NUMBER 13-10-00163-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

DESREL RAY LINDEN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the Criminal District Court

of Jefferson County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Justice Benavides

Appellant, Desrel Ray Linden, was convicted by a jury of murder, a 

second-degree felony, 1and sentenced to fifteen years‘ confinement in the Texas 

Department of Criminal Justice—Institutional Division. See TEX. PENAL CODE ANN.

 

1

 The charge was lowered to a second-degree felony upon the jury‘s determination that the 

offense was committed ―under the immediate influence of sudden passion arising from an adequate cause.‖ 

See TEX. PENAL CODE ANN. § 19.02(c), (d) (West 2003).
2

§ 19.02(b)(1) (West 2003), § 12.32 (West Supp. 2010). By five issues, Linden 

contends that the trial court erred by (1) failing to properly instruct the jury on his 

affirmative defense of self-defense; (2) giving improper definitions in the jury charge for 

the mental state required for the indicted offense; and that (3)-(5) the evidence was 

legally and factually insufficient to support the verdict. We affirm.

I. BACKGROUND2

On May 17, 2007, Linden and his friend, Curley Sinegal, Jr., were traveling 

between landscape maintenance jobs when Linden stopped his truck for gas in Port 

Arthur, Texas. At the same time, Peter Tran and his niece, Phuong Tran, pulled up to 

an adjacent gas pump in Phuong‘s car. The testimony conflicted as to what was said 

between the two parties: Phuong testified that Linden asked her if she ―wanted to go 

home with him‖ and that Linden was confrontational with Peter, asking him ―What are 

you looking at?‖ and making derogatory comments about Peter‘s mother; Sinegal and 

Linden testified that no such comments were made to Phuong or to Peter. At this time, 

Linden and Peter began to yell at one another. When Peter and Phuong began to leave 

the gas station, Peter threw light bulbs at Linden‘s truck. Phuong made a u-turn out of 

the gas station, and Peter then yelled further obscenities at Linden and Sinegal. 

Phuong dropped Peter off at another vehicle belonging to Peter‘s girlfriend that was 

parked across the street. Phuong was not further involved in the encounter. 

According to defense testimony, Peter began to follow Linden and Sinegal down the 

street, and when Peter rolled down his window, he continued to yell and made 

 

2

 This case is before this Court on transfer from the Court of Appeals for the Ninth Judicial District

in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN.

§ 73.001 (West 2005).
3

movements as though he was pulling a weapon from between his driver‘s seat and car 

door. In response, Linden drew a gun and fired four shots at Peter, emptying his gun; 

one shot hit Peter in the back of the head and a second shot hit Peter in the neck. Peter 

crashed his vehicle and died from his injuries. Linden remained at the scene, called 

911, and told the responding detective what had transpired. No gun was found in 

Peter‘s vehicle, but a tire iron was found between the driver‘s seat and door.

II. DISCUSSION

A. Sufficiency of the Evidence

By his third, fourth and fifth issues, Linden contends that the evidence was legally 

and factually insufficient to support the verdict. Specifically, he contends that the 

evidence was insufficient to support findings that he acted ―intentionally‖ or ―knowingly‖ 

in causing the death of Peter Tran.

1. Standard of Review

The Texas Court of Criminal Appeals has held that our only sufficiency review 

should be under ―a rigorous and proper application‖ of the Jackson standard of review, 

and therefore, we apply only that standard as argued in Linden‘s legal sufficiency 

arguments. See Brooks v. State, 323 S.W.3d 893, 906 (Tex. Crim. App. 2010). Under 

this standard, ―the relevant question is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.‖ Jackson v. Virginia, 443 U.S. 307, 

319 (1979); see Brooks, 323 S.W.3d at 902 n.19. ―[T]he fact-finder‘s role as weigher of 

the evidence is preserved through a legal conclusion that upon judicial review all of the 

evidence is to be considered in the light most favorable to the prosecution.‖ Jackson, 
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443 U.S. at 319 (emphasis in original); see TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 

1979) (―The jury, in all cases, is the exclusive judge of facts proved, and the weight to be 

given to the testimony . . . .‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 

2000) (―The jury is the exclusive judge of the credibility of witnesses and of the weight to 

be given testimony, and it is also the exclusive province of the jury to reconcile conflicts 

in the evidence.‖).

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

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. 

App. 1997). Under a hypothetically correct jury charge, the State was required to prove 

beyond a reasonable doubt that Linden: (1) intentionally or knowingly (2) caused the 

death of Peter Tran. See TEX. PENAL CODE ANN. § 19.02(b)(1). 

A defendant‘s intent may be inferred from his words, acts, and conduct. Patrick 

v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). ―Intent and knowledge are fact 

questions for the jury, and are almost always proven through evidence of the 

circumstances surrounding the crime.‖ Manrique v. State, 994 S.W.2d 640, 649 (Tex.

Crim. App. 1999) (Meyers, J., concurring) (citing Robles v. State, 664 S.W.2d 91, 94 

(Tex. Crim. App. 1984)).

