test for the admissibility of extraneous offense evidence. We should not engraft exceptions to rule 404 that w ould allow extraneous offenses to be admitted when identity is an issue absent a direct connection between the charged and the extraneous offense. Carter , 145 S.W.3d at 710. As a result, we conclude the evidence was not properly admitted unde r rule 404(b) to prove identity or to corroborate Abrom’s identification of appe llant as being involved in the charged offense and the trial court abused its discretion by admitting same. Having determined that the evidence of the extraneous offense was erroneously admitted, we must now decide whether the admission of this evidence was so harmful to appellant as to require a new trial. Here, the complained of error is not of constitutional dimension. Id. “Any [non-constitutional] error, defect,–24– irregularity, or variance [in a criminal case ] that does not affect substantial rights must be disregarded.” T EX

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. P. 44.2(b). Thus, we must disregard the error if it did not affect appellant’s substantial rights. Id. “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” Morales v. State , 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). However, “[a] criminal c onviction should not be overtu rned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the ju ry, or had but a slight effect.” Id. In assessing the likelihood that the jury ’s decision was adversely affected by the error, we consider the entire record, including any testimony or physical evidence admitted for the jury’s consideration, th e nature of the evidence supporting the verdict, the character of the alleged er ror, and how it might be considered in connection with other evidence in the case. Id. In addition, the weight of evidence of the defendant’s guilt is also relevant in conducting the harm analysis under rule 44.2(b). Neal v. State , 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); Motilla v. State , 78 S.W.3d 352, 356–57 (Tex . Crim. App. 2002). And we may consider the closing statements and voir dire, jury inst ructions, the State’s theory, any defensive theories, and whether the State emphasized the alleged error. Motilla , 78 S.W.3d at 355–56; Morales , 32 S.W.3d at 867. With respect to the magnitude of th e harm resulting from the erroneous admission of the complained of evidence, appellant doe s not identify any specific–25– harm that resulted from Sergeant Torrey’s testimony about appella nt evading arrest the evening prior to the murder of Harp, rath er he simply states, “The error was such that it denied Appellant due process a fair trial and was harmful as it placed evidence of bad character before the jury in a wa y that was wholly impermissible with the intent to prejudice Appellant before the jury which was to deny him a fair trial.” As we indicated in resolving appellant ’s first issue, the State introduced evidence corroborating Abrom’s testimony w ith respect to the charged offense and the evidence of appellant’s guilt on the cap ital murder charge wa s substantial. In addition to the substantial evidence of a ppellant’s guilt of the capital murder, the record shows that the testimony regarding the extraneous offense consumed a minute portion of the State’s case and neither side mentioned the extraneous offense during closing arguments. See, e.g. , Smith v. State , No. 06-21-00087-CR, 2022 WL 2027006, at *9 (Tex. App.—Texarkana June 7, 2022, no pet.) (mem. op., not designated for publication) (holding th e admission of the extraneous-offense evidence was harmless becaus e, among other reasons, the extraneous offense was “barely a part of the trial,” and the State di d not mention it during closing arguments). We conclude the admission of the extr aneous offense evidence likely did not influence the jury or had but a slight eff ect. Accordingly, we overrule appellant’s second, third, and sixth issues.–26– III. Jail Records In his fourth issue, appellant argues the trial court erre d in overruling his objection to State Exhibits 168, 169, a nd 170. State Exhibit 168 is a copy of appellant’s AIS (Adult Identification Syst em) book-in dated Oct ober 1, 2019. The exhibit, as introduced into evidence, cont ained basic information such as appellant’s date of birth, height, weight, last know n address, and emerge ncy contact and phone number. State Exhibits 169 and 170 were spread sheet s of jail phone call records showing the date, time, and duration of ca lls associated with appellant’s personal identification number and the phone number identified on the AIS as belonging to appellant’s emergency contac t, his mother, and calls to the phone number associated with appellant’s girlfriend. The calls were placed between October 7, 2019, and November 5, 2019. Appellant objected to these exhibits on the grounds that they reminded the jury that he was incarce rated for about a one -month period. On appeal, appellant contends this ev idence was prejudicial and inadmissible under Texas Rule of Evidence 403. Preservation of error is governed by Rule 33.1 of the Texas Rules of Appellate Procedure, which provides that, to preserve error, a complaint must be “made to the trial c ourt by a timely request, objection, or motion that ... state[s] the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to ma ke the trial court aware of the complaint, unless the specific grounds were apparent from the context.” T EX

