AFFIRMED; Opinion Filed May 21, 2015.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-01072-CR

EXZAYVIA COSBY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court

Dallas County, Texas

Trial Court Cause No. F12-01027-U

MEMORANDUM OPINION

Before Justices Myers, Evans, and O'Neill1

Opinion by Justice Evans

A jury convicted appellant Exzayvia Cosby of murder and sentenced him to thirty-five 

years’ confinement. He brings three issues on appeal and argues the following: (1) the evidence 

is legally insufficient to convict appellant of murder; (2) a rational trier of fact could not have 

found appellant guilty of murder; and (3) the trial court erred by improperly charging the jury on 

the culpable mental state required for a murder conviction. Deciding appellant’s issues against 

him, we affirm the trial court’s judgment. 

 1 The Hon. Michael J. O'Neill, Justice, Assigned
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I. BACKGROUND

On the evening of July 11, 2011, Tommy Booth spent the night at Jeffrey West’s house. 

Orin Staples asked West to meet him outside for a smoke. West, Staples, and Booth met outside 

of West’s home. 

Friends saw appellant leave for the incident. That same evening Anthony Alexander, 

Darrielle White, and Shatela Harris went to Staples’s house to pick up appellant and go back to 

Alexander’s house. Jamichael Young and appellant were leaving Staples’s house as the group

arrived. White testified that Young and appellant were both dressed in dark clothes.

Specifically, Young had a black bandana across his face and appellant had a mask on his head 

that was not pulled down to cover his face. Harris also confirmed that they were wearing dark 

clothes. White testified that she saw appellant pull the mask down over his face as he left and 

that it had holes for his eyes and mouth. 

West saw the incident begin. West testified that around 3 a.m. a man dressed all in black 

approached the group with a handgun. The man was African-American, tall, very skinny and 

wore black skinny jeans, black shoes, a long black crewneck sweater, black gloves and a black 

ski mask. West saw the man with the gun approach Booth, point the gun at him and tell him to 

lay down. West testified that he took off running when Booth and the man with the gun began 

struggling over the gun.

Two neighbors heard the shots and saw the aftermath. One neighbor—John Wash—

testified that he heard about four “pops” around 2:50 a.m. in the morning. Wash got up, looked 

out his bathroom window and saw one man lying on the ground and one man standing over him. 

Wash testified that he saw the standing man hitting the other man with what appeared to be a 

pistol before running away. Wash called 9-1-1 before going outside to check on the victim. 

Gregory Sneed—another neighbor—testified that he was awakened by gunshots around 2 or 3 
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a.m. Sneed ran to his window and saw a man standing over another man. Sneed testified the 

standing man appeared to be wearing all black and was either hitting or going through the 

pockets of the man lying on the ground. Sneed ran outside and identified the man lying on the 

ground as Booth.

Friends heard the shots and appellant’s statements afterwards. After he ran, West also 

heard gunshots. West spoke with Staples on his cell phone and went back to find Booth dead. 

White testified that she too heard gunshots and then a minute later Young came running into 

Staples’s house followed by appellant. Both Harris and Alexander testified that Young ran back 

into Staples’s house and said “he shot him.” Harris stated that Young seemed panicked and 

shaky and that Young was referring to appellant. According to White, appellant had a gun in his 

hand and a bottle of pills when he returned. Harris testified that she asked appellant what had 

happened and he stated “I shot him.” Harris further testified that she asked why he shot him, and 

appellant responded “because he tried to reach for the gun.” White also testified that appellant 

stated “I shot him.” Alexander testified that appellant said he pointed the gun at the victim to rob 

him and appellant pulled the trigger when the victim reached for the gun. Harris testified that 

appellant said he and Young had planned to rob Booth. White specifically testified that 

“[appellant] said that he went over there basically to rob him and that he told him to give him 

everything he had in his pockets, and then the man reached for the gun and he shot him.” White 

also stated that appellant told her that he gotten the pills and money from the man. Harris stated 

that appellant told her he got $6 and a bottle of pills from the man. Harris saw the bottle of pills 

but not the $6. 

Acquaintances heard appellant’s additional statements. After these events, White, Harris, 

Alexander and appellant left Staples’s house and went to Alexander’s house. Dervan McGowen 

testified that he was at his cousin Alexander’s house when he overheard appellant say “I shot 
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him.” McGowen also testified that appellant said something along the lines of “I went to go do 

this lick and it didn’t go down right” and “I had to shoot him.” 

West identified appellant. The night of the shooting West told the police that the 

assailant sounded like appellant. West said he had known appellant for over a decade and that the 

man dressed in black sounded like appellant. Detective Phil Hardin—the lead investigator of the 

Booth homicide for the Dallas police department—testified that the witnesses described the 

suspect as a six foot tall or more, very skinny man wearing all black, gloves and ski mask. 

Harding testified appellant matched this physical description. 

Alexander provided and then recanted appellant’s alibi. Alexander testified that he 

initially provided appellant with an alibi when he spoke with the police because of his friendship 

with appellant. Alexander testified that his mother found out what had happened and his parents 

were outraged that Alexander had lied to the police. Alexander testified that went back to the 

police station with his parents, Harris, and White and told them the truth. He testified that he did 

not want to testify against appellant in court. 

