### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00381
- CR

Crispin James Harmel, Appellant

v. The State of Texas, Appellee

FROM THE 368TH DISTR ICT COURT OF WILLIAM SON COUNTY NO. 13
- 0826
- K277, TH E HONORABLE RICK J. KENNON, JUDGE PRESID ING

O P I N I O N

Crispin James Harmel was convicted by a j ury of capital murder f or inte ntionally killing Jessi k a Kalah er in the course of committing or attempting to commit kidnapping, robbery,

or aggravated sexual assault

. See Tex. Penal Co de § 19.03(a ) (2)

. The trial c ourt entered judgm ent on the jury ’ s ve rdict and assessed Harmel ’ s punishment at impri son ment for life , without par ole , in the Texas Department of Crim inal Justice

. See id. § § 12.31(a) ( 2) , 19.03 (b)

.

In four issu es, Harmel contends (1) tha t t he evidence was insufficient to support the jury ’ s findings that he intentionally caused Kalaher ’ s death, (2) that the jury charge should
have included abstract definitions of the intentional a nd knowing mental states, ( 3 ) that th e charge should have in clu ded limiting instructions under R ule of Evidence 4 04 (b) and about t he
burden of proof applicable to extraneous act s, and (4) that the trial court abused its discretion by admitting evid ence obtained by allegedly invalid search warrants. We affirm

.2 BACK GROU ND The day before Labor Day 2009, Jessi k a Kalaher spent th e day so c ializing with
her cousin and best friend, Melanie Lopez

- Kilp atrick, and other mutual friends. The group w ent

sw im ming and b arbecu ed

. Kalah er wore a bat hing suit and a white , t erry
- clo th cov er
- up. The

cover
- up had a cloth tie string , whic h Kalaher would no r mally w ear tied in a bow.

The group stayed at th e pool for several hours then went to a res taurant

. Lopez

- Kilpatrick bought Kalaher ’ s drink for her bec ause Kalaher h ad so little mone y
. Also , L opez
- K il patrick ’ s brother would help Kalaher with money from tim e to t ime

.

After the restaurant closed , the group went to a bar and played pool. Kalaher had only one drink because she had to work th e next morning

. After midnight, the group left the bar,
and Ka laher dropped the friends off in her car
. Lopez

- Kilpatrick i nvite d Kala h er to stay with her overnight, but Kalaher refused because “ she needed to get to work in the mo rning. ” She told Lop ez
- Kilpatrick that she would go home, stopping to b uy dog food on the way.

Kalaher stopped at a Wal mart near the int ersection of U.S

. Highway 183 and Walton Way in Cedar Par k

. Walmart v ideo recordings introduced in evidence show her buying
do g food at around 1:44 a.m
. She then le ft the store wi th the bag of dog food and got into her
white Kia i n the parking lot

. The recording s also show a man

— later determined to be Harmel

— walk out of the s tore shortly after she did , approach the driver side of the Kia , and get in on that side rather than on t he passenger side

. The rec ordings show both Kalaher and Harmel in
the store and then w alking o utside, but they do not show the two ever interacting or even acknowledging each other before he got in the car

. K alaher ’ s behavior when she arriv ed at the
Wal mart suggest e d that she was n o t there to meet anyone
.3 D et ective Larry Bond of the Cedar P ark Po l ice Department described Kal aher , as she was shown on th e recordings : she “ pulled in , a nd her white Ki a p arked, and now she is

w alking f rom her car to t hese gr ocery doors ” w ithout “ appear[i ng] to be looking around as if
she ’ s about to meet someb ody

. ” Sh e d id not “ appear to b e looking around, trying to find her
suitor , ” unlike Harmel ’ s later suggest ion to in vestigators tha t Kalaher was at the Walmart to
meet him for sex. S he was , Det ective Bo nd testified , “ j ust carryin g a large bag of dog food

. ”
Harme l is s h own getting into the Kia on the driver side after Kal aher a t around 1:4 6 a.m., and the
Kia l eft the parking lot at around 1: 47 a.m.

Other recordings show Kalaher ’ s K ia ent er a n earby pizza store ’ s parkin g lot

at around 2:53 a.m. The Kia is shown sto pping i n a par king spot, its lights t urn off, and then

a figur e is see n exiting the dr iver side and moving through the parking lot to ward a red or

maroon tr uck.
After da wn, two employees of the pi zza store arrive d for work

. One arrived at around 9:00 a.m., and t h e Kia w as in his pa rking spot. He saw Kalaher in the Kia trying to crawl
from t he back s eat to the front and heard the horn honk in the process. When the second empl oy ee arrived , about half an hour later , she saw Kalaher in the K ia naked and “ climbi ng out
of the back t o get dressed in the front seat

. ” H er movem ents were not “ sm o oth ” or “ f luen t ” ; they

were “ jerky ” and “ uncoordinated

. ” The male employee next sa w Kalaher mid

- morning

. S he was st anding outsi de the
Kia ’ s driver do or , bent o ver , looking in t he car for something

. L ater , he saw her walk a cross the park ing l ot while holding her hands up to her ears like s he was talking on a phone

. T he female employee looked ou t the pizza store ’s window and saw Kalaher standing outside the Kia ’ s driver d oor
. She was “ m e ssing w ith her ha ir ” and “ trying to pu t hersel f together

. ” “ S he was4

very skittis h ” and “ acting li ke everything scared her

. ” This made the employee think that K a laher

was “ on something

. ” Sti ll later, the employee t ook a smoking b r eak outs ide and s aw Kalahe r again

. This time s he was ta lking to herself in the Kia

.

A round noon th e female employ ee again s aw Kalaher in the Kia , with “ her r ight pointer finger on the s teerin g wheel

— or almost touchi n g the steering wheel, an d she was making the figur e
- 8 motion ” and “ swayi ng back and forth, kin d of like Stevi e Wonder d oes, ” “ still
talkin g and singing ” and “ soothing herself

. ” H ours later, the male employee no ticed Kalaher in
the Kia again. She was dead. H e saw “ bruising around her neck, on her fac e, and on her le gs
. ”

O f ficer s from the Cedar Park Polic e Department arrived to investigate

. Wh e n approaching t he Kia, they notice d “ a strong smell, a pungent sm ell

. ” Kalaher w a s d ead, partially
undressed and wear ing only her swimsuit cover

- up around her midsection . The ti e stri n g fro m

t he cover
- up was missing

. There were feces on her leg s , in t he f ront seat , on t he rear pas sen ger door , on a sun shade in the back seat , on the ce n t er console , on the ba ck seat ’ s floor boards , and
on items on the back seat ’ s fl oor
. The interior otherw i se wa s “ very messy ” and in “ disar ray
. ”
The officers could not find the keys

. Her body appeared “ beat up pretty bad. ”

D et ec t ive Bond later re viewed ph o t o s , entered into evidence at trial, th at law
enforcement took of the Ki a whil e Kalaher ’ s body was in it. He noted that the driver seat was
pus h ed far backwar d s from the steering wheel , suggesting that Kalaher could not reach the pedals

.

He also saw liga ture m arks on Kalaher ’ s shou ld er and neck , in cluding a

“ horizontal ligature mark around the front of her throat ” and “ scr atche s a nd fing ernail marks
undernea th her chin

. ” He con sidered these in j uri e s “ su sp icious a nd odd

. ” He also learned that,

as o f the day s h e died, Kalaher had a negative bal ance in her banking account of about $15 8

.5

After law enforcement is sued a media release for help identifying the man and the truck, several tip s named Harmel as the truck ’s owner.

Det ective Bond m et Ha rmel at Harmel ’ s par e nt s ’ house and s aw th at Harmel ’s
truck ha d been alt ered

. He testified that “ [t] he large silv er chrome piec e across the tailga te

. . . was no longer ther e , ” “ some of t he s ide molding along the bottom portion of th e driver ’ s door

area
. . . was also g one , ” “ some silver chrome piec es ” that “ clip[ ] o nto the wh eel on those
Chevrole t models were n o lon ger there , ” “ the silver color o f th e actual metal rim had been painted bla ck , ” a nd “ t he wheel s [we] re n o longer s ilver

. ”

Harmel would later permit l aw enforc ement a nother chance to inspect his truck

. Durin g that inspection, they found “ black spray paint that wa s sp rayed o n ” the ba ck of the tr uck , where the colo r had origi nally b ee n silver

. The truck ’ s back silver plate, which wou ld usually

say “ Chevrolet ” acr oss i t , had been remo ved altogether , and t here wa s another at tempted

sp ray
- pa inti ng on th e silver back bum per. On e t ire rim was “ completely covered wit h black spray paint , ” and t wo othe rs were spray
- painted but not completely so
. T he “ blac k and si lver st rip ” o n the driver door was rem oved

.

