IN THE

TENTH COURT OF APPEALS

No. 10-15-00378-CR

LARSON EDWIN MOORE III,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court No. 14-030-CR

MEMORANDUM OPINION

In two issues, appellant, Larson Edwin Moore III, challenges his capital-murder 

conviction. See TEX. PENAL CODE ANN. § 19.03 (West Supp. 2016). Specifically, Moore 

contends that the evidence is legally insufficient to support his conviction and that the 

jury charge did not properly instruct the jury that the burglary in support of the capitalmurder conviction must be directed at someone other than the victim that was murdered. 

We affirm.
Moore v. State Page 2

I. LEGAL SUFFICIENCY OF THE EVIDENCE

In his first issue, Moore asserts that the evidence supporting his conviction is 

insufficient because “the evidence shows that appellant’s purpose in entering the victim’s 

house was to commit a felony against the victim (not against the victim’s brother as the 

State argued).” In other words, Moore argues that the State improperly bootstrapped to 

get a charge of capital murder.

A. Standard of Review

In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of 

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a 

conviction, a reviewing court must consider all of the evidence in the light 

most favorable to the verdict and determine whether, based on that 

evidence and reasonable inferences therefrom, a rational fact finder could 

have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); 

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar 

standard gives full play to the responsibility of the trier of fact fairly to 

resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 

319. “Each fact need not point directly and independently to the guilt of 

the appellant, as long as the cumulative force of all the incriminating 

circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d 

at 13.

Id.

Our review of "all of the evidence" includes evidence that was properly and 

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if 

the record supports conflicting inferences, we must presume that the factfinder resolved 
Moore v. State Page 3

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson, 

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are 

treated equally: “Circumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to 

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder 

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or 

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 

(Tex. Crim. App. 1991).

The sufficiency of the evidence is measured by reference to the elements of the 

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four 

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not 

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s 

theories of liability; and (4) adequately describes the particular offense for which the 

defendant was tried. Id.

B. Discussion

Here, the indictment charged Moore with the offense of capital murder under 

section 19.03 of the Penal Code and provided the following allegations:

Defendant, on or about the 9th day of February A.D., 2014, and before the 

presentment of this indictment, in the County and State aforesaid,
Moore v. State Page 4

did then and there intentionally cause the death of an individual, 

namely Marjorie Pevehouse, by stabbing Marjorie Pevehouse with a sharp 

edged instrument and striking her in the head with an object unknown to 

the Grand Jury, and the defendant was then and there in the course of 

committing or attempting to commit the offense of burglary of a habitation 

of Marjorie Pevehouse, who was the owner of said habitation . . . .

Section 19.03 of the Penal Code provides the following:

(a) A person commits an offense if the person commits murder as defined 

under Section 19.02(b)(1) and:

. . . .

(2) the person intentionally commits the murder in the course of 

committing or attempting to commit kidnapping, burglary, robbery, 

aggravated sexual assault, arson, obstruction or retaliation, or 

terroristic threat . . . .[1]

TEX. PENAL CODE ANN. § 19.03. Furthermore, section 30.02(a), entitled “Burglary,” states 

that:

(a) A person commits an offense if, without the effective consent of the 

owner, the person:

(1) Enters a habitation, or a building (or any portion of a building) 

not then open to the public, with intent to commit a felony, theft, 

or an assault; or

(2) Remains concealed, with intent to commit a felony, theft, or an 

assault, in a building or habitation; or

(3) Enters a building or habitation and commits or attempts to 

commit a felony, theft, or an assault.

 

1 “‘[I]n the course of committing’ is defined as conduct occurring during an attempt to commit, 

during the commission of, or in immediate flight from, the forbidden behavior.” See Griffin v. State, 491 

S.W.3d 771, 774-75 (Tex. Crim. App. 2016) (citing Rivera v. State, 808 S.W.2d 80, 93 (Tex. Crim. App. 1991)). 
Moore v. State Page 5

Id. § 30.02(a) (West 2011). 

