Opinion filed April 4, 2024

In The

Eleventh Court of Appeals __________

No. 11-22-00227-CR 

__________

APOLINAR VASQUEZ SAUCEDO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 244th District Court

Ector County, Texas

Trial Court Cause No. C-21-0784-CR

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

Appellant, Apolinar Vasquez Saucedo, appeals his conviction of evading 

arrest with a vehicle, a third-degree felony. See TEX. PENAL CODE ANN.

§ 38.04(b)(2)(A) (West 2016). A jury assessed his punishment at two years’ 

confinement in the Institutional Division of the Texas Department of Criminal 

Justice, and the trial court sentenced him accordingly. In a single issue on appeal, 
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Appellant contends that the trial court erred when it failed to define “knowingly” in 

the abstract portion of the jury charge, and that this error resulted in egregious harm. 

We affirm.

Factual and Procedural History

Police investigation of a bar fight in Odessa became a pursuit when Appellant 

refused to pull over for the police. Officer Felipe Cobos with the Odessa Police 

Department responded to a report of a disturbance in the parking lot of Black Gold, 

a bar in Odessa. During his investigation, bystanders approached Officer Cobos and 

told him that one of the men involved in the fight was leaving in a black pickup, 

driving westbound on University Boulevard. Officer Cobos relayed this information 

to other responding officers, and Sergeant Tyler Rodgers, en route to Black Gold, 

began to search for the vehicle. Sergeant Rodgers observed a black pickup traveling 

away from Black Gold and activated his emergency lights to initiate an investigative 

stop. But the driver, later identified as Appellant, did not stop. Instead, without 

speeding, Appellant drove toward and waited through a traffic light, turned south 

onto Grandview Avenue, and continued to drive, all while Sergeant Rodgers’s 

emergency lights flashed directly behind him. Appellant kept driving while Sergeant 

Rodgers continued to pursue Appellant with his lights activated, before Officer Matt 

Muehlbrad joined, making a U-turn directly behind Appellant. Sergeant Rodgers’s 

dashcam footage showed two other officers following in their vehicles with lights 

and sirens activated. Appellant passed multiple areas suitable for stopping during 

the pursuit.

But Appellant continued to drive. While stopped at a second traffic light, an 

officer verbally directed Appellant to turn off his vehicle. Instead of complying, 
3

Appellant waited for the light to turn green and continued driving. Finally, 

Appellant pulled into a parking lot and exited his vehicle with raised hands. 

Officers on scene detained Appellant and placed him into the back of Officer 

Tyler Thelen’s vehicle. Officer Thelen advised Appellant of his Miranda rights,

1

and Appellant agreed to talk with him. Appellant said that he defended himself after 

being assaulted “outside the . . . club.” Appellant admitted that he saw the vehicles

behind him and recognized them to be police vehicles. When Officer Thelen asked 

why Appellant did not pull over, Appellant responded “I didn’t want to get arrested.”

On appeal, Appellant contends that the trial court committed reversible error 

when it omitted the definition of “knowingly” or “with knowledge” in the abstract 

portion of the charge, denying him a fair and impartial trial.

Standard of Review

A review of alleged jury charge error involves two steps. Ngo v. State, 175 

S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 

731–32 (Tex. Crim. App. 1994). First, we determine if there is any error; second, if 

there is error, we must determine if the error resulted in sufficient harm to require 

reversal. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d at 731–32.

Not all charge errors require reversal on appeal. Reeves v. State, 420 S.W.3d 

812, 816 (Tex. Crim. App. 2013). If the charge is erroneous, then on appeal we must 

first determine if the defendant objected to the erroneous charge. Id. If the defendant 

objected to the erroneous charge, we will reverse if the record shows that the error 

caused “some harm.” Id. Conversely, if the defendant failed to object, an appellate 

court may only reverse upon a finding of “egregious harm.” Id. Egregious harm is 

1

Miranda v. Arizona, 384 U.S. 436, 478–79 (1966).
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harm that denies the defendant a fair and impartial trial. Nava v. State, 415 S.W.3d 

289, 298 (Tex. Crim. App. 2013). This is a difficult standard to meet, and the harm 

must be shown in the record. Reeves, 420 S.W.3d at 816. To assess harm, the 

appellate court reviews the Almanza factors: (1) the jury charge itself; (2) the state 

of the evidence, including weight and probative value; (3) counsel’s arguments; and 

(4) any other relevant information in the trial record. Vega v. State, 394 S.W.3d 514, 

521 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. 