2. Analysis

In this case, Linden did not deny emptying his gun by firing four shots at Peter. 

Additionally, the jury heard testimony about the trajectory of the bullets and that the back 

glass of Peter‘s vehicle was shot out. The State contended that because the bullets hit 

Peter in the back of the head and neck, this was an indication that Linden had either 

begun firing before he was even next to Peter or that he continued to fire after Peter was 
5

driving away. The jury also heard testimony that Peter did not have a gun. Based on 

this evidence and the jury‘s ability to infer a defendant‘s intent from his words, acts, and 

conduct, we conclude that, when viewed in the light most favorable to the prosecution, a 

rational trier of fact could have found beyond a reasonable doubt that Linden acted with 

the intent to kill Peter. See Jackson, 443 U.S. at 319; Patrick, 906 S.W.2d at 487. 

Having so concluded, we need not address Linden‘s separate issue concerning the legal 

sufficiency of evidence supporting a finding that he ―knowingly‖ killed Peter. See TEX.

PENAL CODE ANN. § 19.02(b)(1) (requiring that a jury must find that a defendant 

intentionally or knowingly caused the death of an individual); see also TEX. R. APP. P.

47.1. Accordingly, we overrule Linden‘s third, fourth, and fifth issues. 

B. Jury Charge

By his first and second issues, Linden contends that the trial court committed 

reversible error by: (1) failing to include an instruction on self-defense in the application 

portion of the jury charge; and (2) giving incorrect definitions for the required culpable 

mental state for the crime for which he was indicted. 

1. Standard of Review

―Our first duty in analyzing a jury-charge issue is to decide whether error exists. 

Then, if we find error, we analyze that error for harm.‖ Ngo v. State, 175 S.W.3d 738, 

743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. 

App. 2003)). The degree of harm required to reverse the trial court‘s judgment depends 

on whether or not the appellant objected to the charge before it was given to the jury. 

Id. Under Almanza v. State, if the defendant has properly objected to the charge, we 

need only find ―some harm‖ to reverse the trial court‘s judgment. Id. at 743–44 (citing 
6

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‘g)). If the 

defendant fails to object, however, or states that he has no objection to the charge, ―we 

will not reverse for jury-charge error unless the record shows  ̳egregious harm‘ to the 

defendant.‖ Id. In determining whether egregious harm exists, we examine the 

charge in its entirety, the state of the evidence, the argument of counsel, and any other 

relevant information in the record. Id. 

2. The Self-Defense Instruction 

At his trial, Linden argued that he shot Peter in self-defense. The jury charge, in 

a separate ―Self-defense Charge,‖ included a full and comprehensive explanation of the 

affirmative defense of self-defense and instructed the jury that if the requirements of a 

valid self-defense claim were met, or ―if [the jury has] a reasonable doubt thereof, [it] 

should find the defendant not guilty.‖ However, on the following page, the paragraph 

titled ―Charge‖ does not make the self-defense instruction explicit nor does it apply the 

self-defense instruction to the facts of Linden‘s case. Instead, it stated simply: 

Now, if you believe from the evidence beyond a reasonable doubt 

that . . . Linden intentionally or knowingly caused the death of Peter 

Tran . . . you shall find the defendant guilty of the offense of [m]urder as 

alleged in the indictment. 

Unless you so find, or if you have a reasonable doubt thereof, you 

shall find the defendant NOT GUILTY.

By his first issue, Linden argues that this ―allowed the jury to find that appellant 

engaged in the actions made the basis of the prosecution, and then convict him of the 

charged offense, without requiring the jury to find that the state had disproved 

self[-]defense beyond a reasonable doubt.‖ The Texas Court of Criminal Appeals has 

held that ―the failure to apply the law of self-defense to the facts of the case and to 
7

instruct the jury to acquit if they held a reasonable doubt on self-defense was error.‖ 

Barrera v. State, 982 S.W.2d 415, 415 (Tex. Crim. App. 1998). Here, the jury charge 

did not apply the self-defense law to the facts adduced at the trial, and therefore, we 

conclude that the jury charge contained error. See id; see also TEX. PENAL CODE ANN. 

§ 2.03(d) (West 2003) (―If the issue of the existence of a defense is submitted to the jury, 

the court shall charge that a reasonable doubt on the issue requires that the defendant 

be acquitted.‖).

However, because Linden did not object to the error, he must demonstrate 

egregious harm. See Almanza, 686 S.W.2d at 171; Barrera, 982 S.W.2d at 417. 

Under nearly identical facts, we have previously held that the failure to include 

self-defense in the application paragraph did not cause egregious harm where the 

appellant relied on self-defense as a defensive theory at trial, it was urged in closing 

arguments, and a separate instruction on self-defense was given that gave the jury 

instructions on how to properly apply the defense. Barrera v. State, 10 S.W.3d 743, 

745 (Tex. App.—Corpus Christi 2000, no pet.). Just as in that case, a separate 

instruction was given in this case, and in closing argument, Linden‘s counsel not only 

argued at length that the jury should find Linden not guilty based on the self-defense 

instruction, but he actually re-read nearly the entire instruction to the jury. Linden‘s 

counsel concluded, ―[w]e have the right under our law and under this law to defend 

ourselves. . . . [Linden] didn‘t have a retreat. He reacted. He reacted in 

self-defense.‖ Just as we concluded in Barrera, ―[t]here is nothing in the record 

indicating the jury was misinformed or uninformed on the law of self-defense.‖ Id. 