During the det ectives ’ interview wit h hi m, Harmel said t hat Ka lah e r and he pla nne d on a sex w ebsite to meet a t the Walmart on the night in qu estion

. He said that they
left together i n her car and went to a park. On t he wa y , he said , they stop ped at an ATM

“ because

. . . [ Kalah er ] needed t o withdraw $20. ” Later , however, Har mel sai d t h a t she withd r ew the $2 0 for h im. Harmel inconsiste nt ly told t he detectiv es that , when they returned from the park , he was in the Kia ’ s fron t passenger s eat or that he was in the back seat.6 H arm el describe d the end of his e ncounter with Kalaher

. He said th at , as he was leavi ng the Kia in the piz za store ’ s parking lot , he saw the car ’ s headlights turn on

. But the
video rec ordings show t h at, o n ce the Kia parked, its headlights never came back on

.

Ha rm el also claim ed that Kalaher had given him her debit car d b ec a use he needed

mo ney for gas
. He said that he was supposed t o find her around noon the ne xt day at a nearby

grocery s t ore to retur n her card

. H e said th at he drov e up and d own the gro cery s tore ’s pa rking
lot in his truck looking for her

. The store had vi de o of the parking lot fr om the rele vant time o f day, but the video did not show Harmel or his truck

.

A fter skipping a subsequent sched u led interview to “ play [] softball , ” Har mel appeared for a second interview. In it, D etective Bond remarked to Harmel abo ut Kalaher ’ s driver seat being pushed back and asked him whether s he wa s a ble to rea ch the ped als. Har mel responded, “ I don ’ t ev en wa n t to t hink about it; it ’ s g ross. ” But, at that point, law e nforcement
had no t shared any of the d etails of the ca r inte rio r ’ s condition with Harmel

.

Har mel also gave conflicting statements abou t the time of the encounter and his
activities after he lef

t K alaher

. In the first interview , he said that he went to hi s friend Leslie
Garcia ’ s house and waited for her and her then

- fi an cé to arrive but that they did not show up.
But in the se cond intervi ew, he said that he went in their house, took a shower, sat o n thei r couch, watched TV, talked about knee surgery with t hem , and left some clothes at their house.
Garcia testified th at sh e w as a very close friend to Harmel but that , on the day in question, he did

no t come to her house at all. H arm e l also told Dete c tive Bond t he purported scre en name that
Kalaher had used on the sex website ; however , that screen name was active on the web si te six
months after Kalaher ’ s death.7 After news of her de ath sp r e ad, Harmel talke d with a friend who h ad briefly
dated Kala her

. A few days after Kalaher was found , the friend “ confront [ed] ” Harme l. He was angry and w anted to know “ what happened. ” Harm el to ld hi m that he and Kalaher had sim ply
been “ catching up ” for about a h alf h our in the Walmart parking lot before he w ent insi d e
. H armel also told the friend that Kalah er “ was fine ” when he left her, “ that he didn ’ t do

a nything , ” a nd that h e “ didn ’ t hu rt h e r
. ” H armel also talk ed with another friend about why the police c ontacted Harmel

. H e told he r that he was the la st per s on t o see Kalaher alive but that police had cleared h im

.

Det ective Fel i ciano Acevedo , who spe cializ es in f orensic computer evidence,

an al yzed ce llphone s reco vered fr om H armel

. H e search ed for Kalaher ’s name on one of t he phone s , and it returned only one hit

. It was from the day after Kalaher d ied. It was a sea rc h of

“ we areau s tin.co m, ” whi ch belongs to “ a local ne ws organization

. ”

A for ens ic search of Kalaher ’ s lap top and flash drive, the memory card from her phone, and a laptop that she shared with her cousi n revealed no connections between K alah er and Ha rmel, including no in dicati on that Harmel ’ s phones ever i nteracted wi th Kalaher ’ s , or he r compute r s , or that she had ever vis ited any of the sex websites over which Harmel , as he told investigators , arra nged t heir meeting

. Sim ilarly, an examination of Harmel ’ s phones revealed no

con nection with Kalaher from any time before the day of he r de at h.

Dr. Da v id Dolinak conduct ed the autopsy

. He testified that t he external injuries
that he believed were releva n t to K alaher ’ s cause of death were “ a l igature mark or a scrape that

w ent ac ross the front of her neck from one side to another ” and “ smal l h e m o rrhages ”

— call ed

“ petechiae ”

— “ on her eyes, a r ound her eye s,
. . . on her face a nd up pe r neck, ” and on her eyelid s
.8 He t hought t he neck mark “ suspicious

. ” H e testified that i t was like ly cau sed by a
li gat u re made of a soft material like cl oth , rather t h an s omething har de r like piano w ire, bec ause

t here were “ little abrasions comin g off t he side of ” the mark , giving i t a “ r agged look

. ”
Dr. Dolinak testified that petechiae appear when “ tiny blo od ve ssels

. . . have ruptured, leaving these pi npoint dot s in th e skin

. ” P etec hiae are “ caused usually by ne ck compression , ” such as str angulation

. H e said further : “ [S] h e was stran g led once. She also has other neck injuries. ” Later in his testimony, he a dmitted the possibility t hat there were two

manners of strangu lat io n
. He explai ned that “ the b ruising of the chin ” coul d have resulted from

“ somebody else ’ s hands, fingers , w e re u p under her chin pressing an d squeezing and creat ing injur y

— a type of ma n ual strangulation ” di st inct from the l i gature mark el sewhere acros s t he
neck. The chin marks also suggest ed e ithe r (1) that somebod y “ gripped an d pulled up ” her neck ; (2) t hat s he “ m i ght have bee n pressing her ch in down to t ry and remove whatever ” “ ligature or
hands ” were there, “ if sh e was n ’ t able t o reach it wit h her h and s ” ; or (3) that sh e was trying to

pu ll off “ a liga ture a round her neck ” and “ might ha ve bru ised the unders u r face o f her chi n and jaw at that point

. ”

Dr. Dolinak saw other “ signs of trauma to the body

. ” Thes e included “ br uises
und er her chin , on her upp e r c he st, on her upper extremiti es and lower extremiti es, and on
he r back. There were a lot of scattered b ruis es. ” The body had scrapes o r abra sions on “ the
f ront of her neck, ” “ over her left sho ulder , ” and “ on one of her feet

. ” The shoulder abrasion wa s

“ c ons i s ten t with being restrained w i th a seat belt

. ” Sh e a lso “ ha d a s mall bruise at the t ip of h er tong ue, ” prob a bly either becau se “ she bit her tongue ” or because “ the f orce of somebod y pushing up on he r

— on her chin and forc [ed] her tongu e
. . . between h e r t ee th. ”9 Dr. Dolinak saw e vid e nce of defensive wound s in response to an assault. Her body had bruises on the b ack of her right hand , on the side of her left upper ar m , in the inside of
h er left elbow, and o n her left forearm

. Du ring his internal examinat i on of the body, Dr. Doli nak observed other injuries c onsistent with strangulation, including hemorrhage over h er voicebox, torn hyoid bones, and more extensive petechiae. H e also saw eviden ce th at Kalaher “ suffer[e d]
brain dama ge
. ” H er unusual or dis orie nt ed be havior , as described by the employee s of the piz za

store , was “ mos t likely cau se d by a c ombinatio n of f ac tors, ” including “ low bl ood flow and, hence, oxyge n ation of the brai n du rin g a stran gulat ion event ” and “ the mental s h o ck of going through a n epis ode o f assault

. ”

Dr. Dolinak concluded that Kalaher ’ s “ inju ries were reflect i ve of str an g ulat ion

. ”
He thoug h t that “ the strang ulation and evidence of assau lt, charac te ri zed by the bruises and su c h,
it loo ked like something, y ou know, really bad had happene d t o her