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. P. 33.1(a)(1)(A). Regarding its specificity, the objection mu st simply be clear enough–27– to provide the judge and the opposing part y an opportunity to address and, if necessary, correct the purported error. Ford v. State , 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). No “magic words” are required. Id. An objection is considered in the context in which the complain t was made and the parties’ shared understanding of the complaint at that time. Lankston v. State , 827 S.W.2d 907, 911 (Tex. Crim. App. 1992). Assuming, without deciding, appellant’s objection at trial was sufficient to preserve his rule 403 complaint, we c onclude the trial court did not abuse its discretion in admitting the complained of exhibits. Rule 403 states that evidence that is re levant may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See T EX

. R. E VID . 403. “Unfair prejudice refers not to an adverse or detrimental effect of evidence but to an undue tendency to s uggest a decision on an improper basis, commonly an emotional one.” Casey v. State , 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). The State introduced Stat e Exhibits 168, 169 and 170 through Raul Obregon, a criminal investigator for the Dallas County District Attorney’s office, who testified that as part of his duties as an investigator he pulls jail calls. He testified he pulled the jail calls associated w ith appellant and he identifi ed the phone numbers on State Exhibits 169 and 170 as bel onging to appellant’s mother a nd girlfriend. Appellant’s counsel did not cross examine Obregon. Appe llant contends that this evidence “was–28– clearly calculated to inflame the minds of the jury that it would be impossible to remove the harmful impression from their minds that it denied appellant’s right to a fair trial.” Prior to the offer of State Exhibits 168, 169 and 170, Offi cer Kennedy testified that he arrested appellant on the morning of October 1, 2019, the date listed on the AIS sheet. Officer Kennedy tes tified that he transported a ppellant to headquarters. From this testimony, the jury c ould have inferred a ppellant went to jail at that time. The jail call logs identify a relatively s hort period of time during which appellant was making calls from the jail. We conclude appellant he has failed to establish the introduction of this evidence had an un due tendency to suggest a decision on an improper basis. We overrule a ppellant’s fourth issue. IV. Instagram Video In his fifth issue, appellant urges the tr ial court erred when it allowed the State to present the eight-second video posted on Moore’s Instagram account on the day of the offense. Appellant contends that doi ng so deprived him of his right to confront the witness and claims the video was not releva nt to this case. The specific exhibits about which appellant complains are Stat e Exhibits 190, 203, and 204, which were introduced during the State’s examination of Detective Serra. Appellant objected to this evidence as hearsay and viola tive of the confrontation clause. State Exhibit 190, the video from Mo ore’s Instagram account, shows an individual driving a vehicle with a Merced es Benz logo on the steering wheel and a–29– location number 84-10 on the windshield matching the CIN number shown on the suspect vehicle in the surveillance video. The State urged that this CIN number kicked off the investigation that ultimately led to the arrest of appellant. The State indicated that it was offering this evid ence to corroborate Abrom’s testimony about the group traveling in a Mercedes be longing to Curtis’ girlfriend and his identification of Moore as the getaway driv er and for the additional purpose of that the clip references the unnamed individual known as “Third.” The State offered Exhibits 203 and 204, Meta Platforms Business Records for the Instagram account, to establish the date the vi deo was posted and to identif y Moore as the individual associated with the account and the post. The Confrontation Clause guarantees a criminal defendant the right to be confronted with the witnesses against him. U.S. C ONST . amend. VI; Garcia v. State , 149 S.W.3d 135, 140 (Tex. Crim. App. 2004) . The Confrontation Clause prohibits the admission of testimonial hearsay agai nst a defendant unless the declarant was unavailable, and the defenda nt had a prior opportunity to cross-examine the declarant. Crawford v. Washington , 541 U.S. 31, 68 (2004); De La Paz v. State , 273 S.W.3d 671, 680 (Tex. Crim. A pp. 2008). “[A] hearsay statement is testimonial when the surrounding circumstances objectiv ely indicate that the primary reason the statement was made was to esta blish or prove past events potentially relevant to later criminal prosecution.” Walter v. State , 581 S.W.3d 957, 981 (Tex. App.—Eastland 2019, pet. ref’d). Hearsay is a statement, other than one made by the declarant while–30– testifying at trial, offered in evidence to prove the truth of the matter asserted. T EX