Appellant admitted to involvement. Harding interviewed appellant twice and at the end 

of the second interview, appellant admitted that he planned to rob Booth and went down there 

dressed in all black, black gloves and black ski mask. Harding also testified that appellant told 

him that he did not complete the robbery because someone else got to Booth first. 

Dr. Jill Urban, a medical examiner and forensic pathologist, testified that she performed 

Booth’s autopsy. Dr. Urban testified that she identified four gunshot wounds in Booth and one 

or two of those gunshots likely occurred while Booth was lying on the ground. Dr. Urban

testified that Booth’s cause of death was the gunshot wounds. 

The jury found the appellant guilty and assessed a punishment of thirty-five years’ 

confinement. Appellant then filed a notice of appeal. 
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II. ANALYSIS

A. Sufficiency of the Evidence 

In his second and third issues, appellant contends the evidence is insufficient to support a 

finding of guilt for the offense of murder. When an appellant challenges the sufficiency of the 

evidence to support a conviction, we review all the evidence in the light most favorable to the 

verdict to determine whether any rational trier of fact could have found the essential elements of 

the offense beyond a reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 

2012). Evidence is sufficient if “the inferences necessary to establish guilt are reasonable based 

upon the cumulative force of all the evidence when considered in the light most favorable to the 

verdict.” Id. If the evidence is conflicting, we “‘presume that the factfinder resolved the 

conflicts in favor of the prosecution’ and defer to that determination.” Id. (quoting Jackson v. 

Virginia, 443 U.S. 307, 326 (1979)). 

A person commits the offense of murder if such person “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 ANN.

§ 19.02(b)(1)-(2) (West 2011). Appellant argues that the State failed to present sufficient 

evidence at trial to convict him of murder. We disagree.

West physically described the suspect as a tall, very skinny African-American male 

wearing black skinny jeans, black shoes, a long black crewneck sweater, black gloves and a 

black ski mask. Sneed also testified that the suspect was wearing black clothing. Harding 

testified that, based on the information from witnesses, the physical description of the suspect 

was a six foot tall or more, very skinny man wearing all black, gloves and ski mask. Both White 

and Harris testified that appellant left Staples’s house wearing dark clothing. White testified that 

appellant pulled a mask down over his face as he left. Harding also testified that appellant 
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admitted during his interview that he planned to rob Booth and went down there dressed in all 

black, black gloves and black ski mask. 

West, who saw the suspect approach Booth and point a gun at him, testified that he saw 

the two men struggle over a gun. West testified he had known appellant for over a decade and 

that the man dressed in black sounded like appellant. Three separate witnesses—either friends or 

acquaintances of appellant—testified that they saw appellant leave, heard the gunshots, and saw 

appellant return and admit to the shooting. Appellant told these same witnesses that he shot the 

man because he reached for the gun. A fourth witness overheard appellant say “I shot him” and 

“I had to shoot him.” Finally, Dr. Urban testified that Booth died from the gunshot wounds. 

When considered in the light most favorable to the verdict, these facts were sufficient to 

demonstrate that appellant either (1) intentionally or knowingly caused the death of Booth or (2) 

intended to cause serious bodily injury and committed an act clearly dangerous to human life that 

caused Booth’s death. As the facts support a conviction of murder, we overrule appellant’s 

second and third points of error.

B. Charge Error Regarding Intent and Knowing

In his first issue, appellant argues that the trial court erred by including incorrect 

definitions of “intentionally” and “knowingly” in the jury charge. At trial, appellant did not 

object to the jury charge, but on appeal he argues that he was egregiously harmed by error in the 

charge. We disagree. 

When we review claims of jury charge errors, we first decide whether there was error in 

the charge. Ferguson v. State, 335 S.W.3d 676, 684 (Tex. App.—Houston [14th Dist.] 2011, no 

pet.). If there was error and appellant objected to the error at trial, then only “some harm” is 

necessary to reverse the trial court’s judgment. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. 

Crim. App. 1985) (op. on reh’g). If, however, the appellant failed to object at trial—as in this 
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case—then the appellant will obtain a reversal “only if the error is so egregious and created such 

harm that he ‘has not had a fair and impartial trial’—in short ‘egregious harm.’” Id. Egregious 

harm is the type and degree of harm that affects the very basis of the case, deprives the defendant 

of a valuable right, or vitally affects a defense theory. Allen v. State, 253 S.W.3d 260, 264 (Tex. 

Crim. App. 2008). In making an egregious harm determination, “the actual degree of harm must 

be assayed in light of the entire jury charge, the state of the evidence, including the contested 

issues and weight of probative evidence, the argument of counsel and any other relevant 

information [revealed] by the record of the trial as a whole.” Trejo v. State, 280 S.W.3d 258, 261 

(Tex. Crim. App. 2009) (quoting Almanza, 686 S.W.2d at 171). Egregious harm is a difficult 

standard to meet and must be determined on a case-by-case basis. See Ellison v. State, 86 

S.W.3d 226, 227 (Tex. Crim. App. 2002).