. ” He testifi ed that her cause of death was a s a result of or a complication o f “strangulatio n/ass a ult. ” He also opi ned th at, “ b ut for the strangulation and assault, the de ath would n ot have oc curred

. ” A nd he testified that her
manner of death was hom ic ide and was not “ suici de , accide nt , natural deat h , [or ] unde termined

. ”

D r. Bill Smoc k , a d octo r of f oren sic medicine and a peace officer, exp lained to the jury the sequence of events for so me one being st ra ngled :
You go unconscious firs t, and that ’s be cau se your brain isn ’t getting enough oxygen ated bloo d. Then you may have a seizure. Then , at a m ini mu m of 15 sec onds,

. . . your brain cells are dyi ng , and things be gi n to happen. The first t hi ng is you lose control o f your bladder. Then, at a m inimum of 30 se c onds, you lose control of y our rectal sph incter , a nd you poop your self. And then s omew he re b e t wee n one minute and two a nd a half minutes you s t op breathing. S o th ere is a very short time li ne of how long it takes to kill the cells in your br ain for you t o d ie. Now, depending on what part of our br ain dies d epends on what we ’re going to
m anif e st; w h at a re we going to exhibit

. The last part of our b rain to die is our10

brain stem, the part tha t controls ou r breathing a nd our heartbeat. But abo ve that in th e b ra i n are things like personali ty a nd memory.

Dr. Smoc k said that this sequ ence of br a in c el l s d ying , p lus heats troke, accounted for Kalaher ’ s ab normal beha vior when the employees saw her on t he day she die d. He testified that she suf fered

“ br ain injury fro m n ot getti ng enough ox ygen when pressu r e w as a ppl ied to her nec k, ” c ausing
brain ce l ls to d i e
.

A f ter rev iewing the autopsy , D r. Smock generall y agreed wit h Dr. Dolinak ’ s findings

. He agree d on both the cause of death an d manner of death

— that Kalaher “ [ d]i ed as a result of an assault and str angula tion ” and t hat her death was a “ homicide

. ”

D r. Sm o ck noticed injuries o n her neck “ consi s te nt with

. . . [her] fingernails , ” as
if she was clawing at the ligatur e being held against her neck

. 1 He also suggested tha t t he l igature
mark on her neck w as one of “ t wo areas where pressure was applied to h er ne c k. Th e re is a third
mark on her shoulder. ” Referr ing to a demons trative cloth tie like the on e Kalah er ’ s cover
- up had, Dr. Smock testi fied that the marks on her neck f i t with a cloth tie used as a ligature to

st rangle her. The second neck mark was in a different place from the ligature mark and was

“ most consisten t w it h

. . . fingers, t humb, an d f orefing er squeezing ver s us the other t ype [, which]
woul d b e a ligature

. ” G i ven the two marks, Dr. Smock could “ clearly see tw o distinct types of

st r an gu l ation

. ” He consid ered the r esulting injuries “ intenti onally in f l icted inj u ries. ” And he opined that K al aher wo uld not have died but for t he tw o strangling methods

.

The ju ry fo un d Harmel guilty of capital murder fo r intentiona lly causing
Kalaher ’ s death b y “ ch o king , s t rangling or by i mpeding the norm al breathing or cir culation of

1 Another forensic scienti st ha d analy zed samples taken from unde r nea th Kalaher ’ s f ingernails. Th e samples contain ed material consistent with her own DN A profile , sug ge sti ng that she scrat ched her neck wh ile tr ying to f ree her airway

.11

the blood of

. . . Kalahe r b y apply ing pressure to [her] throat or ne ck or by block ing [her] nose or

m o uth with the defendant ’ s hand, hands, a ligatur e o r an u nknown object

. ” The tria l c o ur t

e ntered a judgment of conviction , sentencing Harmel t o life in p rison without the possibil i ty of

par ole. Harmel then appealed.

DISCUS S I ON

We revie w eviden ce sufficie nc y first because tha t issue c o uld lead to the g reate st potentia l reli ef

— a ju dgme n t of acqui ttal

. See Benavid ez v. State , 323 S. W.3d 179, 181 (Tex.
Crim. A pp . 2010) ; Medi na v . Sta te , 5 6 5 S.W. 3d 868, 8 73 (Tex. App.

— Houston [14 th Dist.] 2018, p et . ref ’ d ) ; Mi

x o n v. State , 481 S.W.3d 318 , 3 21 (Tex . App.

— Amari llo 201 5 , pet. r ef ’ d )

.

I. T he evid e nce was sufficient to suppor t the jury ’ s finding s that Harme l intended to kill Kalaher
. In his f irs t i ssue, H armel contends that “ the evidence is insufficient to prove [ that
he ] intentionally caus ed the dea th of the alleged vi c tim whe re it is u ndispu te d t h at she was alive when [he] left her

. ”

We review evidence

- suf ficiency chal l enges under the standar d f ro m Jacks on v. Virginia , 443 U.S. 307 (1979 ). Owens v. State , 549 S.W.3d 7 35 , 74 0 (Tex. App.

— Austin 2017 , pet. ref ’ d ). U nder th at standard, we c onsi d er al l th e evidence in th e light m ost favorab le to the
verd ict and decide whethe r any rational trier of fa c t c ould f ind the essential elements o f the offense beyond a reasonable dou bt

. Id

.

Circumstantial evidenc e is as pro bativ e as di rect evidence in est a b lish i ng an actor ’ s guilt. Id. a t 740

– 41. Circumstantial evidence alone may es t ablish guilt. Id. In circ u ms tantial

ev ide nce ca ses, each fact need no t point directly and i ndep enden tly t o the actor ’ s guilt as lo ng as12

the cumulative fo rce of all th e in c r imina t ing ci rcumstances is sufficient to support the conviction.
I d. a t 7 41.
The fa ctfinder is the sole judge of the credi bility of the witnesses and the weight

to be given th eir testi mon y. Id. The f actf inder has a right to weigh an d res olve conflicts i n the

e viden ce and to draw re asonable inferences from it

. Clay ton v. Stat e , 235 S.W.3d 772, 778

– 79 (Tex. Crim. A p p. 2007)

. Wh en th e record supports conflict ing in ferences, we p resume that th e
factfinder r es olved confl ict s in favor of the ve rdict and defe r t o t h at determi nation. Owen s , 549 S.W.3d at 741.

The type of c apital murd er charged he re r equire d the State to p r ov e that the
defendant “ in tentiona lly commi t[ted] the murder in the c ourse of c ommitting or a ttempting

t o c ommit kidnapping,

. . . robbery, [ or] a g gravated se xual assault

. ” See Tex. Penal Code § 19.03(a)(2)

. “ Capi tal murder is a result

- of

- conduct offense; th e crime i s defined in terms of

o ne ’ s obje ctive to pr oduce

. . . a speci f ie d r esult, i.e ., the death of the named decedent. ” O wens , 549 S .W. 3d at 741 (quo ting Louis v. State , 393 S.W.3d 246, 251 (Tex. Cr im. App. 201 2) ).

As charged here, a n actor “intenti o na lly ” caus e s the death of an individual if the
actor has the conscious ob jec ti ve or desire to cause that death. See Tex. Pen. Code § 6. 0 3(a)

. A n a ctor ’ s m e ntal culpability generally must be inferre d from the circumstan ces under whi ch
the prohibited act o r o mis sion oc curs. Owens , 549 S.W.3d at 7 41. “ T he specific i ntent to kill

m ay be inf

erred from the use of a deadly weapon, unles s in th e m ann e r o f i ts use i t is reasonably apparent that death or seri ous bodily injury cou ld not result. ” Medina v. State , 7 S

. W. 3d 633,
63 7 (Tex. C rim. App. 1999) ( quoting Vu o ng v. State , 830 S.W.2d 9 29, 9 34 ( Tex. Crim. App. 1992) ). A factfinder may inf e r th a t a d e fenda nt inte nds the natural consequences of his or her

acts

. Id. A factfinder ma y also infer the defendant ’ s requis i t e int ent fro m any fac ts tending to13

prove its e xi s tence, including the me th od of com mitting the crime ; the nature of the wounds
i nf l icted on th e vic tim ; and the defendan t ’ s acts, words, and conduct. Id.

