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

NO. 03
- 18
- 00578
- CR

Krystal Nicole Lerma, Appellant

v. The State of Texas, Appellee

FROM THE 391ST DISTR ICT COURT OF TOM GRE EN COUNTY NO. D
- 17
- 0115
- SA, TH E HONORABLE BEN WOOD WARD, JUDGE PRESIDIN G

M E M O R A N D U M O P I N I O N
A jury found appellant Krystal Nicole Lerma guilty of burglary of a habitation, and the trial court sentenced her to 27 years ’ imprisonment . In eight points of error, Lerma contends that the evidence was insufficie n t to support her conviction and that the trial court committed various errors in the jury charge. We will affirm the trial court ’ s judgment of conviction.

DISCUSSION Sufficiency of the Evidence

In her first point of error, Lerma contends that the evide n ce was insufficient to support her conviction

. “ In assessing the sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reaso n able inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. ” Braughton v. State , 569 S.W.3d 592, 607

– 08 (Tex. Crim. App. 2018) (internal quotation marks omitted). “ We2

measure the evidence b y the elements of the offense as defined by the hypothetically correct jury charge. ” Id. at 608

. “ This familiar standard recognizes the trier of fact ’ s role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferenc e s from the evidence. ” Id. (internal quotation marks omitted). “ On review, this Court determines whether the necessary inferences made by the trier of fact are reasonable, based upon the cumulative force of all the evidence

. ” Id. (internal quotation mar ks omitted). “ We presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we defer to that resolution. ” Id.

Here, the indictment alleged that Lerma committed burglary by entering the habitation of Jimmy Andrew Gonzal es without his effective consent with the intent to commit robbery. A s relevant to this case, a person commits burglary if she enters a habitation without the effective consent of the owner with the intent to commit a felony other than theft. See
Tex. Pe na l Code § 30.02 (d). In addition, “ [a] person is criminally responsible for an offense committed by the conduct of another if

. . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense

. ” Id. § 7.02 (a)(2)

.

At trial, the State presented evidence of the following:

• On the evening of September 12, 2016, Lerma entered Gonzales ’ s home

. Anthony Martinez was also present in the home when Lerma a rri ved.

• As Lerma was leaving the home, three men rushed inside. One of these men was Raymond Alvarado , Jr

.

• Alvarado shot and killed Gonzales and Martinez

.

• Police extracted a “ Snapchat conversation ” between Lerma and Alvarado f rom Lerma ’ s phone. This r eco rd showed that , at 9:03 p.m. on the evening of the shooting s , Lerma sent3

Alvarado the following message s: “ I want a tv too. Idc [ 1 ] which one but I want one. If I can do my part & it goes thru, then I want a TV[.] ” “ My babies broke theirs so I really n ee d one. ”

• Photos of Gonzales ’ s home taken after the sho otings showed mu ltiple flat

- screen televisions.

• Phone records showed that Lerma called Alvarado at 8:48 , 8:52 , and 9:20 p.m. and that she received a call from Alvarado at 9:30 p.m . The records also sh owed that Lerma missed a call from Alvarado at 10:00 p.m.

• A neig hbor who heard gunshots called 911 at 10:28 p.m.

In addition, the State presented video recordings of two interviews between Lerma and police. In the first interview, Lerma denied th a t she went to Gonzales ’ s home on the night of the shootings. Accord ing to Lerma, she was expect ing Gonzales to come to her home that evening to pick up some food, but he never came. However, during the second interview
Lerma confirmed the following :

• S h e had previously been in a sexual relationship with Gonzales , and he had lived with her for a while.

• She had been “ really good friends with ” Alvarado for a long time.

• Alvarado had told Lerma that he wanted to “ beat up ” and “ rob ” Gonzales. Lerma knew th a t Alvarado had problems with Gonzales because of an incident involvi ng a nother woman.

• She knew that Alvarado had tried to “ set up ” Gonzales in the past.

• She spoke with Alvarado on the phone on the night of the shooting s and told him that she was heading t o Gonzales ’ s home

.

• After speaking with Alvarado, she knew that Alva rado wanted her to call him when she arrived at Gonzales ’ s home because Alvarado wanted to rob Gonzales.

