Opinion issued December 2, 2021.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-19-00982-CR

———————————

RAYMOND GENE LAZARINE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1411997

MEMORANDUM OPINION

A jury found appellant Raymond Gene Lazarine guilty of murder and assessed 

his punishment at seventy-five years’ confinement and a $10,000 fine. In four 

issues, Lazarine argues (1) Texas Government Code Section 74.056(a) is

unconstitutional as applied in his case, (2) the jury charge improperly allowed for a 
2

non-unanimous verdict because it did not require the jury to agree on the statutory 

definition of murder it believed Lazarine committed, (3) the trial court abused its 

discretion by denying his motion for mistrial after the prosecutor called him a 

“monster” during her opening statement, and (4) the trial court erred by failing to 

inquire as to his ability to pay a fine and court costs before assessing a fine and court 

costs against him. 

We affirm the trial court’s judgment.

Background

At approximately 11:30 a.m. on December 18, 2013, Raymond Gene Lazarine

(“Lazarine”) shot his wife Deborah Lazarine (“Deborah”) six times, including twice 

in the face. Lazarine then called the couple’s adult son, Nathan, and confessed to 

shooting Deborah. Nathan immediately drove to his parents’ home where he found 

his mother lying dead on the living room floor. Lazarine was arrested right after. 

When he saw his father at the police station later that day, Nathan told Lazarine that 

“he was a monster and he was going to hell.” Officer M. Holbrook with the Houston 

Police Department testified that when she escorted Lazarine to the interview room 

at the police station, Lazarine told her, “[T]hat’s my son right there, I killed his 

mother, he’s right, I’m a monster, and it’s all a dream.” 

At trial, Lazarine’s son, Nathan, testified his father was an alcoholic who 

would go to the liquor store down the street every morning at 10 a.m. According to 
3

Nathan, Lazarine would get “intoxicated, take whatever kind of pills he could or 

whatever he had. And by 12:00, he was very much intoxicated and then usually just 

passed out by 2:00 or 3:00 every day.” Nathan also testified Lazarine had been 

verbally abusive towards Deborah for most of their marriage. He testified his mother 

moved to his house for three months in 2012 because she felt unsafe living with 

Lazarine. Nathan testified that Lazarine would call his home and leave “voicemails 

. . . saying he was going to kill [Deborah]. You know, he had guns around the house 

all the time and would say that.” 

Nathan’s sisters, Krysta and Casey, echoed similar sentiments about their 

father’s addiction and abusive nature.1 Besides being verbally abusive towards 

Deborah, Krysta testified that when she was in high school, she saw Lazarine 

holding a gun to her mother’s head, and Casey testified that she saw Lazarine 

punching her mother in the head on a separate occasion. Casey testified Lazarine 

threatened to kill Deborah if she tried to divorce him, and Krysta testified Lazarine 

regularly threatened to shoot Deborah. All three children testified that Lazarine was 

controlling and manipulative towards their mother. 

Lazarine did not deny shooting and killing Deborah. Rather, his defense at

trial was that he shot Deborah while he was asleep. Lazarine’s expert, Jerald 

Simmons (“Simmons”), testified that he diagnosed Lazarine with REM Behavior 

1 All three siblings were in their 30s and 40s at the time of trial. 
4

Disorder, a sleep disorder where a person physically acts out his dreams, and 

Parasomnia Overlap Disorder, which he described as a combination of sleepwalking 

and REM Behavior Disorder. Simmons opined that Lazarine’s behavior the day of 

the shooting was consistent with his diagnoses, and he testified that it is “possible” 

for someone with Lazarine’s disorders to pick up a gun, walk to another room, and 

then “shoot somebody six times” without waking. Lazarine’s other expert, Victor 

Scarano (“Scarano”), opined that Lazarine was asleep when he shot Deborah and 

thus he could not have intended to shoot and kill her. The State’s expert, Mark 

Pressman (“Pressman”), disagreed with Simmons and Scarano and testified that 

Lazarine’s behavior was inconsistent with either REM Behavior Disorder or 

sleepwalking and that neither condition could account for Lazarine’s alleged 

behavior—getting out of bed, retrieving a gun, walking down the hall into the living 

room, and shooting Deborah six times, while remaining asleep.

The indictment against Lazarine alleged the offense of murder in the 

conjunctive under Texas Penal Code Sections 19.02(b)(1) and (2). The indictment 

alleged Lazarine “intentionally or knowingly cause[d] the death of Deborah Lazarine 

. . . by shooting [Deborah] with a deadly weapon, namely a firearm” and “unlawfully 

intend[ed] to cause serious bodily injury to [Deborah] . . . and did cause [Deborah’s 

death] by intentionally and knowingly committing an act clearly dangerous to human 

life, namely by shooting [Deborah] with a deadly weapon, namely a firearm.”
5

Presenting a general verdict form, the trial court gave the following charge to 

the jury at the close of the guilt-innocence phase.

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

or about the 18th day of December, 2013, in Harris County, Texas, the 

defendant, Raymond Gene Lazarine, did then and there unlawfully, 

intentionally or knowingly cause the death of Deborah Lazarine, by 

shooting Deborah Lazarine with a deadly weapon, namely, a firearm; 

or

If you find from the evidence beyond a reasonable doubt that on or 

about the 18th day of December, 2013, in Harris County, Texas, the 

defendant, Raymond Gene Lazarine, did then and there unlawfully 

intend to cause serious bodily injury to Deborah Lazarine, and did cause 

the death of Deborah Lazarine by intentionally or knowingly 

committing an act clearly dangerous to human life, namely, by shooting 

Deborah Lazarine with a deadly weapon, namely, a firearm, then you 

will find the defendant guilty of murder, as charged in the indictment.