. R. E VID . 801(d). A statement is an oral or written expression, or nonverbal conduct that a person intended as a substitute for verbal expression. T EX

. R. E VID . 801(a). The video in State Exhibit 190 is eight s econds in length, and some discernible voices are detected in the b ackground. The State did not offer the video to prove the truth of any statements that might have been discernible. The State offered the video to show that Moore was behind the wheel of the Mercedes with his accomplices on the date of the murder corroborating Abro m’s testimony on the matter. Therefore, the hearsay rule did not preclude its ad mission. Accordingly, the admission of Exhibit 190 did not violate the Confrontati on Clause. With respect to Exhibits 203 and 204, appellant’s complain ts urging the date and time the video was posted does not conclusively establish that the video itself was recorded on that date or that Moore actually posted the video, go to the weight of same, and not their admissibility. We overrule appellant’s sixth issue. V. Jury Argument In his seventh issue, appe llant contends the trial c ourt erred in overruling his objection to the prosecutor’s jury argument that appellant was not going to own up and admit it. Appellant contends that this statement amounted to a comment on appellant’s failure to testify that impede d his Fifth Amendment right. We disagree. We review a trial court’s ruling on an objection to jury argument for an abuse of discretion. Milton v. State , 572 S.W.3d 234, 241 (Tex. Cr im. App. 2019). A trial–31– court abuses its discretion when its ruli ng falls outside the zone of reasonable disagreement. Gonzalez v. State , 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). There are four proper areas of jury argument: (1) su mmation of the evidence; (2) a reasonable deduction drawn from that evidence; (3) an answer to opposing counsel’s argument; and (4) a plea for law enforcement. See Milton , 572 S.W.3d at 239. A comment on a defendant’s failure to testify violates both the state and federal constitutions as well as Texas statutory law. See U.S. Const. amend. V; T EX

