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

NO. 03
- 22
- 00494
- CR

Gloria Elizabeth Romero
- Perez , Appellant

v. The State of Texas, Appellee

FROM THE 274TH DISTRICT COURT OF COMAL COUNTY NO. CR2016 -659 , THE HONORABLE GARY L. STEEL , JUDGE PRESIDIN G

M E M O R A N D U M O P I N I O N
A jury convicted appellant Gloria Elizabeth Romero

- Perez of the offense of continuo us trafficking of persons and assessed punishment at 25 years ’ imprisonment. See Tex. Penal Code § 20A.03

. The district court se nt enc e d Romero

- Perez in accorda nce with the jury’ s verdict. In a single point of error on appeal, Romero

- Perez asserts that the district court erred in including an instruction on criminal conspiracy in the jury charge. We will affirm the judgme nt.

BACKGROUND
T he State charged Romero

- Perez with trafficking her niece, A.L. ( “Abby” ), who

was fifteen years old at the time of the offense. 1 According to the evidence presented at trial, when Abby was thirteen years old, Romero

- Perez paid approximately $ 6,000 to smuggle Abby

1 We refer to the child by a pseudonym to prot ect her identity.2 and the child ’ s grandmother into the United States

. Upon Abby ’ s arrival in Texas, she lived with
Romero

- Perez , who acted as the child ’ s primary caretaker. Abby and Romero

- Perez did not get along well, and Abby was sent to live temporaril y wit h Romero

- Perez ’ s sister . There, Abby met Julio Jimenez, a 33

- year - old man , and developed a relation ship with him. When Abby return ed to Romero

- Perez, th at relationship continued, and at one point she ran away from h ome and st ayed with Jimenez

. When
Rome ro - Perez learned of this, she called Jimenez and told him that she wanted to talk to him “about the situation that was happening with [ Abby ].” She explained to Jimenez that she and Abby were “having problems” and “could not live together” anymore but that Romero

- Perez had paid $6,000 to “bring her here,” and “if she ’ s going to be with you, then you have to pay me that

mon ey that I paid to

— to bring her over here.” A meeting was arranged between Romero

- Perez and Jimenez to discuss the matter further, a nd at the conclusion of the meeting, Romero

- Perez and Jimenez agreed that Jimenez would pay her $700 per month in exchange for Romero

- Perez allowing Abby and Jimenez to live together

. Abby was fifteen years old when Romero

- Perez made the agreement with Ji menez
. The State presented testimonial and do cumentary evidence of the agreement and the payments that Jimenez ma de

. After the meeting , Abby went to live with Jimenez, and they had sexual intercourse at Jimenez ’ s residence on multiple occasions , with Abby even tually becoming pregnant

. At some point ther e after , Jim enez refused to mak e further payments to Romero

- Perez, and Romero

- Perez later reported to the police that Abby was a runaway, that she was li ving wit h Jimenez, and that Abby was pregnant wit h Jimenez ’ s child. During the sub sequent investigation , the police learned of the agreement between Jimenez and Romero

- Perez and charged t h em both with trafficking offenses. Jimenez pleaded guilty to the offenses of continuous trafficking of3 persons, sal e or purch ase of a child, sexual a ssault of a child, and indecency with a child by
contact. He was sentenced to 30 years’ imprisonment for trafficking, 10 years’ imprisonment for sale or purchase of a child, and 20 years’ imprisonment for sexual assault a nd ind ecen cy, with the sentences t o run concurrently. Romero

- Perez was acquitted of the offense of sale or purchase of a child but convicted of continuous trafficking of persons and sentenced to 25 years ’ imprisonment as noted ab ove. This appeal followed

. 2

STAND AR D OF REVIEW
We review claims of jury

- charge error under the two

- pronged test set out in Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh ’ g)

. First, we must determine if there is error in the charge

. Campbell v. State , 664 S.W.3d 2 40 , 245 (Tex . Crim. App. 20 22) (citing Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) )

. “ If there is error, then a harm analysis must be conducted. ” Id

. If the defend ant objected to the charge at trial , “ the record need show only ‘ some harm ’ t o justify re versal of the conviction

. ” Id . (quoting Almanza , 686 S.W.2d at 171 )

. However, i f the defendant failed to object, “ the error will not resul t in reversal of the conviction without a showing of egregious harm.” Price v. S tate , 457 S.W.3d 437, 4 40 (Tex. Cri m. App. 2015).
Romero

- Perez did not object to the char ge in the court below. T hus, “reversal is required only if the error was fundamental in the sense that it was so egregious and created such harm that the defendant wa s deprived of a fair an d impartial trial.” Villarreal v. State ,

2 A more detailed summary of the facts an d procedural history o f this case may be found in this Court’s previous opinion addressing Romero

- Perez’s trial. See State v. Romero

- Perez , No. 03

- 18

- 00122

- CR, 2020 WL 1472361 (Tex. App.