The jury returned a guilty verdict, finding Lazarine “guilty of murder as changed in 

the indictment” and assessed his punishment at seventy-five years’ confinement and 

a $10,000 fine.

Texas Government Code Section 74.056

Lazarine’s case was tried before the 184thDistrict Court of Harris County. At 

the time of trial, Judge Abigail Anastasio was the elected judge of the 184th District 

Court. She did not preside over the trial, however. Judge Belinda Hill, who had 

been assigned to serve as visiting judge, presided over the trial instead. In his first 

issue, Lazarine argues that Texas Government Code Section 74.056(a), which 

authorizes a presiding judge to assign visiting judges to try cases and dispose of 
6

accumulated business, is unconstitutional as applied in his case, because it violates 

Article V, Section 7 of the Texas Constitution.

A. Standard of Review

The constitutionality of a statute is a question of law we review de novo. Ex

parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Smith v. State, No. 01-19-

00442-CR, 2020 WL 6731656, at *4 (Tex. App.—Houston [1st Dist.] Nov. 17, 2020, 

pet. ref’d) (mem. op.). A litigant who raises an “as applied” challenge to the 

constitutionality of a statute concedes the statute’s general constitutionality and 

instead “asserts that the statute is unconstitutional as applied to his particular facts 

and circumstances.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. 

App. 2011); Smith, 2020 WL 6731656, at *4. We presume the statute is valid, and 

that the Legislature has not acted unreasonably or arbitrarily. See Rodriguez v. State, 

93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Smith, 2020 WL 6731656, at *4. The 

individual challenging the statute has the burden to prove its unconstitutionality. 

Rodriguez, 93 S.W.3d at 69; see Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim. 

App. 2016).

B. Analysis

Judge Susan Brown, the presiding judge of the Eleventh Administrative

Judicial Region, appointed Judge Belinda Hill “to the Criminal District Courts of 

Harris County, Texas. . . for the primary purpose of hearing cases and disposing of 
7

any accumulated business requested by the court . . . [p]ursuant to Section 74.056, 

Texas Government Code.”2Judge Hill previously served as the judge of the 230th 

District Court of Harris County from 1997 until December 2012. 

Government Code Section 74.056(a) states:

A presiding judge from time to time shall assign the judges of the 

administrative region to hold special or regular terms of court in any 

county of the administrative region to try cases and dispose of 

accumulated business.

TEX. GOV’T CODE § 74.056. Lazarine does not dispute that Judge Brown’s order of 

assignment complies with this section. Rather, he contends the order violates Article

V, Section 7 of the Texas Constitution, which sets out the requirements for judicial 

districts and district court judges. Article V, Section 7 of the Texas Constitution

states

The State shall be divided into judicial districts, with each district 

having one or more Judges as may be provided by law or by this 

Constitution. Each district judge shall be elected by the qualified voters 

at a General Election and shall be a citizen of the United States and of 

this State, who is licensed to practice law in this State and has been a 

2 The assignment states in pertinent part:

Pursuant to Section 74.056, Texas Government Code, I hereby assign the 

Honorable Belinda Hill, Senior District Judge, 230th Judicial District Court, 

to the Criminal District Courts of Harris County, Texas. This assignment 

begins the 28th day of October, 2019 and is for the primary purpose of 

hearing cases and disposing of any accumulated business requested by the 

court. This assignment shall continue as may be necessary for the assigned 

Judge to dispose of any accumulated business and to complete trial of any 

case or cases begun during this assignment, and to pass on motions for new 

trial and all other matters growing out of accumulated business or cases heard 

before the Judge herein assigned, or until terminated by the Presiding Judge. 
8

practicing lawyer or a Judge of a Court in this State, or both combined, 

for four (4) years next preceding his election, who has resided in the 

district in which he was elected for two (2) years next preceding his 

election, and who shall reside in his district during his term of office 

and hold his office for the period of four (4) years, and who shall receive 

for his services an annual salary to be fixed by the Legislature. The 

Court shall conduct its proceedings at the county seat of the county in 

which the case is pending, except as otherwise provided by law. He 

shall hold the regular terms of his Court at the County Seat of each 

County in his district in such manner as may be prescribed by law. The 

Legislature shall have power by General or Special Laws to make such 

provisions concerning the terms or sessions of each Court as it may 

deem necessary.

The Legislature shall also provide for the holding of District Court 

when the Judge thereof is absent, or is from any cause disabled or 

disqualified from presiding.

TEX. CONST. art. V, § 7. Focusing on the last sentence, Lazarine argues Article V, 

Section 7 “creates an absolute prohibition on the assignment of visiting judges 

outside of situations in which the elected district judge is absent, disabled, or 

disqualified.” He thus contends that as applied to him, Government Code Section

74.056(a) violates Article V, Section 7 because it permitted Judge Hill to preside 

over his trial, even though nothing in the record suggested Judge Abigail Anastasio, 

the elected judge of the 184th District Court, was absent, disabled, or disqualified at 

the time of his trial. 

This Court recently rejected this same argument under very similar 

circumstances in Smith v. State, No. 01-19-00442-CR, 2020 WL 6731656, at *4 
9

(Tex. App.—Houston [1st Dist.] Nov. 17, 2020, pet. ref’d) (mem. op.).