I n a prosecution for c apital murder , “ the State is n o t r equ ired to prove that a
defendant should hav e anti c ipated the speci fic m et h od by which a person was killed. ” In re State

ex r e l . W ee ks , 391 S. W.3 d 117, 126 (Te x. Crim. App. 2013) (ori g. proceeding)

. “ [T]he method by w hich someone commits a murder is no t re lev ant to evaluating th e sufficiency of the eviden c e to support a c onvic ti o n. ” Id

. (citing Johnson v. State , 364 S.W.3d 292, 296 ( Te x. Crim . A pp. 2012) ). Thus, “ [t] he State could allege ‘ poiso ning, gar rot ing , shooting, stabbing, or drowning, ’ of a singl e i ndivid ual, and those di fferent acts would simply be alternate m et hods of co mm itting

a single offense ” of murder

. Johnson , 3 64 S. W

. 3d at 296 (ci ting Ngo v. State , 175 S.W.3d 738, 746 n.27 (Tex. Crim. Ap p. 200 5 ) ).

Harmel argues that the evidence i s insuff i ci ent to sup port the jury ’ s finding s that he intentionally cause d Kalaher ’ s d ea th because she was still alive w he n he left h e r
. H e says that
the St at e ’ s theory should be characte rized as “ delayed str ang ulation ” and that the Stat e was the refore “ re quired t o s how that [ Harmel ] was aware of th e concept of ‘ dela yed strangul ation ’

an d i nt en d ed to cause her death in that m anner. ” N o t s o
. Assuming delayed strangulation was the

“ method ” here, t he method by which Harmel caused Kalaher ’ s dea th is not releva nt t o ana l yz ing
the su fficiency of the evidence to support his conviction. S ee S ta te ex r el. Weeks , 391 S.W. 3d

at 126 (citi n g Joh n s on , 3 6 4 S.W.3d at 295

– 296 ). T he evide n ce may be sufficient to e stablish
that Harmel intentionally caused her de ath without nee d ing to e st ablish tha t Harmel inten ded that

“ dela yed strangulati on” be t he method b y w hi ch she w ould die.

The jury had before it evide nc e sufficient to sup port the necessa ry findings.
Harme l ad m itted that he was i n Kalaher ’ s car on the day that she die d. Surveilla n ce v ide o14

sho w ed him following her to her car. And it undermin ed his story abo ut why the two were

“ meeting ” : h e clai me d to b e me eting her because of their discuss ions on a sex website, b u t the jury reasonably could have believe d that she went to the Walmar t o nly to buy dog food and that she was then immediately g oing home because sh e had to work the next morning

. Harmel t hen

e nt ere d her Kia on the driver side, rathe r than on th e passenger side as a guest usually might

. M oreover, Det ective Acevedo ’ s review o f K alaher ’ s a nd Harmel ’ s electr onic devices supported
the reasonable infere nce t hat they ha d never interacted with ea c h oth er be fore Kalaher left the
Walmart

. The jury was free to consider the lack of connections between Kalaher ’ s and Harmel ’ s phones and t h e inconsiste ncy regar ding the screen name on the sex website

.

The conditio n i n which she was found supports the rea s ona bl e in ference that he strangled her to the point of un consci ousness an d then le ft. Dr. Smock ’ s testimony allowed the ju ry to reason ab l y infer that th e fec es stemmed f rom someone in the car being strangle d for at
le as t t hirty seconds, whic h is past the point o f u nconsciousness a nd is the po int at which
Dr. Smock said that a victim loses control of the rect al sphincter

. Harmel ’ s statem ent th at the

scene of the car was “ gr oss , ” eve n though he c ould no t have known ab out t he car ’ s condition
after he clai ms to ha ve lef t it , could reasonably be considered by the jury to be evidence of strangulation then loss of control of the rectal sphinc ter w h il e Harmel was still in the car

. Dr. Dol in ak testified that his injury f indin gs le d him to believe that a struggle h a d occ ur red. All

t h is supports the reasonable inference of a s truggle in the car that Kal aher lost , leaving her

u nc onscious

. Kalaher ’ s inj u ri es from that s truggle reaso nably su pport the jury ’ s conclusion regarding Har m el ’ s in tent to kill her

. The autopsy resul ts revea led two forms of strangulation

— by
han d and by ligature. The stra ngulation events were strong enough to break her hyoid , atypical15

of her age

. Th e y were also st rong enough to create extensive petechiae exter nal ly and internally
and leave noti c e able m arks on her ne ck

. The mar k poin t ing t o a ligature was likely mad e by a
sof t, cloth

- li ke substance, which the jury coul d reason a bly inf er w as from the m issing tie string from her cover
- u p
. Other brui ses o n her body su gg est a s truggle. And the s cr a tch es o n he r neck and the presence of her own DNA u n der her fin gern ails s uggest that sh e was c lawing a t something on or near her neck to try to breathe

. In all, it w as reas onable for the j ur y to infer that
th e person who ca use d these kinds of injuries to Kal ah er i n t e nded th a t she die.

T he reasonable in feren ces support ed by the evidence were bol stered by

c ircumstances suggestin g Ha rmel ’ s consciousness of guilt. “ A t tempt s to conceal incr iminating evidence, inco ns istent stateme nts , and implausib le expl anati o ns to t he p ol ice are probative of wrongful co nduct and are al so circumstances of guilt. ” Ex parte W einstein , 421 S.W.3d 656, 668 (Tex. Crim. App. 2014) (quoting G u evara v. State , 152 S. W.3d 45, 50 (Tex. Crim. App. 200 4 ) ).
And “ c on sciousnes s of guilt is p e rhaps o ne o f t he s tro ngest kinds of evidence o f guilt. ” Harris v.
State , 645 S.W.2d 447, 4 56 (Tex. C rim. App. 1983) (in ternal quot ation omitted).

The jury reasonab l y coul d have inferred that Harmel tried to hid e his tru ck by

a lte ri ng it and that he ga ve p olice i ncon s i st ent or misleading stories. His t imes for “ meeting ”
Kalaher changed. He sai d that he st ayed at G arcia ’ s house long en ough to shower and talk about

sev e ral topi cs , but she test ified that he was never there

. He said th at he drove up an d dow n the

ne arby gro c e r y store ’ s p arking lot looking for Ka laher t he next day , but that s tore ’ s surveill ance video suggested otherwise

.

Given all this, th e evidence wa s suff ici ent to support t he jury ’ s conclusions that
Harmel i ntention all y cause d Kalaher ’ s de a th. As a result, we overru le his first issue.16

II. Harmel ’ s argument s about charge erro r relati ng to the intentional and knowing mental states are not grounds for rever sal.
I n h is second issue, Harmel contends that he was harmed by the tri al court ’ s alle gedly erro n eo us “ fail[u r e] to inc lude the correct definition s of the culpable mental st ate in t he
abstrac t portion of the charge

. ” He a rgues th ree alleged erro rs: (1) T he charg e ’s def inition of “intentionally causin g the d eath of an indiv idu al ” did n ot match t h e sta tu tory defini t io n of an

actor ’ s intentional ly caus ing a resul t of the actor ’s conduct

. (2) T he cha rge failed to define t he
in tentional men tal state a ppli cable to th e aggravating felonies of kidnapping, ro b bery, and aggravated se xua l ass ault, which th e Stat e charged as s up porting capital mur der

. (3) T h e charge
did not defi ne “ know ingly, or with knowledge, ” anywhere.

We review claims of charge error under the test fr om Almanza v. State , 686
S. W.2d 157, 1 7 1 (Tex. Crim. App. 198 5 ) (op. on reh ’ g)

. Se e Ngo , 175 S.W.3d at 74 3

– 44

. We
firs t d eterm in e whether erro r exists, the n we evaluat e the harm , if any, cau s ed by th at error
. Id. at 743

.