App. 1985).

Analysis

Appellant concludes that the unobjected-to omission of the definition of

“knowingly” or “with knowledge” from the abstract portion of the jury charge was 

error. The State responds that “knowledge” that a peace officer is attempting to 

arrest or detain the person is an element of an evading-arrest offense but does not 

simply concede error. Rather, the State contends that, even if the trial court’s 

omission was error, that omission did not cause Appellant egregious harm.

The trial court is obligated to provide the jury with the statutory definitions 

that affect the meaning of the elements of an offense. Villarreal v. State, 286 S.W.3d 

321, 329 (Tex. Crim. App. 2009); see TEX. CODE CRIM. PRO. ANN. art. 36.14 (West 

2007) (the trial court must instruct the jury on the law applicable to the case);

Morris v. State, No. 11-11-00223-CR, 2013 WL 3877789 at *6 (Tex. App.—

Eastland July 25, 2013, pet. ref’d) (mem. op., not designated for publication) (If a 

phrase, term, or word that the jury must use to properly resolve an issue is statutorily 

defined, the trial court must submit the statutory definition to the jury.). The Texas 

Court of Criminal Appeals recently examined Section 38.04 of the Penal Code and 

held that it requires the State to prove, in relevant part, the following elements:
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(1) the defendant (2) intentionally fled (3) from a peace officer (4) with knowledge 

he is a peace officer, (5) with knowledge the peace officer is attempting to arrest or 

detain the defendant, and (6) the attempted arrest or detention islawful. Nicholson v. 

State, 682 S.W.3d 238, 245 (Tex. Crim. App. 2024). The court further held that the 

State is not required to prove that the defendant knew the attempted arrest or 

detention was lawful. Id. at 240. Because the fourth and fifth elements require 

knowledge, the court was obligated to provide the statutory definition of 

“knowingly” or “with knowledge” as it related to the circumstances of Appellant’s 

conduct. See PENAL § 38.04; Riggs v. State, 482 S.W.3d 270, 275 (Tex. App.—

Waco 2015, pet. ref’d) (the conduct element applicable to the “knowledge” element 

of an evading offense is “circumstances surrounding the conduct”); Ester v. State, 

151 S.W.3d 660, 664 (Tex. App.—Waco 2004, no pet.) (omission of “knowledge” 

definition constituted error); Vargas v. State, No. 10-20-00097-CR, 2021 WL 

299088 at *7 (Tex. App.—Waco Jan. 27, 2021, no pet.) (mem. op., not designated 

for publication) (same).

Because Appellant did not object to this error at trial, we must next determine 

if it caused egregious harm such that Appellant was deprived of a fair and impartial 

trial. See Almanza, 686 S.W.2d at 171. To do so, we must examine the record using 

the Almanza factors: (1) the jury charge as a whole; (2) the state of the evidence, 

including the contested issues and the weight of the probative evidence; 

(3) counsel’s arguments; and (4) any other relevant information in the trial record

that informs our analysis. 

First, we review the jury charge as a whole. The charge instructed the jury to 

give terms their common meanings unless otherwise defined by the charge. The 

“failure to give an abstract instruction [or definition] is reversible only when such 
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an instruction [or definition] is necessary to a correct or complete understanding of 

concepts or terms in the application part of the charge.” Alcoser v. State, 603 

S.W.3d 160, 165 (Tex. Crim. App. 2022) (quoting Plata v. State, 926 S.W.2d 300, 

302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 

S.W.2d 234 (Tex. Crim. App. 1997)). 

We assume the jury applied the commonly understood meaning of “know” in 

the absence of a statutory definition. See Olveda v. State, 650 S.W.2d 408, 409 (Tex. 