3

 In Smith, a 

visiting judge previously assigned to a district court under Government Code Section 

74.056(a) presided over Smith’s case. Like Lazarine, Smith argued Section 

74.056(a) was unconstitutional because the statute, as applied, permitted the visiting 

judge to preside over his case, even though there was no evidence the elected judge 

of the district court was unable to preside over Smith’s case due to her absence, 

disability, or disqualification. Smith, 2020 WL 6731656, at *5. After analyzing 

Article V, Section 7 and its interpretive commentary explaining the purpose of the

constitutional provision, we held that 

Both the plain language of [Article V, Section 7’s] text and its apparent 

purpose indicate that the provision was intended to ensure that when a 

district judge is absent, disabled, or disqualified, court can be held 

without significant delay or interruption. Nothing in the provision’s 

text, or otherwise, indicates that the legislature lacks authority to enact 

legislation permitting eligible and qualified judges to be assigned to 

district courts even when the elected judge of the district court is not 

absent, disabled, or disqualified.

Smith, 2020 WL 6731656, at *6 (citing Dean v. Dean, 214 S.W. 505, 507 (Tex. Civ. 

App.—1919, no writ)); see also Wiggins v. State, 622 S.W.3d 556, 560 (Tex. App.—

Houston [14th Dist.] 2021, pet. ref’d) (following Smith’s reasoning and holding 

Wiggins had not met his burden to show that Government Code Section 74.056(a) 

3 We issued our opinion in Smith v. State, No. 01-19-00442-CR, 2020 WL 6731656 

(Tex. App.—Houston [1st Dist.] Nov. 17, 2020, pet. ref’d) (mem. op.) after the 

parties filed their briefs in this appeal.
10

was unconstitutional as applied). Based on our interpretation of Article V, Section 

7, we held Smith had not met his burden to show that Government Code Section 

74.056(a) was unconstitutional as applied.

The same is true here. Pursuant to Smith, we hold Lazarine has not met his 

burden to show that Government Code Section 74.056(a) is unconstitutional as 

applied to him.

We overrule Lazarine’s first issue.

Jury Unanimity

In his second issue, Lazarine argues the trial court erred by submitting a jury 

charge that alleged two separate statutory offenses of murder under Penal Code 

Section 19.02(b)(1) and (2). He argues the jury charge, as submitted, allowed the 

jury to return a non-unanimous verdict of guilty because it did not require the jury 

to agree on the statutory definition of murder it believed Lazarine committed.

A. Standard of Review and Applicable Law

Article V, Section 13 of the Texas Constitution and Texas law requires jury 

verdicts to be unanimous in felony cases. TEX. CONST. art. V, § 13; see O’Brien v.

State, 544 S.W.3d 376, 382 (Tex. Crim. App. 2018); Young v. State, 341 S.W.3d

417, 422 (Tex. Crim. App. 2011). The jury “must agree that the defendant 

committed one specific crime, but this does not mean that the jury must unanimously 

find that the defendant committed that crime in one specific way or even with one 
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specific act.” O’Brien, 544 S.W.3d at 382; see also Young, 341 S.W.3d at 422

(holding jury must agree about occurrence of single criminal offense but need not 

be unanimous about specific manner and means of how offense was committed). 

Although a jury must agree unanimously on each essential element of a crime to

convict, “the requirement of jury unanimity is not violated by a jury charge that 

presents the jury with the option of choosing among various alternative manner and 

means of committing the same statutorily defined offense.” O’Brien, 544 S.W.3d at 

382. When alternate theories of committing the same offense are submitted to the 

jury in the disjunctive, it is appropriate for the jury to return a general verdict if the 

evidence is sufficient to support a finding under any of the submitted theories. 

Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (en banc); Aguirre

v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987).

In analyzing a jury unanimity challenge, appellate courts examine the statute 

defining the offense to determine whether the Legislature created “multiple, separate 

offenses, or a single offense” with multiple or alternate methods or means of 

commission. Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007); see also 

O’Brien, 544 S.W.3d at 384 (holding the inquiry “is primarily a question of 

legislative intent”). We conduct a statutory analysis “that seeks to ascertain the focus 

or gravamen of the offense.” Id. at 383. To summarize

If the gravamen of the crime is the “result of the conduct,” the jury must 

be unanimous about the specific result required by the statute but not 
12

the specific conduct. If the gravamen of the crime is the “nature of the 

conduct,” the jury must be unanimous about the specific criminal act 

committed. And if the gravamen of the crime is a “circumstances

surrounding the conduct,” unanimity is required about the existence of 

the particular circumstance of the offense.

Id.4

Lazarine was convicted of murder, a result-oriented offense. See Young, 341 

S.W.3d at 423 (stating “murder is a ‘result of conduct’ offense”). The Texas Penal 

Code provision relevant to our analysis is Section 19.02(b). It provides that:

(b) A person commits [murder] if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act 

clearly dangerous to human life that causes the death of an 

individual; or

(3) commits or attempts to commit a felony, other than 

manslaughter, and in the course of and in furtherance of the 

commission or attempt, or in immediate flight from the 

commission or attempt, he commits or attempts to commit an 

4 The Texas Court of Criminal Appeals has explained the three general categories of 

criminal offenses:

First, “result of conduct” offenses concern the product of certain conduct. 

For example, murder is a “result of conduct” offense because it punishes the 

intentional killing of another regardless of the specific manner . . . of causing 

the person’s death. . . With the second category, “nature of conduct” offenses, 

it is the act or conduct that is punished, regardless of any result that might 

occur. . . Finally, “circumstances of conduct” offenses prohibit otherwise 

innocent behavior that becomes criminal only under specific circumstances.

Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011). 
13

act clearly dangerous to human life that causes the death of an 

individual.

TEX. PENAL CODE § 19.02(b). To convict a defendant for a result-oriented offense 

like murder, the jury must be unanimous about (1) the defendant (2) causing the 

proscribed result (3) against the complainant (4) on a specific occasion. See 

Jefferson v. State, 189 S.W.3d 305, 315–16 (Tex. Crim. App. 2006) (Cochran, J., 

concurring).

The indictment against Lazarine alleged the offense of murder in the 

conjunctive under Sections 19.02(b)(1) and (2) of the Texas Penal Code. The

indictment alleged that “on or about December 18, 2013” Lazarine “unlawfully, 

intentionally and knowingly cause[d] the death of Deborah Lazarine . . . by shooting 

[Deborah] with a deadly weapon, namely a firearm” and “further” that “on or about 

December 18, 2013” Lazarine “unlawfully intend[ed] to cause serious bodily injury 

to Deborah Lazarine . . . and did cause the death of [Deborah] by intentionally and 

knowingly committing an act clearly dangerous to human life, namely by shooting 

[Deborah] with a deadly weapon, namely a firearm.”

Although the indictment alleged the offense of murder in the conjunctive, the 

trial court instructed the jury in the disjunctive. Presenting a general verdict form, 

the trial court gave the following charge to the jury at the close of the guilt-innocence 

phase:
14

The defendant, Raymond Gene Lazarine, stands charged by indictment 

with the offense of murder, alleged to have been committed on or about 

the 18th day of December, 2013, in Harris County, Texas.

. . .

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

or about the 18th day of December, 2013, in Harris County, Texas, the 

defendant, Raymond Gene Lazarine, did then and there unlawfully, 

intentionally or knowingly cause the death of Debrah Lazarine, by 

shooting Debrah Lazarine with a deadly weapon, namely, a firearm; or

If you find from the evidence beyond a reasonable doubt that on or 

about the 18th day of December, 2013, in Harris County, Texas, the 

defendant, Raymond Gene Lazarine, did then and there unlawfully 

intend to cause serious bodily injury to Debrah Lazarine, and did cause 

the death of Debrah Lazarine by intentionally or knowingly committing 

an act clearly dangerous to human life, namely, by shooting Debrah 

Lazarine with a deadly weapon, namely, a firearm, then you will find 

the defendant guilty of murder, as charged in the indictment.

The jury returned a guilty verdict, finding Lazarine “guilty of murder, as charged in 

the indictment.” 

B. Analysis

The question presented by Lazarine is whether the jury charge merely charged 

alternate theories of committing the same offense or whether the jury charge 

included two separate offenses charged in the disjunctive. Based on the “grammar 

test” espoused by Judge Cochran in her concurring opinion in Jefferson v. State, 189 

S.W.3d 305, 315–16 (Tex. Crim. App. 2006) (Cochran, J., concurring), Lazarine 

argues Section 19.02(b)(1) and (2) of the Texas Penal Code are “two separate 

offenses” and thus instructing the jury to return a guilty verdict “if it found [he] 
15

committed either of two separate criminal offenses” violated his constitutional 

guarantee of jury unanimity. We disagree. 

This Court’s opinion in Braughton v. State, 522 S.W.3d 714 (Tex. App.—

Houston [1st Dist.] 2017), aff’d, 569 S.W.3d 592 (Tex. Crim. App. 2018) is 

instructive. In that case, Braughton argued the evidence was legally insufficient to 

support his murder conviction because there was no evidence establishing he 

possessed the required mental state to commit murder. Braughton, 522 S.W.3d at 

727. In analyzing the issue, this Court stated: 

A person has the requisite mens rea for the offense of murder when he 

“intentionally or knowingly causes the death of an individual” or 

“intends to cause serious bodily injury and commits an act clearly 

dangerous to human life that causes the death of an individual.” TEX.

PENAL CODE § 19.02(b)(1)–(2). A person acts “intentionally” with 

respect to the nature or result of his conduct “when it is his conscious 

objective or desire to engage in the conduct or cause the result.” 

Id. § 6.03(a). A person acts “knowingly” “with respect to a result of 

his conduct when he is aware that his conduct is reasonably certain to 

cause the result.” Id. § 6.03(b). When, as in this case, the charge 

presents two legal theories of murder—knowingly causing death or 

intending to cause serious bodily injury and committing an act clearly 

dangerous to human life that causes death—the theories are alternative 

manners and means of committing the offense of murder, rather than 

distinct offenses. See Aguirre v. State, 732 S.W.2d 320, 326 (Tex. 

Crim. App. 1982) (en banc) (op. on rehearing).

Id. at 727–28. 

Lazarine argues Braughton is not binding because the defendant never argued 

his conviction was improper based on a lack of jury unanimity and therefore, our 

statement that Section 19.02(b)(1) and (2) are theories of “alternative manners and 
16

means of committing the offense of murder, rather than distinct offenses” is dicta. 

He further argues this Court did not use Judge Cochran’s eighth-grade grammar test 

to determine whether murder under Section 19.02(b)(1) and (2) are the same offense, 

but instead relied on the Court of Criminal Appeals’ opinion in Aguirre v. State, 732 

S.W.2d 320, 326 (Tex. Crim. App. 1982) (en banc) for this proposition. In Aguirre, 

the Court held that an indictment alleging theories of both intentional and knowing 

murder and felony murder did not allege different offenses, but only different ways 

of committing the same offense. Id. Lazarine contends that the Braughton Court’s 

reliance on Aguirre was misplaced because Aguirre was issued almost thirty years 

before Braughton and well before Judge Cochran first articulated her eighth-grade 

grammar test in Jefferson. Lazarine’s arguments are unpersuasive. 