In this case, the jury charge clearly charges appellant with the offense of murder. The 

abstract portion of the charge then references the following definitions:

A person commits the offense of MURDER if 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.

A person acts “intentionally,” or with intent, with respect to the nature of his 

conduct or to a result of his conduct when it is his conscious objective or desire to 

engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to a result of his 

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

result. 

(emphasis added). The appellant argues that a jury cannot convict a defendant based solely on a 

finding that he intentionally engaged in conduct that happened to cause death. Accordingly, it 
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appears that appellant argues that he was harmed by inclusion of the italicized language above in 

the definition of “intentionally.”2 

The application section of the jury charge, however, does not make any reference to 

intentional conduct that “happened to cause death.” Instead, the application paragraph allows for 

a guilty verdict only by intentional conduct:

Now bearing in mind the foregoing instructions, if you believe from the evidence 

beyond a reasonable doubt that, on or about July 12th, 2011, in Dallas County, 

Texas, the defendant did unlawfully then and there intentionally and knowingly 

cause the death of Tommie Booth, an individual, by shooting said Tommie Booth 

with a firearm, a deadly weapon, 

OR

unlawfully did then and there intend to cause serious bodily injury to Tommie 

Booth and did then and there commit and [sic] act clearly dangerous to human 

life, to wit: shooting said Tommie Booth with a firearm, a deadly weapon, and 

did then and thereby cause the death of Tommie Booth, and [sic] individual, you 

will find the defendant guilty of Murder. 

It is the application paragraph which applies the pertinent penal law, abstract definitions, and 

general legal principles to the particular facts and the indictment allegations. See Vasquez v. 

State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). “‘It is the application paragraph of the 

charge, not the abstract portion, that authorizes a conviction.’” Yzaguirre v. State, 394 S.W.3d 

526, 530 (Tex. Crim. App. 2013) (quoting Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. 

App. 2012)). The application paragraph “explains to the jury, in concrete terms, how to apply 

the law to the facts of the case.” Id. Accordingly, we should look to the application paragraph to 

determine whether the jury was correctly instructed in order to resolve a harm analysis. Id. 

“Where the application paragraph correctly instructs the jury, an error in the abstract instruction 

 2 Appellant objects to a definition of “knowingly” that does not appear in the jury charge. The definition of 

“knowingly” which appears in the jury charge does not include the following sentence which appellant included in 

his brief: “A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to the 

circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances 

exist.” 
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is not egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). With these 

principles in mind, we will proceed to conduct a harm analysis using the Almanza factors.3 See 

Dougherty v. State, PD-1411-05, 2006 WL 475802, at *1 (Tex. Crim. App. March 1, 2006) (per 

curiam) (not designated for publication) (reversing appellate court that did not conduct analysis 

using all Almanza factors).

The first Almanza factor requires consideration of the entire jury charge. See Almanza, 

686 S.W.2d at 171. Here, the application paragraph of the jury charge clearly provides that any 

conviction of appellant required a finding of a specific intent to commit the offense of murder. 

Accordingly, the charge as a whole does not weigh in favor of egregious harm. See Medina, 7 

S.W.3d at 640.

The second Almanza factor involves the state of the evidence, including the contested 

issues and weight of the probative evidence. See Almanza, 686 S.W.2d at 171. As analyzed 

above, we determined that the facts were sufficient for the jury to have convicted appellant of 

murder. As such, the state of the evidence does not favor a finding of egregious harm. 

The third Almanza factor involves the argument of counsel. See Almanza, 686 S.W.2d at 

171. In its closing argument, the State noted that an intentional or knowing killing constitutes 

murder. The State argued that the medical evidence supported the conclusion that the appellant 

shot Booth while Booth was on the ground. Thus, the State argued as follows: “Isn’t that 

[shooting at Booth on the ground] reasonably certain to cause the result of death? When he 

engaged in the conduct, conduct that reasonably certain to cause the result, that is a knowing 

killing. That is murder.” The State did not, however, argue that a murder conviction could result 

from the appellant intentionally engaging in conduct that happened to cause death. Thus, the 

argument of counsel does not favor a finding of egregious harm. 

 3 Although appellant mentions the Almanza factors, there is no application of the factors to a harm analysis.
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The final Almanza factor addresses any other relevant information revealed by the record 

of the trial as a whole. See Almanza, 686 S.W.2d at 171. We are not aware of “any other 

relevant information” that we should consider.

Thus, in light of the Almanza factors, we are unable to conclude that appellant suffered 

egregious harm from the definition of “intentionally” in the abstract section of the jury charge. 

Accordingly, we overrule appellant’s first issue.

III. CONCLUSION

We resolve appellant’s issues against him and affirm the trial court’s judgment.

/ DAVID EVANS/

DAVID EVANS

JUSTICE

Do Not Publish

TEX. R. APP. P. 47

131072F.U05
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

EXZAYVIA COSBY, Appellant

No. 05-13-01072-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. F12-01027-U.

Opinion delivered by Justice Evans. 

Justices Myers and O'Neill participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 21st day of May, 2015.