Crim. App. 1983) (“[W]hen the statutory definition is not included in the charge, it 

is assumed the jury would consider the commonly understood meaning in its 

deliberations.”); McKinley v. State, No. 11-15-00051-CR, 2017 WL 1074365 at *2 

(Tex. App.—Eastland Mar. 16, 2017, pet. ref’d) (mem. op., not designated for 

publication). The statutory definition of “knowingly” does not substantially differ 

from the common meaning of the term “know.” Mathis v. State, 858 S.W.2d 621, 

622 (Tex. App.—Fort Worth 1993, pet. ref’d) (analyzing the common meaning of 

the term “know” as it relates to the omission of the statutory definition of 

“knowingly” or “with knowledge” and holding that the terms are not substantially 

different from the common usage of those terms); cf. Carbajal v. State, No. 08-18-

00081-CR, 2019 WL 5485259 at *4 (Tex. App.—El Paso Oct. 25, 2019, no pet.)

(not designated for publication) (holding that the failure to define “with intent” was 

not egregiously harmful, noting that the common and statutory meanings of “intent”

were similar.). Merriam-Webster defines “know” in several ways, one of which is 

“to be aware of the truth or factuality of.” Know, MERRIAM-WEBSTER’S DICTIONARY

(11th ed. 2020). In relevant part, the definition in Section 6.03 of the Texas Penal 

Code uses similar terms:
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A person acts knowingly, or with knowledge, with respect . . . to 

circumstances surrounding his conduct when he is aware . . . that the 

circumstances exist. 

PENAL . § 6.03(b) (West 2021). We conclude that the mental state “knowingly,” as 

it relates to the existing circumstances, is not substantially different from the 

common usage and understanding of those terms. See Mathis, 858 S.W.2d at 622. 

Moreover, here, even though there is a special definition in law, the definition 

of “knowingly” is among terms commonly used, “simple in themselves.”2 The jury 

could have understood the term’s meaning without a definition to “correct or 

complete” its understanding of the concepts and terms in the application portion of 

the charge. And because the common and statutory definitions are similar, its 

definition was not necessary to a correct or complete understanding of the concepts 

or terms in the application part of the charge. McIlvennia v. State, No. 03-14-00352-

CR, 2016 WL 3361185 at *9 (Tex. App.—Austin June 10, 2016, pet. ref’d).

Moreover, the application portion correctly instructed the jury. An 

application paragraph that properly instructs the jury weighs against a finding of 

egregious harm. Arevalo v. State, 675 S.W.3d 833, 854–55 (Tex. App.—Eastland

2023, no pet.). The application paragraph here did so by instructing the jury as 

follows:

Now, if you find from the evidence beyond a reasonable doubt that on 

or about March 6, 2021, in Ector County, Texas, the Defendant, 

APOLINAR VASQUEZ SAUCEDO, while using a vehicle, did then 

and there intentionally flee from Tyler Thelen, a person the defendant 

knew was a peace officer who was attempting lawfully to arrest or 

2

See Druery v. State, 225 S.W.3d 491, 509 (Tex. Crim. App. 2007) (quoting King v. State, 553 

S.W.2d 105, 107 (Tex. Crim. App. 1977) (using the phrase “simple in themselves” to describe commonly 

used words)).
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detain the defendant, then you must find the Defendant Guilty of the 

offense of Evading Arrest or Detention with a Vehicle.

The language contained in this application paragraph substantially tracks the 

language of the operative statute, Section 38.04 of the Penal Code. See PENAL

§ 38.04. The paragraph effectively restricted the jury’s deliberations to the 

allegations in the indictment. Viewing the trial court’s charge in its entirety, the trial 

court’s instructions correctly tied the statutory requirement of “knowledge” to the

peace officer’s status as an officer and the peace officer’s attempt to arrest or detain

Appellant. This factor weighs against a finding of egregious harm.

Second, we review the entirety of the evidence presented at trial. The state of 

the evidence overwhelmingly shows that Appellant knew that peace officers were 

attempting to arrest or detain him. Dashcam and bodycam footage from three 

different officers showed Appellant’s evasion of police officers in his vehicle. 

Appellant was initially pursued by a single officer before more joined, all with lights 

and sirens activated on their vehicles. At a stoplight, one of the officers verbally 

directed Appellant through the PA system to turn off his vehicle. After Appellant’s 

arrest, he admitted to Officer Thelen that he knew that the police were behind him

and that he simply did not want to be arrested. Thus, the evidence strongly indicates

that Appellant knew that peace officers were attempting to arrest or detain him. This 

factor weighs against a finding that Appellant suffered egregious harm.