Even if the language in Braughton is dicta, Aguirre is binding precedent from 

the Court of Criminal Appeals. And while Aguirre addressed the former versions of 

Section 19.02(b)(1) and (3),5this Court and others have cited routinely to Aguirre 

for the proposition that Section 19.02(b)(1), (2) and (3), in their current form, set 

forth alternative theories of murder and not, as Lazarine contends, distinct offenses. 

See Gilbert v. State, 575 S.W.3d 848, 860 (Tex. App.—Texarkana 2019, pet. ref’d) 

(involving Section 19.02(b)(1), (2) and (3)); Smith v. State, 436 S.W.3d 353, 378 

(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (involving Section 19.02(b)(1), 

5 Section 19.02(b)(3) is commonly referred to as felony murder.
17

(2) and (3)); Bundy v. State, 280 S.W.3d 425, 433 (Tex. App.—Fort Worth 2009, 

pet. ref’d) (involving Section 19.02(b)(1), (2)); Barfield v. State, 202 S.W.3d 912, 

916 (Tex. App.—Texarkana 2006, pet. ref’d) (involving Section 19.02(b)(1) and 

(3)).

We are not persuaded that Aguirre is of “little precedential value,” as Lazarine 

argues. Although Section 19.02 was modified in 1994, the relevant portions of the 

statute—what are now Section 19.02(b)(1) and (2)—remain unchanged. That Judge 

Cochran’s eighth-grade grammar approach in Jefferson was first articulated after 

Aguirre is also of little consequence because even before Jefferson, Texas courts had

long interpreted statutes by first looking to the plain language of the statute. See

Boykin v. State, 818 S.W.2d 782, 785–86 (Tex. Crim. App. 1991) (en banc) (stating 

courts focus on “the literal text of statute” when “attempting to discern this collective 

legislative intent or purpose,” and noting that “[t]his method of statutory 

interpretation is of ancient origin”). Judge Cochran’s eighth-grade grammar 

approach is thus not a new test that must be used to determine the Legislature’s 

intent; it is a “rule of thumb” that courts may use when analyzing the plain language 

of a statute. See Jones v. State, 323 S.W.3d 885, 890 (Tex. Crim. App. 2010) (“One 

aspect of grammar is the ‘eighth grade grammar’ approach suggested by Judge 

Cochran as ‘a general rule of thumb’ for determining legislative intent.”); Stuhler v.

State, 218 S.W.3d 706, 718 (Tex. Crim. App. 2007) (stating Judge Cochran’s “eighth 
18

grade grammar” approach is “a general rule of thumb for making this determination 

of legislative intent”). We further note that the Court of Criminal Appeals has 

warned against “uncritical[ly]” applying the “grammar test,” cautioning that while 

the test is “generally useful” and a good “rule of thumb,” it “will not necessarily 

work invariably, in every scenario, to accurately identify legislative intent.” Leza v. 

State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011). 

Lazarine argues we must nonetheless analyze Section 19.02(b) using Judge 

Cochran’s “eighth-grade grammar” test, which, according to Lazarine, establishes 

that Section 19.02(b)(1) and (2) are separate offenses. We disagree. First, courts 

have interpreted Section 19.02(b) as setting forth alternative theories of murder, as 

opposed to three distinct offenses for decades. Aguirre, 732 S.W.2d at 326. And 

contrary to Lazarine’s contention that the issue before us is one of first impression, 

courts have continued to do so even when presented with the same unanimity 

challenge Lazarine raises. See London v. State, 325 S.W.3d 197, 206–07 (Tex. 

App.—Dallas 2008, pet. ref’d) (holding sections 19.02(b)(1) and 19.02(b)(2) did not 

constitute two separate statutory offenses of murder and jury charge that allowed 

jury to find defendant guilty of murder without agreeing as to which section was 

satisfied did not violate defendant’s right to a unanimous verdict); Diko v. State, 488 

S.W.3d 855, 858 (Tex. App.—Fort Worth 2016, pet. ref’d) (“This court, on three 

previous occasions, has rejected the argument . . . that sections 19.02(b)(1) and
19

19.02(b)(2) constitute two separate offenses and that a trial court violates the 

unanimity requirement by allowing the jury to find a defendant guilty without 

requiring the jury to agree on which offense the defendant committed.”); Smith, 436 

S.W.3d at 378 (“Both the indictment and the jury charge indicate that the only

offense involved in this case was murder by any of the three methods set forth in the 

Penal Code . . . . The jury was not required to agree unanimously as to the manner

and means by which appellant did so.”); Garcia v. State, 246 S.W.3d 121, 141 (Tex. 

App.—San Antonio 2007, pet ref’d) (“[W]hether the jury determined that Garcia 

caused the death of Lesa Garcia [under Section 19.02(b)(1) or 19.02(b)(2)] there was 

only one single crime of murder.”). This principle is so well established that we see

no need to engage in any further analysis.6

Even if we were to employ the “eighth-grade grammar” approach to determine 

whether the Legislature created multiple, separate offenses, or a single offense with 

different methods or means of commission when it drafted Section 19.02(b), we 

6 We further note that when interpreting a statute, we must also “consider any prior 

judicial construction of the statute.” Jones v. State, 323 S.W.3d 885, 888 (Tex. 