1 A detective testified that “ I DC ” st and s for “ I don ’ t care. ”4

• She went to Gonzales ’ s home to get some marihuana, because Gonzales was a drug de a ler.

• As she was leaving Gonzales ’ s home, Alvarado rushed past her in to the home. She then ran away and did not look back. She did not call the police

.

• She admitted that she should have taken Alvarado seriously , that she “ should have known, ” and that s h e should have “ said something. ” She stated , “ [Gonzales is ] dead because o f me and [Martin ez is] dead because of me. ” She denied that she intended to set them up and denied knowing that Alvarado wanted to kill Gonzales

.

• She stated, “ I don ’ t want to go t o trial ” and asked if she could just “ do like a plea deal or something. ”
Viewing this evidence in the light most favorable to the verdict , we conclude that

a r ational juror could have concluded that Alvarado entered Gonzales ’ s habitation without hi s

e ff ective consent with the intent to commit robbery . Based on Lerma ’ s prior kn owledge that Alvarado intended to rob Gonzales , the phone records, the Snapchat conversation, the fact that Lerma denied going to Gonzales ’ s home during her earlier police inter v ie w, and Lerma ’ s admissions during her second interview , a rational juror coul d also have concluded that Lerma inten ded to promote or assist the commission of the offense by aiding Alvarado in entering Gonzales ’ s home

. Accordingly, we conclude that the e v id ence was sufficient to support Lerma ’ s conviction, and we overrule her first point of error.
Jury Charge Error

In her second through eig hth points of error, Lerma contends that the trial court committed various errors in the jury charge. We review all e ged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. See Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza v . S t ate , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh ’ g)) ;5

DeLeon v. State , No. 0 3

- 18

- 00268

- CR, 2018 WL 6837742, at *1 (Tex. App.

— Austin Dec. 28, 2018, pet. ref ’ d) . Here, Lerma did not object to the alleged errors at trial or request alternate
i ns tr uctions , so any error “ will not result in reversal of the conviction without a showing of egregious harm

. ” Price , 457 S.W.3d at 4 40

. “ The purpose of the egregious

- harm inquiry is to ascertain whether the defendant has incurred actual, not just theore ti ca l, harm. ” Swearingen v.
State , 270 S.W.3d 804, 813 (Tex. App.

— Austin 2008, pet. ref ’ d)

. “ Egregious harm is harm that deprives a defendant of a fair and impartial trial. ” Price , 457 S.W.3d at 440 (internal quotation marks omitted). Stated differentl y, “ [j] ury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, o r vitally affects a defensive theory. ” Arteaga v. State , 521 S.W.3d 329, 338 (Tex. Crim. App. 2017)

.

Comment on the Wei g h t of the E vidence In her second point of error , Lerma contends that the trial court improperly commented on the weig ht of the evidence in violation of Texas Code of Criminal Procedure article 36.14 by including the following language in the jury charge :

In judging the facts and the believability of the witnesses, you must apply the law provided in these instructions.

. . . . While you should consider only the evidence, you are permitted to draw reasonable inferences from the testimony and exhibits tha t are j ustified in the light of common experience. In other words, you may make deductions and reach conclusions that r eason and common sense lead you to draw from the facts that have been established by the evidence

.
These instructions are correct stat e m ents of the law. See Watson v. State , No. 03

- 19

- 00015

- CR, 2019 WL 2939247, at *2 (Tex. App.

— Austin July 9, 2019, no pet. h.) (mem. op.,6

not designated for publication) ; see also Johnson v. State , 560 S.W.3d 224, 226 (Tex. Crim. App. 2018) (noting that i t is “ t he jury ’ s role to resolv e conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts ” ) (internal quotation marks omitted); Boston v. State , 373 S.W.3d 832, 836 (Tex. App.

— Austin 2012), aff ’ d , 410 S.W.3d 321 (Tex. Crim. App. 2013) ( “ The jury, as the exclusive judge of the facts, is entitled to weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom. ” )

. In addition, these instructions follow the Texas Pattern Jur y Charg e. See State Bar of Tex ., Texas Criminal Pattern Jury Charges: The General Charge , CPJC 2.1 (2018); see also H.E. Butt Grocery Co. v. Bilotto , 928 S.W.2d 197, 199 , 200 (Tex. App.