. C ONST

. art. I, § 10; C ODE C RIM

. P ROC . art. 38.08; Randolph v. State , 353 S.W.3d 887, 891 (Tex. Crim. App. 2011). To rise to the le vel of such violation, the comment must clearly refer to the accused’s failure to tes tify, and it is not sufficient if it might be construed as an implied or indirect allusion. Canales v. State , 98 S.W.3d 690, 695 (Tex. Crim. App. 2003). Th e test is whether the langua ge used was manifestly intended or was of such character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. Id. The comment appellant refers to was made by the prosecutor toward the end of the State’s opening closing argument a nd while he discusse d Detective Serra’s interview of appellant: Detective Serra, who did a fantastic job, I believe, interviewing [appellant], he was never going to adm it it. Because it was days after, he knew what was comi ng, and he knew - - Defense counsel interrupted at that time stating, “Your Honor, I am going to object. It impedes upon the defendant’s Fifth Amendm ent right not to testify.” The trial–32– court overruled the objection. The prosecutor then continued, He knew what was coming, because he left his phone at the scene. If his story make[s] sense. Did he own up to anything, the gun in the house. He blamed it on the dog. Did he say his nickname? He does not own anything and he is not going to give anything up to Detective Serra, no matter how long, even if they were still in there sitting today. The comment about which appellant comp lains clearly referred to appellant’s unwillingness to cooperate and provide informa tion to Detective Serra. It was not a comment on his failure to testify at trial. The prosecutor’s comment was not of such a character that the jury would necessarily and naturally take it as a comment on appellant’s failure to testify. Accordingly, the trial cour t did not abuse its discretion in overruling appellant’s Fifth Amendmen t objection. We ove rrule appellant’s seventh issue. VI. Jury Charge A. Lesser Included Offense In his eighth issue, appellant asserts th e trial court erred in denying his request to instruct the jury on the lesser-inclu ded offense of felony murder. Appellant contends he was entitled to the instructio n because a jury could have found he did not have the specific intent to shoot and kill Harp. To determine whether a defendant is entitled to an instruction on a lesserincluded offense, a two-step test applies. Hall v. State , 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). The first step is to de termine whether the offense is actually a lesser-included offense of the offense charged. Id. Felony murder is a lesser-–33– included offense of capital murder. See Fuentes v. State , 991 S.W.2d 267, 272 (Tex. Crim. App. 1999); see also P ENAL §§ 19.02(b)(3) & 19.03(a)(2). Accordingly, the first prong of the test is satisfied. The second step of the test requires that the record contain some evidence that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Hall , 225 S.W.3d at 536. The evidence must establish the lesser-included of fense as “a valid rational alternative to the charged offense.” Segundo v. State , 270 S.W.3d 79, 91 (Tex. Crim. App. 2008); see also Rice v. State , 333 S.W.3d 140, 146 (Tex. Crim. App. 2011). We review all of the evidence presented at trial. Hayward v. State , 158 S.W.3d 476, 478–79 (Tex. Crim. App. 2005). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Goad v. State , 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). In determining whether the eviden ce raises the requested lesser-included offense, we do not consider the credibility of the evidence or whether it conflicts with other evidence. Saunders v. State , 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). A person commits capital murder if the person intentionally causes the death of an individual while in the course of committing or attempting to commit certain enumerated felonies, in this case robbery. P ENAL § 19.03(a)(2); Johnson v. State , 853 S.W.2d 527, 535 (Tex. Crim. App. 1993). A person commits felony murder if the person:–34– commits or attempts to commit a fe lony, other than manslaughter, and in the course of or in furtherance of the commission or attempt, or in immediate flight from the commissi on or attempt, the person commits or attempts to commit an act clearl y dangerous to human life that causes the death of an individual. P ENAL § 19.02(b)(3); Murphy v. State , 665 S.W.2d 116, 119 (Tex. Crim. App. 1983). The difference between capital murder and felony murder is that capital murder requires the specific intent to kill, and fe lony murder requires only the intent to commit the underlying felony. See Fuentes , 991 S.W.2d at 272 (“The distinguishing element between felony murder and capita l murder is the intent to kill.”); Santana v. State , 714 S.W.2d 1, 9 (Tex. Cr im. App. 1986) (“The only difference in the two offenses is the culpable mental state. In capital murder, there must be an intent to kill, while in the felony murder, there must only be an intent to commit the underlying offense, in this case robbery.”); see also Threadgill v. State , 146 S.W.3d 654, 665 (Tex. Crim. App. 2004) (felony murder is an unintentional murder committed in the course of a felony). As a result, in order for a ppellant to be entitled to a felony-murder instruction, the record must contain some evidence that would permit a rational jury to find appellant intended to commit a robbery but unintentionally caused Harp’s death by committing an act clearly dangerous to human life. See Fuentes , 991 S.W.2d at 272; Taylor v. State , No. 05-12-00540-CR, 2013 WL 4081422, at *12 (Tex . App.—Dallas Aug. 13, 2013, pet. ref’d). During the jury charge conference, a ppellant urged that a lesser-included instruction should be given because (unspe cified) statements made by the detective–35– in his interview with appella nt and an interpretation of the surveillance video that shows appellant behind the counter could lead a jury to find appellant did not have the specific intent to shoot and kill Harp. The trial cour t denied appellant’s request noting, “Court is of the opinion that ther e wasn’t any evidence of the lesser included, primarily because based on the ta pe, [appellant] admitted that he did not know anything about the offense, wasn’t there, so I am going to deny that request.” The evidence at trial showed appellant and his accomplices drove to Café Delicious with the intent to commit a robbery. Appellant and three of his accomplices entered the restaurant carryi ng firearms. The surveillance video of the shooting, along with Abrom’s testimony, showed Harp was walking with both hands in the air and a gun to his back when Harp was shot point blank. One of the bullets hit Harp on the left side of his chest and caused his death. These facts establish appellant acted inte ntionally when he shot and killed Harp. The evidence in the record concerning appellant’s intent at the time of the shooting does not accord with robbery alone. Taylor , 2013 WL 4081422, at *12. Given the evidence in this case, a rational jury could not have concluded that, at the time of the shooting, appellant intended onl y to rob, and not kill, Harp . Accordingly, appellant has not satisfied the second prong of the Hall test, and the trial court did not err in denying his request for a jury instruction on the lesser-included offense of felony murder. We overrule appe llant’s eighth issue.–36– B. Reasonable Doubt In his final issue, appellant claims the trial court erre d in overruling his objection to the jury charge including wh at he characterizes as a definition of reasonable doubt. The complained of language, which wa s included in the “Presumptions and Burden of Proof” portion of the jury charge, is as follows: It is not required that the State prove the defendant’s guilt beyond all possible doubt; it is required that the State’s proof excludes all “reasonable doubt” concerning the defendant’s guilt. Appellant contends that this phra se is a prohibited definition under Paulson v. State , 28 S.W.3d 570 (Tex. Crim. App. 2000). We disagree. Appellate review of an alleged error in the jury charge involves two steps. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). The first step is to determine if the ju ry charge was erroneous. Cortez v. State , 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If erroneous, the next step is to determine whet her the error caused sufficient harm to warrant reversal. Ngo v. State , 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). As an initial matter we note that Paulson did not involve the particular instruction about which appellant complains here. And, in Woods v. State , the Texas Court of Criminal Appeals c onsidered a charge that in cluded essentially the same instruction that is at issue he re and held it did not violate Paulson because the charge did not include the definitions criticized by the court in Paulson