— Austin Ma r. 26, 2020, pet. ref’d) (mem. op., not designated for p ubl ication) (reversing trial court’s order granting Romero

- Perez new trial).4 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). “Cha rge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally aff ects a de fensive theory.” Id

. “Egregious h arm is a ‘high and difficult standard’ to me et, and such a determination
must be ‘borne out by the trial record.’ ” Id . (quoting Reeves v. State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). “In examining the record to d etermine whether char ge error has r esulted in egregious harm to a defendant, we consider (1) the entirety of the jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the arguments of

coun sel, and (4) any other relevan t informatio n revealed by the trial record as a whole.” R eeves , 420 S.W.3d at 816.

DISCUSSION In her sole point of error, Romero

- Perez asserts that the district court erred by including the following instruction on criminal conspir acy in the abstract po rt i on of the jury charge:

A person commits criminal conspiracy if, with intent that a felony be committed:
(1) she agrees with one or more persons that they or one or mor e of them engage in conduct that would constitute the offense; a nd
(2) she or one or m ore of them performs an overt act in purs uance of th e agreement.
An agreement constituting a conspiracy may be inferred from acts of the parties.
It is no defense to prose cution for criminal conspiracy that:
(1) one or more of the c oconspirators is not c ri minally res ponsible for5 the object offens e; (2) one or more of the coconspirators has been acquitted, so long as two or more coconspirators have not been acquitted;
(3) on e or more of the coconspirators has not been prosecuted or c onvicted, has been con vi cted of a d ifferent offense, or is immune from prosecution;
(4) the actor belongs to a class of persons that by definition of the object offense is legally incapable of comm itting the object offense in an individual capacity; or
(5) the object offense w as actually c ommitted.

T he above instruction track ed the language of the criminal

- conspiracy statute

. S ee Tex. Penal Code § 15.02 ( a)

- (c) . Romero

- Perez contends that it should not have been included in the charge because the indictme nt did not allege that s he engaged in a criminal conspiracy. In her view, including th is instruction in the c harge violated the rule that “[t]he jury charge must not enlarge the offense alleged and authorize the jury to convict the defendant on a basis or theory permitted by t he jury charg e but not alleged in the indic tment.” See Castillo v. State , 7 S.W.3d 253 , 258 (Tex. App.

— Austin 1999, pet. ref ’ d) (citing Fella v. State , 573 S.W.2d 548, 548 (Tex. Crim. App. 1978) )

. We disagree. A conspiracy instruc t ion is prop erly inclu de d in a jury charge either when a conspiracy is alleged as a n offense , see Tex. Penal Code § 15.02, or when a conspiracy forms a possible basis for a defendant ’ s criminal responsibility for another ’ s conduct under the law of parties , s ee English v. State , 5 92 S.W.2d 949 , 953

- 55 (Tex. Cr im. App. 1980)

. Considered in the context in which the conspiracy inst ruction was give n here , i t is appa rent that6 the instruct ion was included in connection with the court ’ s instruction on the law of par ties . That instructio n provided th e following:

A person is criminally respons ible as a party to an offense if the offense is c ommitted by h er own conduct, by the conduct of another for which s he is criminally responsible, or by both.
Each party to a n of fense may b e charged wi th commi ssion of the offense.
A person is criminally responsible for an offense committed by the conduct o f another if:

1

. acting with the kind of culpability required for the offense, s he causes or aids an innocent or nonrespons ible person to engage in co nd uct pr ohibited by the defini tion of the offense;

2

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

3

. havi ng a legal duty to pr ev ent co mmission of the offen se and acting with intent to promote or assist its commission, s he fails to m ake a reasonable effort to prevent commission of the offense.
If, in the attempt to carry out a conspiracy to commit one fe lony, a nother felony is com mi tted b y one of the consp irators, all conspirators are guilty of the felony actually committed, though ha ving no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should ha ve been anticipated as a re su lt of the carrying out o f the conspiracy.