At trial, Brent Watson, a forensic scientist in the DNA section of the Texas 

Department of Public Safety Crime Lab, testified that the front-door jamb of the victim’s 

house was damaged and showed “that there could potentially be a forced entry into the 

residence.” Jake Burson, a Ranger with the Texas Rangers Division, agreed with 

Watson’s conclusion and stated that: “The door frame was split. In addition to the door 

frame being spilt, there was also a shoe print on the door which is a fairly good indication 

the door was forced open.” Further, upon entering the residence, investigators observed 

Pevehouse’s body covered in blood, as well as a bloody $100 bill in her left hand. And a 

few feet away from Pevehouse’s body was a knife. 

Dr. Emily Ogden, a medical examiner at the Dallas County Medical Examiner’s 

Office, testified that Pevehouse had multiple stab and blunt-trauma wounds around her 

head and chest—none of which would have, by themselves, immediately caused death. 

Dr. Ogden noted that, based on the severity, extent, and detail of the injuries, Pevehouse 

struggled with her killer prior to her death. The ultimate cause of Pevehouse’s death was 

“[s]harp and blunt force injuries.”

Moore’s uncle, Charles Wright, testified that, on the night of the incident, Moore 

came to his house. Wright noticed that Moore had blood on his face and clothes. Wright 

asked Moore if he had been hurt, but Moore simply moved his finger at him. Moore 

asked Wright for a gun; however, Wright did not have a gun at the residence. Later, 
Moore v. State Page 6

Moore picked up a pen on the table and wrote on a sheet of paper. In very bad 

handwriting, Moore wrote, “I killed her.” Wright also opined that Moore was acting very 

strangely that night. In particular, Moore hit Wright in the mouth, drawing blood and 

knocking out two teeth; Moore demanded that Wright leave his own house; Moore 

kicked in walls at Wright’s house; and Moore spoke in a strange and hard-to-understand 

manner. 

Sergeant William Flores of the Texas Rangers testified that he had expertise in 

blood analysis. Sergeant Flores analyzed the clothing that Moore wore on the night of 

the incident and determined that there was blood on Moore’s jeans, long-sleeved shirt, 

shoes, and short-sleeved t-shirt. Sergeant Flores characterized the blood as “saturation” 

and “spattering” stains and noted that subsequent DNA testing revealed that the blood 

on Moore’s clothing was Pevehouse’s and that the DNA of Pevehouse and Moore was 

mixed together.2 Furthermore, when asked about the conclusions drawn from his 

investigation of the incident, Sergeant Flores opined:

My written conclusion on the examination is that Marjorie Pevehouse died 

as a result of multiple sharp force injuries and blunt force traumas reported 

in the SWIFS autopsy report analysis of the digital images indicates that 

active and dynamic blood shedding event occurred at the scene. That’s my 

evaluation.

 

2 Sergeant Flores defined a “saturation” stain as “an accumulation of liquid, blood and absorbent 

material.” He later noted that a “spatter” stain is: 

a stain that’s been produced from blood that’s been moved through the air due to an 

impact. So if there was liquid here and it was impacted the liquid that flew away from that 

impact area would be spatter in motion and then when it hit another surface it would 

create a spatter stain.
Moore v. State Page 7

A DNA analysis of blood recovered from clothing worn by Larson 

Moore indicated a single source DNA profile of Marjorie Pevehouse was 

present as follows on this clothing: in 6 of the 11 stains on the jeans, 3 of the 

8 stains on the shirt, the long sleeve shirt—2 of 3 stains on the shoes and—

and 1 of the 5 stains identified on the black t-shirt.

. . . .

It is my opinion that Larson Moore was present in the crime scene at 

the time that Marjorie Pevehouse received blood letting injuries and while 

Marjorie Pevehouse’s blood was in dynamic motion within that crime 

scene. 