Third, we review the arguments of trial counsel. When reviewing the parties’

arguments, we look to whether statements made by the State, Appellant’s trial 

counsel, or the trial court exacerbated or ameliorated the error. Arevalo, 675 S.W.3d 

at 855 (citing Arrington v. State, 451 S.W.3d 834, 844 (Tex. Crim. App. 2015)). 

Here, both the State and Appellant’s trial counsel focused on the element of 
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knowledge. In closing, his trial counsel maintained that Appellant did not know 

Officer Thelen was pursuing him, while the State told the jury that it was “impossible 

to argue” that the defendant did not know he was being pursued for the purpose of 

arrest or detainment by law enforcement. Neither party misstated the law; rather, 

both sides emphasized the element of knowledge as a factual dispute to the jury. We 

cannot say this emphasis from both sides exacerbated or ameliorated the absence of 

a relevant statutory definition. This factor does not weigh for or against a finding 

that Appellant suffered egregious harm.

Fourth, we review any other relevant information in the record. In voir dire, 

the State briefly and accurately referenced the element of knowledge when it told 

the venire panel that “[y]ou have to know the person who is following you is, in fact, 

a police officer.” Defense did not mention knowledge during voir dire, and the jury 

did not send out any relevant notes or indicate any confusion about the terms of the 

court’s charge during its deliberations. See Gelinas v. State, 398 S.W.3d 703, 709

(Tex. Crim. App. 2013) (the absence of any jury note during deliberation expressing 

confusion as to the challenged instruction weighed in favor of no egregious harm). 

Nothing else suggests that Appellant was harmed from the absence of the definition. 

This factor does not weigh in favor of finding that Appellant suffered egregious

harm.

We note that, rather than specifically addressing the Almanza factors, 

Appellant quotes and refers to the concurring opinion in MacDougall v. State in 

support of his argument on appeal. 702 S.W.2d 650, 652 (Tex. Crim. App. 1986). 

In MacDougall, the Court of Criminal Appeals found some harm occurred because 

the trial court refused to define “deception,” and theft by deception was the only 

theory available to the State. Id. at 651–52. Quoting language from Judge Teague’s 
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concurring opinion, Appellant contends that “the jury was clearly unable to correctly 

apply the law to the facts of this case, or to correctly judge the merits of the case; 

thus, the appellant was deprived and denied the fair trial that the Constitutions 

guaranteed him.” Id. at 653 (Teague, J., concurring).

MacDougall is distinguishable from this case. For example, MacDougall 

analyzes a different statutory definition for a different offense, deception was the 

only theory available to the State, and the trial court in its charge instructed that 

consent is not effective if induced by deception, all of which factored into the court’s 

“some harm” analysis based on the trial court’s omission of the definition of 

“deception.” Id. at 651. In MacDougall, unlike the case before us today, Appellant 

had requested the instruction and the trial court refused; therefore, the court 

examined the record for “some harm,” a lower standard than that of “egregious 

harm,” the standard that we are required to apply in this case. Id. at 651–52; see

Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (“Egregious harm 

is a ‘high and difficult standard’ to meet.”). We believe that with no factor weighing 

in favor of egregious harm, the “jury was unlikely to have been misled given the fact 

that [their] common sense [as to the meaning of ‘knowingly’], the correct abstract

paragraph, and correct jury arguments” most likely allowed them to properly apply 

the law. Gelinas, 398 S.W.3d at 709–10. 

Viewing the jury charge as a whole, the state of the evidence, the arguments 

of counsel, and other relevant evidence in the record, we conclude that Appellant did 

not suffer egregious harm when the trial court omitted the definition of “knowingly” 

in its charge. See Vargas, 2021 WL 299088 at *7 (the trial court’s erroneous 

omission of the definition of “knowingly” in an evading case did not cause the 

appellant to suffer egregious harm); see also Gelinas, 398 S.W.3d at 709–10. The 
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trial court’s failure to provide the statutory definition of “knowingly” was not so 

harmful that Appellant was denied a fair and impartial trial. See Vargas, 2021 WL 

299088, at *7. Accordingly, we overrule Appellant’s sole issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

W. BRUCE WILLIAMS

JUSTICE

April 4, 2024

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.