This instruction on the law of parties , which immediately preceded the instruction o n conspiracy, track ed the statutory language defining the law of parties

. S ee Tex. Penal Code § § 7.0 1

- .0 2

. Romero

- Perez does n ot claim that the instruction on the law of parties was in any way improper.7 The Court of Criminal Appeals has held that w hen a n instruction on criminal conspiracy is included in the jury charge in connection with a proper in struc tion on the law of
par ti es , th e conspiracy instruction is not erroneous

. See Montoya v. State , 810 S.W.2d 160 , 1 65 (Tex. Crim. App. 1989). In that case, the trial court instructed the jury as follows:

If, in the attempt to carry out a conspiracy to commit one felony, another f elony is committed by one of the conspirators, then all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been an ticipa ted as a result of the carrying out the conspiracy. Capital Mur der, murder, robbery, and attempted robbery are felonies.
By the term “ conspiracy ” as used in these instructions, is meant an agreement between two or more pe rsons, with intent that a f el ony be committed, that they, or one or more of them, engage in conduct that would constitute the offense. An agreement constituting a conspiracy may be inferred from acts of the parties.

Id . at 164. The court concluded that s uch an instruction “ did not i nstruc t the jury to consider whether appellant was guilty of the separate offense of criminal conspiracy ” but instead provide d the jury with “ an alternative ‘ parties ’ charge

. ” Id

. at 165. The court explained that “ [ i ] t i s wel l accepted that the law of pa rties may be applied to a case even though no such allegation is contained in the indictm ent ” and that “ [ t ] his rule applies not only to the law of parties found in Section 7.02(a)(2) [of the Penal Code] but also the law of part ies found in Section 7.02(b ) , ” i.e. , the paragraph involving conspiracy

. Id

. ; see also Cucuta v. State , No. 08

– 15

– 00027

– CR , 2018 WL 1026449 , at *3

- 4 (Tex. App.

— El Paso Feb. 2 3, 2018, pet. ref ’ d) (not designated for publication) (following Montoya ) ; Rayo v . State , No. 05

– 1600895

– CR , 2 017 WL 3097659 , at *2

- 3 (Tex. App.

— Dallas July 21, 2017, no pet.) (mem. op., not de signated for publication) (same) ; Ward v. State , No. 14

– 15

– 00473

– CR , 2016 WL 6238339 , at *3

- 4 (Tex. App.

— Houston8 [ 14 th Dist.] Oct. 25, 2016 , pet . ref ’ d) (mem. op., not des ig nated for publication) (same) ; Gilmore
v. State , 397 S.W.3d 226 , 245 (Tex. App.

— Fort Worth 2012, pet. ref ’ d) (same) ; Depue v. State , No. 04

- 08

- 00487

- CR , 2009 WL 5150069 , at *6 (Tex. App.

— San Antonio Dec. 30, 2009, no pet.) ( mem . op., not designated for p ub licati on) (same)

. Romero

- Perez acknowledges Montoya but claims that th is case i s di stinguishable b ecause the instruction here went beyond the definition of conspiracy provided in Montoya and instead provided the jury with the entire text of the conspirac y statu te , which she c laims was imp roper
. However, b y including the entire text of the conspiracy statute in the charge, t he c ourt provided the jury with additional information explaining conspiracy under Texas law , and because the explanation in the char ge trac ked the langu age of the conspi racy statute, we cannot conclude that the district court erred by including it

. See Martinez v. State , 924 S.W.2d 693 , 699 (Tex. Crim. App. 1996) ( “ Following the law as it is set out by the Texas Legislature will not b e deeme d error on the part of a trial judge. ” ) ; s ee also Ladd v. State , 3 S.W.3d 547, 565 (Tex. Crim. App. 1999) (“discern[ing] no error” in trial court instructing jury on “ commonly understood meaning ” of conspiracy even though trial court was not require d to do so )

. Add itionally, even if the district court had erred in instructing the jury o n criminal conspiracy, we ca nnot conclude on this record that it entitled Romero

- Perez to reversal of h er conviction

. Again, because she did not object t o the charg e, she would be entitl ed to reversal only if the error caused her egregious harm. I t did not. First , we consider the entirety of the charge. A lthough the ab stract portion of the charge included an instruc tion on conspiracy, no correspondin g instruction w as included in the application paragraph o f the charge , which tracked the allegations in the ind ictment

. “ It is the application paragraph of the charge, not the abstract portion, that authorizes a convicti on. ”9 Crenshaw v. State , 378 S.W.3d 460 , 466 (Te x. Crim. App. 2012); see Kuhn v. State , 393 S.W.3d
519 , 529 (Tex. App.

— Austin 2013, pet. ref ’ d)

. Thus, “ w here the application paragraph of the charge correctly instructs the jury on the law applicable to t he case, this mitigates against a
f inding that any e rror in the abstract portion of the charge was egregious. ” Kuhn , 393 S.W. 3d at 529; see also Crenshaw , 378 S.W.3d at 466 ( “ An ab stract charge on a theory of law that is not applied to the facts does not authorize the jury to convict upon that theory. ” ) ; O ’ Brien v. State , 482 S.W.3d 593 , 611

- 12 (Tex. App.