. Woods v. State ,–37– 152 S.W.3d 105, 115 (Tex. Crim. App. 2004) (considering the instruction, “It is not required that the prosecution prove guilt be yond all possible doubt; it is required that the prosecution’s proof excludes all ‘r easonable doubt’ concerning the defendant’s guilt”); see also Mays v. State , 318 S.W.3d 368, 389 (Tex. Crim. App. 2010) (reaffirming holding in Woods ). This Court has considered this instruction as well and has held that it does not violate Paulson because it does not define “reasonable doubt.” See, e.g. , Bullock v. State , 673 S.W.3d 758, 767–68 (Tex. App.—Dallas 2023, no pet.); Thomas v. State , No. 05-19-00347-CR, 2020 WL 2988639, at *7 (Tex. App.—Dallas June 4, 2020, pet. ref’d) (mem . op., not designated for publication); McDaniel v. State , No. 05-15-01086-CR, 2016 WL 7473902, at *6–7 (Tex. App.—Dallas Dec. 29, 2016, pet. ref’d) (mem. op., not designated for publication); O’Canas v. State , 140 S.W.3d 695, 702 (Tex. App.—Dallas 2003, pet. ref’d). Accordingly, we c onclude that the specific language about which appellant complains did not define reasonable doubt and thus, its inclusion in the jury charge is not error. See O’Canas , 140 S.W.3d at 701–02. We ove rrule appellant’s ninth issue. VII. Modification of Judgment By cross issue, the State urges the se ntence listed in the judgment should be modified to correctly reflect that appellant was sentenced to “ life without parole,” instead of “life.” The record reflects th at the judge pronounced appellant’s sentence as “life without parole,” but the judgment re flects appellant was se ntenced to “life.”–38– A person convicted of a capital felony in a case where the State does not seek the death penalty shall be imprisoned for life without parole if the person who committed the offense is eighteen years of age or older. P ENAL §§ 12.31(b)(2); 19.03(b). Here, the State did not seek th e death penalty, and appellant was thirtyone years old when he committed the offe nse. Thus, appellant’s sentence is imprisonment for life without parole. This Court has jurisdiction to r ectify an error in sentencing. Mizell v. State, 119 S.W.3d 804, 805–806 (Tex. Crim. App. 2003). And Texas Rule of Appellate Procedure 43.2 allows this Court to modify the trial court’s judgment and affirm it as modified. T EX

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. P. 43.2. We sustain the State’s cross issue and modify the judgment to reflect a sentence of life imprisonment without parole. T EX

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. P. 43.2(b); French v. State , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). C ONCLUSION We affirm the judgment as modified.

Do Not Publish Tex. R. App. P. 47 221119F.U05 /Nanc y Kenned y/ NANCY KENNEDY JUSTICE–39– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT CARRENDIUS WALKER, Appellant No. 05-22-01119-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court, Dallas County, Texas Trial Court Cause No. F19-76545. Opinion delivered by Justice Kennedy. Justices Garcia and Breedlove participating. Based on the Court’s opinion of this da te, the judgment of the trial court is MODIFIED as follows: to reflect appellant’s sentence is life imprisonment without parole. As REFORMED , the judgment is AFFIRMED

. Judgment entered this 27t h day of March, 2024.