Crim. App. 2010). This is especially important when that construction is 

longstanding because the Legislature could have changed the statute if it did not 

agree with prior judicial interpretation, and “the interests of stare decisis are at their 

height for judicial constructions of legislative enactments upon which the parties 

rely for guidance in conforming to those enactments.” Id. at 889. Section 19.02 has 

been amended only once since 1974, and while the 1994 amendment modified the 

language of the felony murder provision, it did not alter the language of what are 

now Sections 19.02(b)(1) and (2).
20

would reach the same conclusion. Judge Cochran’s eighth-grade grammar approach 

is best summarized as follows:

In sum, we must return to eighth-grade grammar to determine what 

elements the jury must unanimously find beyond a reasonable doubt. 

At a minimum, these are: the subject (the defendant); the main verb; 

and the direct object if the main verb requires a direct object (i.e., the 

offense is a result-oriented crime); and the specific occasion (the date 

phrase within the indictment, but narrowed down to one specific 

incident regardless of the date alleged). Generally, adverbial phrases, 

introduced by the preposition “by,” describe the manner and means of 

committing the offense. They are not the gravamen of the offense, nor 

elements on which the jury must be unanimous.

Jefferson, 189 S.W.3d at 315–16 (Cochran, J., concurring). 

Employing Judge Cochran’s grammar test, Lazarine argues that the

“prohibited conduct” under Section 19.02(b)(2) is causing “serious bodily harm,” 

while the “prohibited conduct” under Section 19.02(b)(1) is “causes the death of an 

individual.” Section 19.02(b)(2) states that a person commits murder if he “intends 

to cause serious bodily injury and commits an act clearly dangerous to human life 

that causes the death of an individual.” TEX. PENAL CODE § 19.02(b)(2) (emphasis 

added). Lazarine evaluates only the first part of Section 19.02(b)(2), ignoring the 

second which identifies the gravamen of the offense: “death of an individual.” Were 

we to adopt Lazarine’s interpretation, we would in effect be removing “death of an 

individual” from Section 19.02(b)(2), rendering that language superfluous or 

relegating the gravamen of the offense to the manner and means of committing the 

offense. We decline to do so.
21

Section 19.02(b) provides that a person commits murder if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act 

clearly dangerous to human life that causes the death of an 

individual; or

(3) commits or attempts to commit a felony, other than 

manslaughter, and in the course of and in furtherance of the 

commission or attempt, or in immediate flight from the 

commission or attempt, he commits or attempts to commit an 

act clearly dangerous to human life that causes the death of an 

individual.

TEX. PENAL CODE § 19.02(b) (emphasis added). Under Judge Cochran’s “grammar 

test,” the subject in Section 19.02(b)(2) is the defendant, the main verb is “causes” 

and the direct object of the main verb is “the death of an individual.” Thus, the 

gravamen of the crime is the “result of the conduct,” which is the same under Section 

19.02(b)(1) and (2): the death of an individual. 

We hold consistent with our prior decision in Braughton, that when, as here, 

a “charge presents two legal theories of murder—[intentionally or] knowingly 

causing death or intending to cause serious bodily injury and [intentionally or 

knowingly] committing an act clearly dangerous to human life that causes death—

the theories are alternative manners and means of committing the offense of murder, 

rather than distinct offenses.” Braughton, 522 S.W.3d at 727–28; see also Johnson 

v. State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012) (citing all three definitions of 

statutory manners of murder and stating: “the focus or gravamen of the offense is 
22

that the victim was killed”); Fraser v. State, 593 S.W.3d 883, 890 (Tex. App.—

Amarillo 2019, pet. ref’d) (stating gravamen of offense of murder under all three 

subparts of section 19.02(b) “is causing the death of an individual”). Unanimity is 

generally not required on the alternate manner and means of committing an offense. 

See Kitchens, 823 S.W.2d at 258 ; Aguirre, 732 S.W.2d at 326. Thus, the trial court 

did not err in charging the jury.

We overrule Lazarine’s second issue.

Mistrial

During her opening statement, the prosecutor referred to Lazarine as a 

“monster.” Lazarine objected and the trial court sustained the objection instructing 

the jury to disregard the prosecutor’s statement. Lazarine then moved for a mistrial, 

which the trial court denied. In his third issue, Lazarine argues the trial court abused 

its discretion by denying his motion for a mistrial. 

A. Standard of Review and Applicable Law

When, as here, the trial court instructs the jury to disregard improper 

argument, the proper analysis is whether the trial court abused its discretion in 

denying the defendant’s motion for mistrial. Archie v. State, 340 S.W.3d 734, 738–

39 (Tex. Crim. App. 2011) (“Because the trial court sustained the appellant’s 

objection and instructed the jury to disregard the argument, ‘[t]he only adverse

ruling—and thus the only occasion for making a mistake—was the trial court’s
23

denial of the motion for mistrial.’ Thus, ‘the proper issue is whether the refusal to

grant the mistrial was an abuse of discretion.’”) (quoting Hawkins v. State, 135 

S.W.3d 72, 76–77 (Tex. Crim. App. 2004)). Under this standard, we view the 

evidence in the light most favorable to the trial court’s ruling and uphold the ruling 

if it falls within the zone of reasonable disagreement. Ocon v. State, 284 S.W.3d 

880, 884 (Tex. Crim. App. 2009); Griffin v. State, 571 S.W.3d 404, 416 (Tex. App.—

Houston [1st Dist.] 2019, pet. ref’d).

A mistrial is a device used to halt trial proceedings when error is so prejudicial 

that the expenditure of further time and expense would be wasteful and futile. Ladd

v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). It is “an extreme remedy and 

should be exceedingly uncommon.” Williams v. State, 417 S.W.3d 162, 175 (Tex. 