A. D e

finition of “

intenti o na lly causing th e d eath of an ind

ivid ual ” The jury charge defined “ intentionall y c ausing the d eath of an indiv idu al ” : “ A

person intentionall y causes the death of an i ndividual if the p erson h as the conscious objective

or desire to cause that death

. ” By co n tr ast, Penal Code se ct ion 6 .03(a) says, “ A p erson acts intentionally, or with i ntent, wit h r es pec t to the nat ure o f his conduct or t o a resu lt of his conduct
when it is h is co nscious objective or desire to engage in the conduct or cause t he result. ”

Harme l ’s o bjection, in eff ec t, is that the char ge ’ s definition of “ intention ally

caus ing the de ath o f a n individual ” wa s m issing the words “ engage in the conduct , ” which is
often called “ nature of cond uct

. ” A “ n a ture of conduct ” offense is distinct from a “ result of17

conduct ” offense. C ap ita l mu rder is a “ r e sult of conduct ” of fense. Ow ens , 5 49 S.W.3d at 7 41 (q uo ting Lou is , 393 S.W.3d at 251 )

. The St ate must prove that the capital

- murder defendant
inte n de d to cause the victim ’s death and not s imply that the defendant intended t o e ngage in t he

co nd uct that resu lted in the victim ’ s death

. See id

.

Had the ch arg e ’ s def

inition included the languag e from Se ction 6.03(a) that
Harme l c omplains is missing

— inten ding to engage in certain co nd uc t

— i t w o u ld h ave allowed the jury to con vict hi m f

or a ment al state that is ins uffi cient to suppor t a c apital

- murd er convict io n.

“ C apital murd er is a result

- of

- con d uct offe nse; a jury charge which defines ‘ intentionally ’ as i t

r el ates to the nature of conduct as well as the result of conduct is, theref or e, incorre ct. ” Me dina , 7 S.W.3 d at 639. As a result, this was not a n erro r in th e charge.

B. No “

i ntentional ” de

finitio n relat in g to the aggravating fel onies of kidnapping, robber y , and aggravated sexual assault
Harmel ar gues that “ no definition f or ‘ intent io nally, or wit h inte nt ’ was given for the underlying felonies

. ” T h e jury ch arg e lacked a gener al defin ition of the int entional mental

state in the abstr ac t portion of the charge

. E lsewhere, t here were abstract de finitio ns relatin g to kidnapp ing, robbery, an d ag gravat ed se xual assault

. Th e State needed to prove on e of the se
ag gr ava t i ng feloni es as part of its pro of that Harm el committed capital murder. See Tex

. Penal
Code § 19.03( a )( 2); Patrick v. Stat e , 906 S.W.2d 481, 4 92 (Te x. Crim. App. 1995) ; Riley v.
St ate , 447 S .W. 3 d 918, 922 (T ex. App.

— Texarkana 2014, n o pet. ) ( “ [T ] he el eme nt s of the

u nderlying felony are necessary el ements in pro ving capital murder. ” )

. W hen a capital

- murde r j ury charge fails to define the ag gravat ing fe lonies necessa ry to support a co nviction f or ca pital
murder , th e charge has “ o mit t[ed ] an ele m ent of t he of fen se ” and is therefo re erroneou s. Riley , 44 7 S.W. 3 d at 923 (citing Olivas v. State , 202 S.W.3d 137, 1 43 (Tex. Crim. App. 2 006) ). To18

supp or t a convic tion, “ the jury must be unanim ou s in findi ng ev ery constitu ent element of the charged of

fense

. ” J ou rda n v. State , 428 S.W.3d 86, 94 (Tex. C rim. App. 20 14)

. The application portion of the jury charge, because i t “ specifies the factual
circumstan ces un der wh ich the jury should convict or a cquit,

. . . is the ‘ heart and s oul ’ of the ju ry char ge. ” Vas q ue z v. St ate , 389 S.W.3d 361, 367 (Tex. Cr im. App. 2012 ). It is the application portion of the charge, not the abs t r a ct portion, tha t authorizes a con victio n , and we “ look at the

wor ding of th e applicatio n p ar agraph[s] to det e rmine whether the jur y was co rr ec tly i nstruc ted in

acc ordance wi th the indi c tment. ” Yza guirre v. State , 394 S.W.3d 526, 530 (Tex. Crim. A pp.
201 3 ). A jury charge is adequate

if it either con ta ins an application p aragraph s pe ci fying al l o f the conditio ns t o be met before a conv iction

. . . is authorized, or co ntains an application paragraph a uthorizing a conviction under conditions specified by oth e r paragraphs of the jury charge to which the ap plication paragraph necessar il y and unambi guo us ly refers, o r co ntains some log ically consiste n t c o mb ination of such pa ragraphs

. Delapaz v. State , 228 S .W.3d 183, 212 (Tex. App.

— Dallas 2007, pet. ref ’ d ) (quoti n g Plata v.
State , 926 S.W. 2d 300, 3 04 ( Te x. Cri m. App. 1996 ), overr uled on ot he r grounds , Ma li k v. State , 953 S.W.2d 234 (Tex . Crim. App. 19 9 7 ) )

.

I f “the application portion essentially tracks the indictment ” and properly instr ucts

t he jur y, then there is no error i n the c harge. See Martin v. Stat e , 2 52 S.W.3d 809, 814

– 15 (Tex. App

. — Texarkana 2 00 8 ) , p et. dism ’d as improvident ly granted , No. P D

- 080 7

- 08, 2009 WL 949074 (Tex. Crim. App. Apr. 8, 2009)

. “ [F] ailure t o give an abstract instr uction is reversible o n ly when

su ch an instruction is necessary t o co rrect or comple te unde rstand ing of concepts or t erms in the application part of the char ge
. ” A rt ea ga v. State , 521 S.W.3d 329, 338 (Tex. Crim . App. 2017)19

( quoting Plata , 926 S.W.2d at 302 ) ; War field v. State , 9 74 S.W.2d 269, 271 (Tex. App.

— San
Antonio 1998 , pet. ref ’ d ) ( also qu oting Pla ta )

.

Harmel arg ue s that t he cha rge failed to define t he a ppl ic a bl e intentional mental

state as it relates to proving each of the aggravating felonies of kid nappin g, robbery, and

a gg ravated sexua l assault

. As to rob bery an d ag gravated sexua l assau lt, this i s untrue. T h e

a bs tract portion of the charge de fined robbe ry :

A p er son commits ro bbery if, in the course of committing theft and with intent to obtain or ma intain control of the p ro perty , the pe rson either : 1. intentional ly, knowingly, or recklessly causes bodily i nju ry to anoth er; or 2. intentionall y or knowingl y thr ea te ns or places a nother in fear of imminent b odily injury or death.

. . . . “Intentiona lly causing bodily in jury ” me ans t hat it i s the perso n ’s conscious ob jective or desire to cause t he bodi ly inju ry to a n ot her.

. . . . “Intentionally t hreaten ” me an s t ha t the person has the conscious objective or desire to engage in conduct constituting a thre at.

. . . . “Int entio n al ly pl ace in f ear ” means the person has t he conscious objective or de sire to place th e o th e r person in fear.
Similarly, t he abstract p or tio n of the c harge a ls o de fined aggravated se xual assault:

A person commits the offense o f sexual assau lt if t he perso n i ntention ally or knowin gly

-

a. c a uses the penetration of th e anus or sexual organ of an oth er p erson by any me ans withou t that person ’ s con se nt ;20 b. c auses the pen etration of the mou th o f another person by the sexual organ of the actor, wit hout th at perso n ’s consent ; or

c. causes the sexual organ of another perso n , w i thout that per son ’s consen t, to contac t or penetrate the m outh, anus, or s exu al o rgan o f another per son, including the acto r.

. . . . A person commits the offense of aggravated sexual assault if the per son commits Se xual Assault, as defined above, an d

a. causes serious bodily inju ry to anoth er; or b. uses or exh ibits a deadly w eap on d uring the commi ssio n of the assault.

“ Inte ntionally causing penetration ” means the person has th e consc ious obj e ct ive or d esire to cause the penetration.
The application portion of the char ge asked the ju ry to “ de termine whether the State has prov ed , b ey on d a reasonable doub t, ” that Ha rmel intentionally caused Kalaher ’ s death

“ in the co urse of com mit ting o r attempt i ng to commit Kidnapping, Robbery, or Agg ravat ed
Sexual Ass ault. ” The se applic ation instru cti on s “ nece ssarily and u nambiguously refer[r ed ] ” t o th e prec edin g definition s of those felon ies. See Delapaz , 228 S.W.3d at 212 ( quoting Plata , 926 S.W. 2d a t 304 )

. T h e i ntent definitions acc ompanying robber y and a gg ravated sexual ass ault

appro priately com ple te d the j ury ’ s understanding of the appl ic ati on para graphs for those two
f eloni e s
. See Art eaga , 521 S.W.3d at 338 ( quoting Pl at a , 926 S.W.2d at 302 )

. T hu s , the c harge
contained no error as it relates to th e intentional mental state specific to proving ro bb er y or aggravated sexual assault. See i d. ; Ma r tin , 2 52 S.W.3d at 8 14

– 15

.