Despite the aforementioned evidence, Moore contends that section 19.03(a)(2) of 

the Penal Code does not apply when a defendant enters a home for the sole purpose of 

murdering the victim. See TEX. PENAL CODE ANN. § 19.03(a)(2). Essentially, Moore argues 

that the State improperly used the intentional murder of Pevehouse as a circumstance 

transforming Moore’s purported illegal entry of the habitation into a burglary, and then 

used the same intentional murder coupled with the burglary to establish the offense of 

capital murder. 

In response to Moore’s contention, the State directs us to the Court of Criminal 

Appeals’s decision in Homan v. State. See generally 19 S.W.3d 847 (Tex. Crim. App. 2000). 

In Homan, appellant was indicted for the capital murder of Stephanie Homan, though the 

State opted not to seek the death penalty. Id. at 847. Appellant pleaded not guilty to the 

indictment, and the jury was instructed on both capital murder and the lesser-included 

offense of murder. Id. Ultimately, the jury found appellant guilty of capital murder, and 
Moore v. State Page 8

the trial court sentenced appellant to life imprisonment. Id. On appeal, the Tyler Court 

of Appeals determined that the evidence was insufficient to prove the charge of capital 

murder, but upheld appellant’s conviction on the lesser-included offense of murder. Id.

at 847-48. “The Tyler Court of Appeals concluded that the murder of the victim could 

not be used to make the entry into her home a burglary and, at the same time, use the 

burglary as the aggravating offense to make the murder into a capital murder.” Id. at 848.

In reversing the Tyler Court of Appeals, the Court of Criminal Appeals noted the 

following:

We note the merger doctrine, however, does not apply to the instant capital 

murder. See Barnard v. State, 730 S.W.2d 703, 709 (Tex. Crim. App. 1987). 

Rather, it would be more accurate to describe appellant’s claim in this cause 

as an argument that the State improperly bootstrapped to get a charge of 

capital murder. The court of appeals essentially decided that the State 

improperly used the intentional murder of Stephanie Homan as the 

circumstance transforming appellant’s illegal entry of the habitation into a 

burglary, and then used the same intentional murder coupled with the 

burglary to establish the offense of capital murder. This Court rejected the 

same bootstrapping argument in Fearance v. State, 771 S.W.2d 486, 492-93 

(Tex. Crim. App. 1988), cert. denied, 492 U.S. 927, 109 S. Ct. 3266, 106 L. Ed. 

2d 611 (1989).

This Court concluded in Fearance that appellant engaged in 

“felonious criminal conduct, specifically, at the time [the victim] was 

murdered. This conduct was a property offense. Therefore, there was a 

showing of felonious criminal conduct other than the assault which caused 

the death of [the victim].” Fearance, 771 S.W.2d at 493. This Court has 

upheld capital murder convictions, concluding that the evidence 

sufficiently established the underlying felony of burglary by murder of the 

victim following the unlawful entry into the habitation. Fearance v. State, 

and Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995) (where 

evidence showed appellant entered the victim’s habitation without 

permission and subsequently murdered the victim, this Court concluded 
Moore v. State Page 9

the intent necessary to establish the felony of burglary was shown by the 

ultimate murder of the victim.) This Court has rejected other claims 

regarding bootstrapping in Barnard v. State, 730 S.W.2d at 708-09 and in 

Barber v. State, 737 S.W.2d 824, 835 (Tex. Crim. App. 1987).

Id. at 849.

As noted earlier, the record shows that the front-door jamb to Pevehouse’s

residence was damaged and that there was a footprint on the front door. The State’s 

witnesses characterized these facts as evidence of forced entry, and the jury could have 

reasonably concluded that Moore entered Pevehouse’s residence without permission. 

And similar to Fearance, Homan, and Matamoros, the evidence in this case reveals that 

Moore engaged in felonious criminal conduct at the time that Pevehouse was murdered. 