App.—Houston [1st Dist.] 2013, pet. ref’d) (citing Hawkins, 135 S.W.3d at 77

(stating mistrial is required only “in extreme circumstances, where the prejudice is 

incurable”)); see also Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) 

(“Mistrial is a remedy appropriate for a narrow class of highly prejudicial and 

incurable errors[.]”). Granting a motion for mistrial is appropriate only when “the

objectionable events are so emotionally inflammatory that curative instructions are

not likely to prevent the jury from being unfairly prejudiced against the defendant.” 

Archie, 340 S.W.3d at 739 (quoting Young v. State, 137 S.W.3d 65, 71 (Tex. Crim.

App. 2004) (en banc)).
24

When constitutional rights are not implicated,7 we evaluate whether a trial 

court abused its discretion in denying a mistrial based on improper jury argument by 

weighing the factors set forth in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. 

App. 1998). We consider “(1) the severity of the misconduct (the magnitude of the

prejudicial effect of the prosecutor's remarks), (2) the measures adopted to cure the

misconduct (the efficacy of any cautionary instruction by the judge), and (3) the

certainty of conviction absent the misconduct (the strength of the evidence

supporting the conviction).”8Id.; see also Archie, 340 S.W.3d at 739. When an 

instruction to disregard is sufficient to cure the harm, the trial court does not err by 

denying a motion for mistrial. Young, 137 S.W.3d at 72; Griffin, 571 S.W.3d at

416–17.

B. Analysis

At the end of her opening statement, the prosecutor told the jury, “Sometimes 

when you are a kid, you hear about monsters under the bed. In this case, it was the 

7 Generally, error involving improper jury argument is non-constitutional. See

Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000); Freeman v. State, 

340 S.W.3d 717, 728 (Tex. Crim. App. 2011).

8 Although the relevant question is whether the trial court abused its discretion in 

denying a motion for mistrial and not whether the decision was harmful, “the 

question of whether a mistrial should have been granted involves most, if not all, of 

the same considerations that attend a harm analysis.” Hawkins v. State, 135 S.W.3d 

72, 76–77 (Tex. Crim. App. 2004) (stating court of appeals and parties 

mischaracterized issue as one of harm because when only adverse ruling was trial 

court’s denial of motion for mistrial, “the proper issue is whether the refusal to grant 

the mistrial was an abuse of discretion.”).
25

monster that’s sitting right there.” Lazarine objected to the prosecutor calling him a 

“monster.” The trial court sustained the objection and instructed the jury to disregard 

the prosecutor’s statement. Lazarine then moved for a mistrial and the trial court

denied the motion. Lazarine argues the prosecutor’s statement was “inherently 

prejudicial,” and the jury could not have been expected to put the statement aside 

during its evaluation of the evidence because the statement “caused the jury to doubt 

Mr. Lazarine’s defense of acting during his sleep.”9 Applying the Mosley factors, 

we consider whether the trial court abused its discretion by denying Lazarine’s 

motion for mistrial. 

The first Mosley factor considers “the severity of the misconduct, or in other 

words, the magnitude of the prejudicial effect of the prosecutor’s [misconduct].” 

Archie, 340 S.W.3d at 740. The record reflects that any potential prejudicial effect 

resulting from the prosecutor’s statement was mitigated by similar, unobjected to, 

testimony elicited later the same day. Lazarine’s son, Nathan, testified that when he 

saw Lazarine at the police station on the day of the murder, he told his father that 

“he was a monster and he was going to hell.” Officer M. Holbrook also testified that 

when she escorted Lazarine to the interview room at the police station, Lazarine told 

her, “[T]hat’s my son right there, I killed his mother, he’s right, I’m a monster, and 

it’s all a dream.” There was also testimony from all three of Lazarine’s children that 

9 Neither Lazarine nor the State mention the Mosley factors in their appellate briefing.
26

Lazarine was a severe alcoholic who had abused Deborah verbally for decades, 

threatened to kill her, hit her, and even held a gun to her head. Given this subsequent, 

unobjected to, testimony, the first Mosley factor weighs in favor of the trial court’s 

decision to deny Lazarine’s motion for a mistrial.

The second Mosley factor considers the measures the trial court adopted to 

cure the misconduct. In this case, the trial court immediately applied the curative 

measure requested by Lazarine, the instruction to disregard the prosecutor’s 

statement.10 Ordinarily, prompt instructions are effective to cure the harm from 

improper argument and we generally presume that the trial court’s instruction will 

be obeyed by the jury. Archie, 340 S.W.3d at 741. Lazarine does not explain, and 

we cannot discern, why the trial court’s instruction to disregard was not effective to 

cure the alleged error. Id. at 739 (“Mistrial is the appropriate remedy when the 

objectionable events are so emotionally inflammatory that curative instructions are 

not likely to prevent the jury from being unfairly prejudiced against the defendant.”). 

This factor also weighs in favor of the trial court’s decision to deny Lazarine’s 

motion for a mistrial.

The third Mosley factor requires us to consider “the certainty of conviction

absent the misconduct.” Id. at 741. Lazarine does not dispute he shot and killed his 

wife, Deborah. Rather, Lazarine argued at trial that he was asleep when he shot her 

10 The trial court instructed the jury to “disregard the comment of the prosecutor.”
27

and thus his behavior was not voluntarily. Both Lazarine and the State presented 

competing expert testimony regarding Lazarine’s defense. Lazarine’s expert,

Simmons, testified that Lazarine was suffering from REM Behavior Disorder and 

Parasomnia Overlap Disorder and that someone with those conditions is capable of 

walking into another room with a gun and killing a person while remaining asleep. 