W hen the abstract portion of the charge defined kidnapping, however, it omitt ed

an y d efi n it ion of the intentional menta l state specific to p roving that offense :21

A pe rso n commits the o ff en se of ki dnap pi ng if he intentiona ll y o r k n owingl y abducts another perso n. “Abdu ct ” means to restrain a person w ith the intent to prevent his liber at ion by e i t he r secreting or holding him i n a place where he is not likely to be found o r u sing or th rea te ni ng to use dead ly force.
Crucially, ho wev er, Harmel i nvi ted this omission

. In his objections to t he jury charge, he argued
that an “ en tire section entitle d ‘ Def i ni tions ’ shou ld be omi tted be cause :
. . . [t]he definitions of

‘ I ntentionally r estricting an ot he r ’ s movements, ’ ‘ knowingly restric ti ng an o th er ’ s m ov ements ’ and

‘ Int ent t o prevent liberation ’ a re not statutory definitions and se ek to add some sort of appli c at ion languag e. ” At th e charge conference, the trial court sustained this objec tion in pa rt :

[ T] he request tha t the ent ire sectio n of def ini tions be [o] mitt ed, that ’s

— th at is denied; howev er, we are goi ng to modify and change the definitions of

“ kid nappin g
. ” We ’re going to leave the fi rst initial se nte nce under kidnapping on page 7 o f the Stat e ’s p ro posed charg e.
. . . The definit io n o f “ abduc t ” wil l rema in. The definitio n of “ restrain ” and “ restraint without consent ” all the way through page 9 of th e defi n it ion of “ intent t o prevent li beration, ” all of that will be stricken from the charge.

Th us, i t was at Harmel ’ s request that th e tri al court remov ed the def inition of th e intentional

menta l state specific to proving kidnappin g
.

“[I]f a party affirma tively se eks act ion by the trial cour t, that par ty can not later

conte nd that the actio n was erro r.
. . . [T]he law of invited error e st ops a p arty from m ak ing an

a ppellate erro r of an action it i nduced. ” Druery v. State , 2 25 S.W.3d 491, 505

– 06 (Tex. Crim. App. 2 0 07 ) (quot ing Prystash v. State , 3 S.W.3d 522, 5 31 (Tex. Cr im. App. 1999) ) , habe as corpus den ie d sub nom. Druer

y v. Thaler , 64 7 F.3 d 5 35, 545

– 46 (5 th Cir . 20 1 1)

. When inv ited error applies to an appellant ’s jury

- char ge complai nt , an appellate cour t s hould n ot review the complaint for er ror in the char ge or for whether any error harm ed the appel lan t. S ee id. at 50622

( “ Because Dru er y i s e stopped f rom br in ging thi s charge

- erro r claim on appeal, we do not address
whether t he omissio n of and failure to sua spont e gi ve the les ser
- included instr uction was

errone ous or amounted to egregious har m
. ”).

Beca use H ar mel requested that the tria l cou rt remove t h e defi ni tion s of
mental state s spe cific to provi ng kidnapping , he canno t now complain that “ no definit ion for

‘ inte n ti onally, or wit h intent ’ was giv en f or the underlying felon [y] ” of kidnapping. Thus,
Har mel i s estopped from making an ap pe lla te error of h i s cha rge co mpla in t about the intentional
mental state a s i t relates t o kid napping

.

C. N o g eneral “

k n owing ” definition
Fi nall y, Harmel arg ues that the charge erroneously “ fail ed to instruct the jury on the de fin it io n of ‘ knowingly or with kn ow led g e ’ ” anywhere

. Harm el is correct that the charg e contai ned no abstract general definiti on of the k n owing mental state

. But if th i s had been in the charge, it woul d have lessen ed the burden of proof re quired o f the Stat e
. Ha rm el was indicted
and tri ed fo r i ntentio nally causin g K alaher ’s death in the course of committi ng or attempting t o commit one of the t hree aggravating felonies

. S ee Tex. Penal Code § 19.03 (a)(2)

. Thus, the charge contained no error by omitti ng the k nowi ng me n t al state as it rela te s t o p ro ving capi t al

mu rde r
. See Alvarado v. S tate , 912 S. W.2d 199, 216 (Tex . Crim. App. 1995) ( “ Appellant was indicted for the intentiona l c apital murder of Carmen Sustaita under Texas Penal Code § 19

. 03(a)(2)

. Thus , the trial cou rt e rred in instructi ng th e j ury that it c o uld f ind ap pellant guilty
of her capital murder if it foun d merely that appell ant knowin gly caused her death during the

c ou rse of robbery. ” ( emphas e s in original ) )

.23 A s to kidnapping, H armel is estop ped by the i nvi te d

- error doctrine fo r the sa me

r e asons as expla in e d a bove

. The trial c ourt removed all the definitio ns involving mental states
spe cific to kidn apping at Harmel ’ s r eq uest.

As to robbery , the charge in s tructed the jury:

“ Knowingly cau sing bod ily in jury ” mea ns t hat the perso n i s awa re th at th e perso n ’s co ndu c t is rea sonably certain to cause the bodily injury to anot her.

. . . .

“ Knowin gly threaten ” means the person i s a ware th at th e person ’s conduct con s ti tutes a threat.

. . . .

“ Know ingly pl ace in fear ” me an s the person is aw ar e t hat the person ’s con duc t i s r eas onably certain to cause fear in th e ot her.
The charge therefore was not mi ssing the relevant definition s o f t he knowing mental stat e specific to proving robber y
.

An d for aggravated sex ual assa ult, th e c h arge instructed th e j ury th at

“ ‘ [k] now i ngly c aus in g penet ration ’ me ans the pe rso n is aware that his conduct is reasonably

cer tain to cause that penetration. ” T h e charge ther e fore was not missing the relevan t definition

o f the knowing me n tal state sp eci fi c to proving aggr av a te d s exual a ssault.

As wit h th e intentional mental state, the charge ’ s application paragraphs asked
the jur y to “ determine whether the State h as proved, beyond a reasonab le doubt, ” that Harm el intentionally caused Kalah er ’ s deat h “ in t h e course of com mi tt ing or attemp ting to commit
Kid na pping, Robbery, or Agg ravat ed Sexual Assault. ” The se i nstruct ions “ necessarily and

u n ambiguously refer[red] ” t o the preceding definitions of those felonies. See Delapaz , 228 S.W.3d

at 212 (qu ot ing Pl ata , 92 6 S.W. 2d at 3 04 )

. Th e “ knowing ” definitions acco mp anying robber y24

and a ggravated sexual ass au lt appr opriately completed the jury ’ s understanding of the appl icat i on pa ragraphs for robber y and aggrav ated sexual assault

. See Arteaga , 521 S.W

. 3d

at 338 ( quo t i ng Plata , 9 26 S .W. 2d at 302 )

. T hu s , the c harge con ta ined no error as it relates to
the knowing ment al state specific to proving robbery or aggravated sexual as s au lt. See id. ;
Martin , 252 S.W.3d at 814

– 15

.

For all these reasons , we ov e rrule Har mel ’ s sec on d is sue.