See id. at 849; see also Matamoros, 901 S.W.2d at 474; Fearance, 771 S.W.2d at 493. This 

conduct was a property offense. Thus, there was a showing of felonious criminal conduct 

other than the assault that caused the death of Pevehouse. Accordingly, in light of 

Fearance, Homan, and Matamoros, we reject Moore’s bootstrapping argument. See Homan, 

19 S.W.3d at 849; see also Matamoros, 901 S.W.2d at 474 (“In a capital murder prosecution, 

the requirement that a felony be committed is satisfied by the actual murder of the 

victim. . . . That requirement was met in this case. As to the absence of consent, the 

evidence is sufficient to establish that Goebel was sleeping in his bed when appellant 

entered the house without the victim’s knowledge or consent and that appellant 

surprised and killed him.”); Fearance, 771 S.W.2d at 493. Moreover, viewing the evidence 

in the light most favorable to the jury’s verdict, we conclude that there is sufficient 
Moore v. State Page 10

evidence to support Moore’s conviction for capital murder. See TEX. PENAL CODE ANN. § 

19.03(a)(2); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894; 

Hooper, 214 S.W.3d at 13. We therefore overrule Moore’s first issue. 

II. THE JURY CHARGE

In his second issue, Moore complains about the jury charge. In reviewing a jurycharge issue, an appellate court’s first duty is to determine whether error exists in the 

jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If error is found, 

the appellate court must analyze that error for harm. Middleton v. State, 125 S.W.3d 450, 

453-54 (Tex. Crim. App. 2003). If an error was properly preserved by objection, reversal 

will be necessary if the error is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex. 

Crim. App. 1985). Conversely, if error was not preserved at trial by a proper objection, a 

reversal will be granted only if the error presents egregious harm, meaning appellant did 

not receive a fair and impartial trial. Id. To obtain a reversal for jury-charge error, 

appellant must have suffered actual harm and not just merely theoretical harm. Sanchez 

v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. State, 721 S.W.2d 348, 352 

(Tex. Crim. App. 1986).

The record reflects that Moore did not object to the jury charge; thus, the record 

must show egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for 

egregious harm, we consider the entire jury charge, the state of the evidence, the final 

arguments of the parties, and any other relevant information revealed by the record of 
Moore v. State Page 11

the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jurycharge error is egregiously harmful if it affects the very basis of the case, deprives the 

defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 

S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. 

App. 2006). 

Moore’s second issue is premised on his first issue. Specifically, Moore asserts 

that:

If this Court concludes that there is somehow evidence to support the 

State’s theory that appellant intended to murder or harm the victim’s 

brother when he entered the victim’s home, it should nevertheless reverse 

for a new trial because the jury charge does not adequately instruct the jury 

that the burglary, to support capital murder, must be directed at someone 

other than the victim that was murdered. The charge suggests that 

appellant is guilty of capital murder even if he entered the home with the 

intent to kill the victim.

As mentioned earlier, the Court of Criminal Appeals has upheld capital-murder 

convictions, concluding that the evidence sufficiently established the underlying felony 

of burglary by murder of the victim following the unlawful entry into the habitation. 

Homan, 19 S.W.3d at 849 (citing Matamoros, 901 S.W.2d at 474; Fearance, 771 S.W.2d at 493). 

Moreover, the charge in this case included instructions on both capital murder and the 

lesser-included offense of murder. The jury unanimously concluded that Moore was 

guilty of capital murder tied to the burglary of Pevehouse’s habitation.

After reviewing the charge and the Homan, Fearance, and Matamoros decisions, we 

cannot say that the charge instruction for capital murder is erroneous. See id.; see also 
Moore v. State Page 12

Matamoros, 901 S.W.2d at 474; Fearance, 771 S.W.2d at 493. Accordingly, we overrule 

Moore’s second issue.

III. CONCLUSION

Having overruled both of Moore’s issues on appeal, we affirm the judgment of the 

trial court.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed November 23, 2016

Do not publish

[CRPM]