Considering the jury was given a general instruction on the law of self-defense—and 
8

specifically told that it should find Linden not guilty if it believed or had a reasonable 

doubt as to whether or not he acted in self-defense—and considering that Linden‘s 

counsel discussed self-defense in his argument before the jury, we conclude the trial 

court's error in the jury charge did not cause egregious harm to Linden. See id.; see 

also Ngo, 175 S.W.3d at 743–44. Accordingly, we overrule Linden‘s first issue.

3. Culpable Mental State

By his second issue, Linden contends that the trial court erred by giving improper 

definitions for ―intentionally‖ and ―knowingly‖ in the jury charge as they pertain to the 

offense for which he was indicted. Specifically, Linden contends that the definitions in 

the jury charge included language that would allow him to be convicted because he 

intentionally or knowingly engaged in the conduct that caused Peter Tran‘s death, rather 

than the fact that he intentionally or knowingly caused Peter Tran‘s death. This 

distinction is described in terms of ―result of conduct‖ offenses and ―nature of conduct‖ 

offenses. We agree that the court committed error in defining these terms. 

Murder is a result of conduct offense, meaning that the applicable mental state is 

only that related to the result of the conduct—i.e., intentionally killing—not the conduct 

that ultimately causes the result—i.e., intentionally firing the gun. See Cook v. State, 

884 S.W.2d 485, 490 (Tex. Crim. App. 1994). It is error to include the definition relevant 

to a nature of conduct offense in a jury charge when the appropriate definition would only 

include language pertaining to the result of conduct. See Schroeder v. State, 123 

S.W.3d 398, 400 (Tex. Crim. App. 2003). Here, the trial court clearly erred by giving 

over-inclusive definitions for ―intentionally‖ and ―knowingly‖ in the jury charge. See id.

However, here again, Linden must demonstrate egregious harm because he 
9

failed to object to the jury charge. See Almanza, 686 S.W.2d at 171. In analogous 

situations, both the First and Fifth District Courts of Appeals have addressed this issue 

as it pertained to aggravated assault cases—also a result of conduct offense. Green v. 

State, 891 S.W.2d 289, 293 (Tex. App.—Houston [1st Dist.] 1994, pet. ref‘d); Sneed v. 

State, 803 S.W.2d 833, 834–35 (Tex. App.—Dallas 1991, pet. ref‘d). Each court 

concluded that the definitions were erroneous, but because the factors outlined by the 

Texas Court of Criminal Appeals in Bailey were unique to each case, the courts differed 

on whether there was egregious harm that prevented the respective defendants from 

receiving a fair trial. Green, 891 S.W.2d at 295; Sneed, 803 S.W.2d at 836–37; see

Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993) (noting that the court must 

consider the following factors: the charge in its entirety, the state of the evidence, the 

argument of counsel, and any other relevant information in the record in order to 

determine if egregious harm existed). In determining if egregious harm existed in this 

case, we look to these same factors. See Bailey, 867 S.W.2d at 43.

First, the charge itself mitigated any possible harm to the defendant by giving the 

proper definition of intentionally and knowingly in the application paragraph. In the 

portion of the charge where the jury is actually called upon to make a determination, the 

charge allows the jury to find Linden guilty only if he ―intentionally or knowingly caused 

the death of Peter Tran‖ and makes no mention of conduct whatsoever. See id. 

Second, as we noted in Part A, supra, the evidence in this case was clearly sufficient to 

find that Linden intended the result of his conduct. See id. Third, neither party 

mentioned the erroneous instruction in argument to the jury nor argued that the jury 

should find Linden guilty based solely on his conduct; and moreover, although Linden 
10

admitted to the shooting, he made no argument that he did not intend to kill Peter, only 

that he acted in self-defense (in fact, he continuously argued that deadly force was 

justified). See id. And fourth, Linden points to no specific evidence in the record that 

would tend to make this error egregious. See id. Therefore, after considering the 

Bailey factors, we conclude that the trial court‘s error was not so egregious that Linden 

was denied a fair trial. See id.; Green, 891 S.W.2d at 295 (concluding that 

overwhelming evidence and defense counsel‘s arguments to the jury in closing argument 

were sufficient to render erroneous definitions of ―intentionally‖ and ―knowingly‖ not 

egregiously harmful). Linden‘s second issue is overruled.

III. CONCLUSION

Having overruled all of Linden‘s issues on appeal, we affirm the trial court‘s 

judgment. 

________________________

GINA M. BENAVIDES,

Justice

Publish.

TEX. R. APP. P.47.2(b).

Delivered and filed the

7th day of July, 2011.