III. Harm el fa il e d to object when the Stat e offe re d extraneous - act ev idence , so the trial court h ad no obligation to include his requested instructions in th e j ury charge
. In his third is sue , Harmel c on t ends that the jury cha rge sho uld h ave in cl ud ed
li miti ng instru ct ion s a bout Rule o f E vidence 404 (b) an d the burden of proof for evidence of

ex tra neous act s. He sa y s that the extraneous act s about which the S tat e o f fered ev ide nce were tha t he “ lie d to police, a voi ded a sec ond in te rview with police, an d l ie d to three w it nes se s
. ” He

arg ues that he prese rved e rr or through his proposed jur y charge , his written objection s to
the char ge , and his oral objection s during the cha rge confer ence
. B ut he does not i denti fy a ny obj ection when th e e v idence w as of fer ed d u ri n g t he gui lt

– in noc ence pha se of the t r ia l , and we ha ve not found any such ob jection in the r ecord

. T he S tate ma y offer “ [ e]vidence of a crime, wro ng, or other act ” in l imit ed

c i rcumstances

. See Tex. R. Evid. 404(b )(1 ). The S t ate should n o t o ffer this evi de nce “ to pr ove a
per son ’ s ch aracter in order t o show th at on a particular occasion the pers on acte d i n accord anc e with t he character. ” Id. But it m ay o ffer it “ for another purpos e , such as proving motive ,

o pportunit y, intent, prep a ration, pl a n, knowled g e, i den t it y, ab sen ce of mistake, or la ck of
accide nt. ” T ex . R. Ev id. 404(b) (2 ). T o be admi ssi ble, the evidence m us t also be “ r elev a nt to a25

mate rial issue in the case , ” and its “ pro b a tive valu e ” must not be “ si gnificant ly outw eighed b y its pr e ju d icial effe c t. ” Seg u n do v. Sta te , 270 S.W.3d 79, 8 7 (Tex. Crim . App. 2 008).
W hen properly reque sted b y defense co unsel, the tri al court must give the j ury a limiting instruction a bout both (1) the p roper purposes of evidence of extraneous a ct s and (2) t h e
S tate ’ s bur d en o f p r o of

— bey ond a re asonab le doubt

— when offerin g e vid en ce of extr a neous

a ct s. See Delgado v. Stat e , 235 S. W.3d 244, 251 (Te x. C rim. App. 2007)

. Absent a timely objection , th e evi dence may be admit ted for a ll purposes, ra t her than for m ere l y R u le 4 04(b ) ’ s
li m it e d pu rpo s es:

[ I]f a defen dant does not requ est a l i mit i ng instruction under Rule [of Evidenc e] 1 05 at the tim e that evidence is admitted , the n t he trial judg e has no obl igati on to limi t the us e of that evidence later in the ju ry ch arg e
. . . . Once evi de n c e h a s bee n adm i tted without a limiting instr uction , it i s part of the general evidence and ma y b e used for all purpos es.
Delgado , 235 S. W .3 d at 251

. T he Court of Crimin al Appe als has t h erefore reasoned that gu ilt

– innocence ch ar ge i n s tr u ct i ons about R ul e 4 04( b) and about the beyond

- a
- reasonable

- dou bt
burde n of p ro of for extraneous act s are req uired only if the defense objected when th e evidence
was offer ed

. “[ A] li miting instru c t ion ” under Rule 404(b ) “ should be reque st ed , an d gi v e n, in

t he guilt

- s tag e j ur y c h ar ge on ly if the defendant reque sted a l im it ing in s tru ction at th e tim e the
evidence w as first ad mit ted. ” Id. “[A ] defendant is entitle d to limiting i nstru ct io ns o n the use of

extraneous offenses during the gu ilt phase only i f he tim e ly re quests t h o s e i nst ruction s when
th e ev idence is first int rod uced. ” I d. at 253. A n d eve n when a Rule 404(b) l imiting i nstru ction
woul d be proper to giv e, the trial court h as “no duty to includ e on e in the jury charge for the gui lt phase [when] appellan t f

a il [s ] t o r e qu e s t on e at the time th e ev idence was off ere d. ” I d. a t 25 4.26 Th is is t rue for the burden

- of

- proof instruction for e xtr aneous act s too

. W hen the
tri a l judg e ’s duty to give a Rule 4 04 (b) limiting i n struction is not trig gere d , “ i t natur ally fol l ow s that h e h ad no dut y to in struct the jury on t he burden of pr oof c o nc erning an extraneous offen se ”
either. Id. at 254

.

Based on Delga do , we hold that t he la ck o f an y timely obj ection w hen the

ev idence was offere d coupled with the lack of a ny request for an instr uc ti o n w h en t he e vidence
was admitted is fata l to H a rm e l ’ s j u r y
- c harge complain t on ap peal. Though th e defendant in Delgado fai l ed to object when the evidence was offered , failed to request a limiting instruction
when the evidence wa s admitted , an d f ailed t o o bje c t to the charge, it was the fai lure to obje c t o r

re qu e s t a limiting instruction t hat forfeit e d hi s jur y
- charge compla int

. Seve ral of our sister co ur ts
have hel d t he s ame
. See Ryder v. Sta te , 514 S.W. 3d 39 1, 402

– 03 (Te x. App.

— Amarillo 2017,

pe t. re f ’ d ) ( “ [ I] n th e ab sence of a r equest for a limiti ng i ns t ructio n made when the evidence is
adm itted , . . . the court has no obl iga tion t o include s uch an in struction in th e j ur y charge. ” ) ; Iriel le v. State , 44 1 S .W .3d 868, 8 80 (Tex. Ap p.

— Houst on [14 th Dis t. ] 2 01 4 , no pe t

. ) ( “ [W] he n Etha n testified about t he f ou r alleg e d ‘ other wrongs or acts, ’ appe llant did not request a li miting
ins tructi on. Accordi ngly,

. . . the eviden ce wa s admissible for all pu rposes; and the t rial court
h ad no dut y to inc lude a Ru le 404 (b) limi ting instr uction in the charge. Bec aus e t h e tria l court had no duty to gi ve any limi ting instruction conc erning ext raneou s offenses in the ju ry charge, it

n a tu ra lly follows that t he court had no du ty to limit th e jury ’ s use of ‘ other wro n gs or ac t s ’

ev iden ce
. ” ) ; Russe l v. State , 425 S.W.3d 462 , 4 6 7 n.3, 4 68 (Te x. Ap p.

— Houston [1st Dist. ] 2012, pe t. ref ’ d ) ( reason ing that defendant ’ s fai l ure to object and to “ i mme diately requ est a limiting instructio n ” for ev idence of prior fel ony convi cti o n mea n t t hat d ef en dant was not
entitled to related limit i ng inst ru c t i on in “ guil t

- sta ge charge, ” unde r Delga do ) ; Sala zar v. Stat e ,27

330 S. W.3d 366, 367

– 6 8 (Te x. App.

— San An toni o 2 010, no pet. ) ( “ H ere, when the eviden ce was fi rst admitted appel la nt did n ot r eq ues t a n in st ruct ion that the extr aneous acts must be

c o ns i dered o n l y for the p urpose for which they are of fer ed; th erefore, he was not entitled to suc h
a l imiting instructio n i n the jury c har ge
. ” )

.

Also, “ [ b ] ecause the trial ju dg e had no duty to g ive an y l i mi tin g in st ruct ion
concernin g the use of an extraneou s o f fense i n th e guilt

- p hase jury charge ”

— because Harmel did
not request an in stru ction or object when the ev i dence was admitt ed

— “ i t na turally follows that [the judge] had n o d uty to instr uct t he jur y o n t he b urd en of proo f concerning an ex traneous

o f fense

. ” S ee Del g a do , 235 S.W. 3d at 254. We therefore hold that the trial court had no d uty to give the r equested b urden

- of

- proof in str uction in the jury ch a rge
. As a result, we o v er rule
Harmel ’ s t h i rd i ss ue.

IV. Th e wa rra nt s to searc h Harmel ’ s ce ll phones were suffi c ie n tly pa rt icular , and the search was timely
. In h is fourth is sue, Harmel contends that the trial cou rt abused its d iscretion in denying his motion to suppr ess evidence obtained fr om two c ellphone s
. H e a rgues t h a t the phones were not adequately described in t he war ra nts issued to search them and because one of those two warrants was not timely executed.