— San Antonio 1996), aff ’ d , 985 S.W.2d 22 (Tex. 1998) (noting that, whi l e the Texas Pattern Jury Charg es “ are not

‘ law ’ , they are heavily relied upon by both the bench and bar ” and are “ a widely accepted source throughout the legal community ” )

. Accordi ngly, we conclude that the trial court did not err in including th ese inst r u ction s, and we ov errule Lerma ’ s second point of error.

Re maining Jury Charge Issues

I n her third point of error, Lerma contends tha t the trial court erred in including a definition of “ recklessly ” in the jury charge. Lerma notes that the indictment al le ges that she entered a habitation with the intent to commit robbery, not that she actually committed robbery, and argues that one can not intend to act recklessly.

In h er fourth point of error, Lerma contends that the t rial court erred in d efinin g

“ k nowingly

. . . in terms of circumstances

- surrounding

- conduct ” by including the following language : “ A person acts knowingly, or with knowl edge, with respect to the nature of her7

conduct or to circumstances surrounding her con duct when she is awar e of t he n ature of her conduct or that the circumstances exist. ”

In her fifth point of error, Lerma contends that the trial court erred in “ failin g to instruct the jury that it must apply a result

- of

- conduct definition of ‘ with inten t ’ to the law of part ies ” w hen it inclu ded the following instruction:
A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, she solicits, encourage s, direct s, aids, or att empt s t o aid the other person to commit the offense. A defendant acts with intent to promote or assist in the commission of an offense when it is her conscious objective or desir e to promote or assist in the commission of the off ense.

In her sixth point of e rro r, Lerma contends that the trial court erred in “ failing to instruct the jury that it should apply only a result

- of

- conduct definition of ‘ with intent ’ to the charged offe nse of burglary with intent to commit robbery. ”

I n her seventh point o f erro r, L erm a contend s that the trial court erred in “ failing to instruct the jury that it should apply only a result

- of

- conduct definition of ‘ int entionally ’ or

‘ with intent ’ to the offense of robbery. ”

I n her eighth and final poin t of error, Lerma con tends that th e trial c ourt erred in

“ failing to instruct the jury that it should apply only a result

- of

- conduct definition of ‘ knowingly ’

or ‘ with k nowledge ’ to the offense of robbery. ”

For the purposes of our analysis, we will assum e , without deciding, that t he se ju ry instru ctions were erroneous in the ways that Lerma describes. Nevertheless, we will reverse the trial court ’ s judgment only if we con clude that the court ’ s errors caused Lerma egregious harm.
See Pr ice , 457 S.W.3d at 440

. “ In examining the recor d for egregious harm, we consider the8

entire jury charge, the state of the evidence, the closing arguments of the parties, and any other relev ant information in the record. ” Art eaga , 521 S.W.3d at 338

. Entire Jury Charge
All of the errors about which L erm a complains in her third through ei ghth points of error occur in the abstract portion of the jury charge , not in the application paragraph

. “ W here the application paragraph correct ly instructs the jury, an error in t he a bstract instruction is not
egre g iou s. ” Medina v. State , 7 S.W.3d 63 3, 640 (Tex. Crim. App. 1999) ; s ee Vasquez v. State , 389 S.W.3d 361, 367 (Tex. Crim. App. 2012) (noting that the application paragraph is “ the hear t and soul of the jury charge ” ) (int erna l quotation marks omitted); Isr e a l v . State , No

. 03

- 17

- 00296

- CR, 201 8 WL 5 305502, at *7 (Tex. App.

— Austin Oct. 26, 2018, pet. ref ’ d) (mem. op., not designated for publication) ( “ We presume that the jury followed the instructions given

. For that reason , wh en the application paragraph of t he jury charge correctly instructs the ju ry on the law applicable to the case, error in the abstract instruction is not egregious. ” ) (citations omitted); Kuhn v. State , 393 S.W.3d 519 , 529 (Tex. App.

— Austin 2013, pet. r ef ’ d ) ( colle cting cases and explainin g, “ In differe nt contexts, Texa s courts have repeatedly held that wh ere th e application paragraph of the charge correctly instructs the jury on the law applicable to the case, this mitigates against a finding that an y error in the abstract portion of t he c har ge was egre gious. ” )

.