— Houston [1 st Dist. 201 5 ) (concluding that charge its elf did
not support finding of egregious harm where abstract instruction on conspiracy was not incorp orated into application paragraph o f charge , which “ accura tely tracked the indictment ” ) , aff ’ d on other grounds , 544 S.W.3d 376 (Tex. Crim. App. 2018)

. Next, we consider the state of the evidence

. Romero

- Perez asserts that most of the evidence at trial concerned the actions of Jimenez r ather tha n Romer o - Perez and that the conspiracy language allowed the jury to convict her of what Jimenez had done

. However, as we explained i n our previous opinion addressing th is case , there was sufficient evidence to e stablish that Romero

- Perez was resp onsible , based o n her own actions, for trafficking Abby

. See State

v. Romero

- Perez , No. 03

- 18

- 00122

- CR, 2020 WL 1472361 , at *9

- 10 (Tex. App.

— Austin
Mar. 26, 2020, pet. ref’d) (mem. op., not designated for publication)

. Abby testified that she did

n ot have sex with Jimen ez until after the meeting at which Romero

- Perez made an agreement with Jimenez to receive payment in exchange for him “taking” the child to live with him. Id

. at 9. Abby also testified that Romero

- Perez provided Jimenez with con doms , and both she and Ji me nez testified that th ey believed that Romero

- Perez was “selling” Abby to Jimenez at the meeting

. Id

. T he jury could have reasonably inferred from this evidence that “ Romero

- Perez ’ s actions in arranging the meeting, negotiati ng the agreement, and provid in g condoms to Jimenez10 encouraged Jimenez either to initiate sexual conduct with the child or, if he had already done so, to continue engaging in sexual conduct with the child. ” Id

. Moreover, when the m e eting took place, Abby had left Jimenez ’ s residence a nd was staying with her grandmother , and Abby testified that she wanted to live with her grandmother, who had agreed that Abby could live with her. Id

. From this, “ the jury could have reasonably inferr ed that but fo r Romero

- Perez ’ s agreement with Jimen ez for him to ‘ take ’ the child in exchange for payment, the child w ould not have moved in with Jimenez. ” Id

. There was al so evidence that Romero

- Perez received multiple payments from Jimenez in accordanc e with their a gree ment and that Romero

- Perez ha d

co nt rol of Abby as her primary caretaker. Id . at 10. The jury could have reasonably inferred that
i n exercising that control, Romero

- Perez made Abby available to Jimenez by allo wing her to live with him an d conti nued to make Abby available to Jimenez by fa il ing to report him to authorities until seve ral months after she had directed or allowed Abby to live with Jimenez and after she had accepted multiple payments from Jimenez. Id . Because the evidence cle a rly supports
Romero

- Perez ’ s guilt as a principal a ct or in the offense, this militates against a finding of egregious harm. See Gilmore , 397 S.W.3d at 245

- 46. Finally , we consider the arguments of counsel and any other relevant information revealed by t he trial record as a whole

. The State did mention th e conspiracy instruction in its closing a rgument. However, th at reference was limited :

You get some talk of criminal conspiracy, so that ’ s why the additional definition of criminal conspiracy is

— is inc l uded. In there she just has to agree with one or mo re person s that they engaged in conduct that would constitute an offense

— any one of the felony offenses committed in this case

— and that she performs an overt act, which we all know happened here. And I ’ l l go into that in a little m ore detail here in a sec on d.11 You can infer these acts

— the conspiracy from the acts of the parties. And then it ’ s no defense what happened with the other conspirators in the case basically. And I won ’ t go through every single on e of them. Y ’ all can go b ack through that if you wa nt to.
Rather than focusing on the conspiracy instruction, t he State focused primarily on Romero

- Perez ’ s own actions , summarized above , and how th ose actions made her guilty of the charged offense of traf f icking

. We also observe that the State referred br ie fly to a conspiracy and “ co - conspirator [s]

. . . or codefendants ” during jury selection, but the reference s w ere in connection with the law of parties rather than the offense of cons p iracy

. I n sum, no n e of the above factors weigh in favor of a finding of egregio us harm. Accordingly, w e cannot conclude on this record that the district court ’ s instruction on conspiracy, even if erroneous, entitles Romero

- Perez to reversal of her conviction

. We overr ule R omero - Perez ’ s sole point of error.

CONCLUSION
We af firm the district court ’ s judg ment of conviction.

__________________________________________ Gisela D. Triana , Justice Before Chief Justice Byrn e, Justices Triana and Theofanis Affirmed
F iled: August 10 , 2023 Do Not Publish