W e review a trial court ’s ru ling on a motion to s uppress for an abuse of discretion , giv ing a t ri a l cou rt al mo s t comp lete defe rence to its “ru ling s on applicat io n of t he law t o questions
of fact and to mi xed questions o f law and fact , if re solution of those que stions depends on an

ev aluation of cred i b i lity and demeanor. ” Arguelle z v. State , 409 S

. W .3 d 6 57, 662 ( Tex

. Crim

. App. 2013) (quoting Crain v . State , 315 S.W.3d 4 3, 48 (Tex. Crim. App. 2010)). “[F ]or mixed questions of law and fa c t that do not fall within that category, a reviewing court may c onduct a28

de novo revi ew. ” Id. (quoting Crain , 315 S .W. 3 d at 4 8 )

. Whe n the trial court d oes not make

exp ress fact fin dings , w e must view the evidence in the li ght most favorable to the trial c o urt ’ s rulings and assum e that it made impli cit fact findings tha t find support in the record

. Id. We
sustain t he tr ial court ’ s de cis io n if it is correc t on any applica ble the ory of law

. I d

. at 662

– 63.
T he Fourth Amendment mand ates that “ no W arrants shal l i ssue, but upon probable cause, supported by O ath or affirmati on, and partic ularly des cribing the place to be

se arc hed , and t h e pe rso ns or things to be seized. ” U.S. Co nst. amend. I V. The A me ndment ’ s

“ p articularity requirem ent ‘ assures the in dividual who se property is s earched or seized of the
lawfu l authority of the ex ecuting officer, his need to search, and th e lim its of his p o w e r s to

s earc h. ’ ” Bonds v. State , 403 S.W. 3d 867, 874 ( Tex. C ri m. App. 2013) ( quoting Groh v. Ram i rez , 540 U.S. 551, 561 (2004) )

. T he requirement serves the goals of

(1) ensu ring that the officer searches the right p lace; (2) confirming t h at pr obable caus e i s, in f

act, established for the place de scribed in th e warr an t; (3) limiting the officer ’ s dis c retion and narrowin g the scope of his search; (4) minimizing the danger of mi stakenly searching th e person or property of an innocent bysta nd e r or proper ty ow n e r ; and ( 5) i nforming the owner of the off icer ’ s author ity to s ea r ch that specific location

.

Id. at 874

– 75 ( ci ting L ong v. State , 1 32 S.W.3d 443, 447 (Tex. Crim. App. 2004) )

.

“ A warrant is suffic iently particular if it enables the offic er to lo cate t he pr o p e rt y

a nd dis tinguish it f

rom other places in the commu nity. ” I d. at 875

. “ [ T ] he Fourth Amendment
does not require p erfec tion in t h e war r ant ’ s descrip t ion of the place to be searched. ” Id. A

warr ant descriptio n of th e items to be se ar che d o r seized i s suf f i c ie ntl y part icular if it provides enough specifics tha t the of fi cer executing the war rant will “ reasonably know wha t items are to
be seized. ” Porath v. State , 148 S.W.3d 402 , 410 (Tex. App.

— Hous ton [14th Dist.] 2004 , no pet. ) (cit in g U

nit ed States v . Lay n e , 4 3 F .3 d 12 7, 132 ( 5th C ir. 1995 ))

.29 Abse nt e xceptiona l circ um st ances not present here , w hen the State seeks to sea rch
a cell ph on e pursuant to a lawful arrest, it must obta in a warrant that, amo ng other things,
ide n tifies the cell ph one to be searche d and st at es th e na me of its own er or possesso r
. See Tex.
Cod e Crim

. Pr oc. art. 18.0215(a), (c)(2)

– (3), (d).

Harmel firs t notes th at a b lack Samsung model S GH

- T919 cell phone of his was searched

. The ph one was firs t seized when Harmel w as arres te d , and it s tayed in t he Ce dar Park
Police D epartment ’ s evidence room for sever al years bef ore Det ectiv e Acevedo se arch ed it

. The
warrant described the phone as belonging to Harmel ; located in the evidence room ; a nd as

“ Black Samsung model : S GH

- T 91 9, SSN : T919GSMH, S e ri al N um be r: R3 TQA8 3939M, IMEI :
354321/02/144880/0. ” Harmel a dm its th at all of this information accurat ely desc r ibes his phone,

sa ve for the serial number, which is actually “ R3TQA 6 3939M, ” replacing th e “ 8 ” with a “ 6. ”

This w rong di g it in th e warrant mean t that it s des cr ip t i on of the pho ne was not perfect, but it di d not ha ve to be. See Bonds , 403 S .W.3d at 875

. We h old that t he warr ant ’ s

accurate descriptions of t he phone ’ s location ; owner; color ; manu fac turer; and model, SSN , and IM EI num bers together per mitte d l aw en fo rcem ent to reason ably locate the phon e to be

s earche d and to distingui sh it from other s. See id. at 874

– 75; Porath , 148 S.W.3d at 4 10

. And

we hold that the single

- digit change in the ele v en
- char acter serial number, w hic h w as otherwi se in th e corr e ct c h ar ac ter sequ ence, did not make th is warrant ’ s othe rwise

- ac curate des cription
in sufficiently particular. Cf. Graves v. S tate , 336 S.W.2d 156, 158 (Tex. Crim. App. 195 9) ( reasoning that “ discr epancy b etween the descript io n o f t he missing radio and the r ad io

re co vere d from appell ant because th e letter appear ing be fo re the se r ial number on the invoic e was not on the radio reco vered ” did not u ndermine conclusion that radios were one and the30

same b ecause a ppellant told offic er th at rad io belonged to co m plai n an t and “ came from the

sam e stock ” ).
Har mel next notes a simi la r prob le m with a b row n/ b lack Samsu n g cell phone of
his that th e St ate seized from him several years earlier , upon his arrest , a nd lat er s earched

. The
search wa rr ant id entified th e phone as belongin g t o Har me l; being in the C edar Park Police Depart ment ’ s e vi dence room ; and as “ Brown/Black S amsun g, Serial Number: R1Y 852316 6Z,
IMEI: 355795/01/5979 66/9

. ” This information also accurately des cr ib e d the partic ular pho ne , s ave for (1) inaccurately su bstitut i ng a n “ 8 ” in the serial nu mber when t he actual n umber c o n ta ined an

“ S ” at that pos ition in the el even
- character sequence and (2) inaccurately substituting a terminal

“ 9 ” in the IMEI number when t he a ct ual number cont ai ned a “ 5 ” at th at position i n the
fif t ee n
- num be r sequ ence. Even though this warran t has these t wo errors , w e reach the same
conclusions here as we did with the b l ack Samsung

. We hold tha t the warrant ’ s description f or th e b rown/

b lack Sams ung , including i ts own er and wher e it could be found , w a s su ff i ci ently

par ticular under the governing st and ards

. Se e Bo n ds , 403 S.W.3d at 874

– 75; Porath , 148 S.W.3d

at 410 ; c f. Gra ves , 336 S.W.2d at 158

. Fin ally , Harmel argues that the search pursuant to the w arrant fo r the b l ack Samsung phone was unt imely bec a us e it “ w as not executed w ithin three days as requi red by ”
Code of Crimin al Procedure a rticle 18. 06(a). The phone was orig in ally seized from Har me l when
he was arrested in 2009 , and Harmel doe s n ot challenge that s eiz u re
. The phone r emai ned in th e evidenc e r oo m s in ce then

. The warr ant he challenges was issued in 2 01 8.

Si nce September 1, 2011, Code of Criminal Proced ure article 18.07(c) has provided for a special warrant

- effective ness p eriod for wa rrants to searc h cel l ph ones:31

If a warr ant is issued to searc h f or an d seize data or inf

ormation contained in o r on a
. . . cel lular telephone

. . . , the warr ant is consider ed to have b een executed withi n the time allowe d under Subsection (a ) if the device was seize d bef or e t he expiration of t he time allow ed. Notwi t hs ta ndi ng any other law, a ny data or information contai ne d in or on a device seized may be recove red and analyze d after the expiration of the time allowed unde r Subsection (a).

Act o f May 25, 201 1, 82 d Leg ., R .S ., ch. 77 2, §§ 1

– 3 , 20 11 Tex. Gen. Laws 1803 , 1 80 3

– 0 4

. Here, the warran t at issue was signed b y a ma gi st ra te on Janu ary 12, 2018

. Det ective Ac e vedo
testified that he rec eived both the signed warrant and the ph one to be search e d also on
Janu ary 12 , 2018

. But th e phone itself was originally s eized in 2 00 9

. Un de r Article 18.07(c ) , then, the search pursuant to t his warrant was not untimely.

For all these reasons , we o verr ule Harmel ’ s fourth issue.

CONCLUSION
We affirm th e trial court ’ s judgment o f c onvicti on
.

__________________ _________________ _______ Cha ri L. Kelly , Ju s tice
Before Justices G ood wi n, Baker , a n d K e lly
Aff i rmed
F ile d: February 26, 2020
Publis h