“ Generally, reversible e rror o ccurs in the giving of an abstract instruction only when the instruction is an incorrect or misleading statement of a law that the jury must u nderstand in order to implement the comm ands of the applica tio n paragra p h. ” Crenshaw v. State , 378 S.W.3d 4 60,
46 6 (Tex. Crim. App. 2012)

.9 However, some of the terms found in the app lication paragraph rely on definitions given in the abstract portion. For example, the term “robbery ” in the application paragrap h i s tied to th e definition of robbery in the abst ra ct portion, which includes the mental state of recklessness . Acco r d ingly, w e conclude that the en tire ty of the charge weighs slightly in favor of a finding of egregious harm

.

Sta te of the Evidence
T he only truly d ispu ted issue at trial was Lerma ’ s mens rea

— there was no question that she wa s present when Alvarado and his companions entered Gonzales ’ s home

. As discussed above, the Stat e pre sented strong evidence that Lerma intended to aid Alvarado , in clu di ng pho ne r ecords showing calls between Lerma and Alvarado shortly before the shooting s , a Snapchat conv ersation in which Lerma demands a television, Lerma ’ s initial denial that she went to G onzales ’ s home, and Lerma ’ s admissions during her second poli ce int erview th at she knew Alvarado intended to rob Gonzales and that she ran away as soon as Alvarado
enter ed Gonzales ’ s home and did not call the police

.

In addition, none of the evidence in the record before us suggests that Alvarado caused bodil y inj ury with a cu lp able mental state less than inte ntionality . Instead, the evidence shows that Alvar ado intended to “ beat up ” and “ rob ” Gonzales , that he rushed into Gonzales ’ s home, and that he fatally shot both Gonzales and Martinez

. Therefore, there was lit tle danger

o f the jury returning a guilty verdict despite finding that Alvarado (and, by the law of parties, Lerma) acted with mere recklessness.

For these reasons, w e conclude that the state of the evid ence weighs heavily against a finding of egregio us harm

.10

A rgum e nt s of Counsel and Other Information in the Record During the State ’ s closing argument, the prosecutor stated that it was the jury ’ s role to decide “ what weight to give what evidence ” and that it mus t mak e its decision “ based on the e vid ence [it] he ard in trial. ” The pr osecut or emphasized that the jury ’ s “ big decision ” would be whether Lerma acted with the intent “ to pr omote or assist the unlawful entry into [Gonza les ’ s] home so that a robbery could be ac complished. ” The prosecutor a lso described i n de tail the evidence that L erma intended to assist the burglary . Nothing the prosecutor said exacerbate d any harm the jury charge errors may have caused . For example, the prose cutor never argued that the jury could find Lerma guilty i f it co nclu ded that Alv arado recklessly caused bodily injury
to Gonzales. During his closing argument, Lerma ’ s counse l exp lained intenti onality as follows:
So you ’ re going to have to find

— if yo u ’ re going to find Ms. Lerma guilty, you ’ re going to have to fi nd beyond a reasonab le doubt that it was her conscious objective to assist in t his robbery. It wasn ’ t her consciou s obj ective just to go over there and get some marijuana. Regardless of what she knew about the bad blood between the parties, was it her

— yo u h ave to decide bey ond a reasonable doubt that it was her conscious objective to assist in this robbery and assist by g oing into the house and providing them with a way to get in.

Th ese statem ents , which Lerma does not complain about on appeal, explained to the jur y the

nece ssary findings concerning intentionality and are consistent with the application paragraph in
t he ju ry charge

.

W e are not aware of any other information in the record before us that is relevant to our har m analysis. Accordingly, we c onc lud e th a t the arg uments of counsel and other relevant
in formation weigh again st a f inding of egregious harm.11

Summary of Harm Analysis Having concluded that the entirety of the jury charge weighs slightly in f avor of

a finding of harm , that the stat e o f the e vidence wei ghs heavily against a finding of harm , and that the argu ments of counsel and other information i n the record weigh against a finding of harm, we hold that the alle ged ju ry charge errors about which Lerma complains did not cause her
egr egi ous h a r m. Accordi ngly, we overrule her third through eighth points of e rror.

CONCLUSION We affirm the tri al co urt ’ s judgment of conviction.

__________________________________ ________ Chari L. Kelly, Justic e Before Justice s Goodwin, Baker, an d Kel ly Affirmed Filed: August 14, 2019 Do Not Publish