Dr. Scarano, Lazarine’s other expert, offered similar testimony. The State’s expert, 

Pressman, however, disagreed with Simmons and Scarano and opined that

Lazarine’s behavior was inconsistent with both REM Behavior Disorder and 

sleepwalking. The State’s theory, as evidenced by the prosecutor’s opening and 

closing statements, was that Lazarine may have been intoxicated when he shot 

Deborah, but he concocted his sleeping defense after he realized that voluntary 

intoxication is not a defense to murder. The State also argued in closing that 

Lazarine began seeking medical attention for an altered mental state after he was 

arrested and began sleepwalking in jail, even though his immediate family had never 

seen Lazarine sleepwalking before. According to Pressman, sleepwalking is most 

common among children, and it would be very unusual for an adult to start 

sleepwalking in his 60s, as Lazarine had apparently done.

Lazarine’s children, Nathan, Krysta, and Casey, also testified that Lazarine 

was an alcoholic who was physically, verbally, and emotionally abusive towards 

their mother during their marriage. Nathan testified that Deborah moved in with him 
28

for a few months in 2012 and that Lazarine would call his home and leave voicemails 

threatening to kill her. Although Nathan never witnessed Lazarine physically abuse 

Deborah, Krysta saw Lazarine holding a gun to her mother’s head and Casey 

testified she saw Lazarine punch her mother in the head on a separate occasion. 

Casey and Krysta also testified that Lazarine regularly threatened to kill Deborah.

Based on Pressman’s testimony and the children’s testimony that Lazarine 

was an abusive alcoholic who had abused and threatened to kill Deborah, there was 

sufficient evidence from which the jury could have reasonably rejected Lazarine’s 

defense that he was asleep when he shot and killed Deborah. This factor weighs in 

favor of the trial court’s decision to deny Lazarine’s motion for a mistrial.

After weighing the Mosley factors, we conclude the prosecutor’s reference to 

Lazarine as a “monster” was an isolated incident that was mitigated by similar 

testimony from two witnesses. The alleged error was promptly addressed by the 

trial court, who immediately instructed the jury to disregard the comment, and the

evidence of guilt was so strong that there is a reasonable certainty Lazarine would

have been convicted absent the misconduct.

Under these circumstances, the trial court was reasonable in believing that its 

instruction to disregard the comment was effective and that Lazarine was not

prejudiced by the prosecutor’s remark. See Hawkins, 135 S.W.3d at 85. We 
29

conclude the trial court did not abuse its discretion by denying Lazarine’s motion for 

mistrial. 

We overrule Lazarine’s third issue.

Assessment of Costs and Fines

Texas Code of Criminal Procedure Article 42.15(a-1) states that “during or 

immediately after imposing a sentence in a case” the trial court “shall inquire 

whether the defendant has sufficient resources or income to immediately pay all or 

part of the fine and costs.” TEX. CODE CRIM. PROC. art. 42.15(a-1). In his fourth 

issue, Lazarine argues the trial court erred by assessing a $10,000 fine and $440 in 

court costs against him without first inquiring about his ability to pay the fine and 

costs. 

The recitals in the judgment of conviction reflect the trial court ordered 

Lazarine to pay a fine and court costs “[a]fter having conducted an inquiry into 

[Lazarine’s] ability to pay.” The trial court signed the judgment the same day it 

imposed Lazarine’s sentence. We presume the regularity of the trial court’s 

judgment and records unless there is affirmative evidence to the contrary. Jones v.

State, 77 S.W.3d 819, 822 (Tex. Crim. App. 2002); Breazeale v. State, 683 S.W.2d 

446, 450–51 (Tex. Crim. App. 1985). “Where procedural requirements do not 

affirmatively appear in the record to have been violated, a presumption of regularity 

of the trial judge’s ruling must prevail.” Smith, 2020 WL 6731656, at *9 (quoting 
30

Jones v. State, 646 S.W.2d 449, 449 (Tex. Crim. App. 1983)). The burden is on the 

appellant to overcome this presumption. Ex parte Wilson, 716 S.W.2d 953, 956 

(Tex. Crim. App. 1986).

The only evidence Lazarine points to in support of a procedural violation is 

the fact the trial court did not ask about Lazarine’s ability to pay on the record during 

his sentencing hearing. But Article 42.15(a-1) does not obligate the trial court to 

make such an inquiry during the sentencing hearing. See TEX. CODE CRIM. PROC.

art. 42.15(a-1). And a silent reporter’s record concerning the trial court’s inquiry 

about a defendant’s ability to pay the assessed fine and costs does not contradict a 

recital in the judgment reflecting the trial court made the inquiry. See Smith, 2020 

WL 6731656, at *9 (citing Simms v. State, 848 S.W.2d 754, 756 (Tex. App.—

Houston [1st Dist.] 1993, pet. ref’d)). 

Because there is no affirmative evidence demonstrating a procedural 

violation, we hold Lazarine did not overcome the presumption of regularity. See

Smith, 2020 WL 6731656, at *9; see also Breazeale, 683 S.W.2d at 451 (stating that 

presumption of judgment’s regularity and truthfulness “is never to be lightly set 

aside”).

We overrule Lazarine’s fourth issue. 

Conclusion

We affirm the trial court’s judgment. 
31

Veronica Rivas-Molloy

Justice 

Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.

Do not publish. TEX. R. APP. P.