Reversed in Part and Affirmed in Part as Modified and Opinion Filed 

September 30, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00419-CR 

EDWIN NOEL HERNANDEZ, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the Criminal District Court No. 2 

Dallas County, Texas 

Trial Court Cause No. F-2115517-I 

MEMORANDUM OPINION 

Before Justices Goldstein, Garcia, and Miskel 

Opinion by Justice Goldstein 

 Edwin Noel Hernandez appeals his capital murder conviction following a 

jury trial. In seven issues, appellant challenges (Issues 1–2) the sufficiency of the 

evidence to support his conviction; (Issue 3) the trial court’s assumption of 

jurisdiction and the juvenile court’s waiver of jurisdiction; (Issues 4–5) various 

provisions of the jury charge; (Issue 6) the trial court’s denial of his motion to 

suppress his video-recorded statement to the police; and (Issue 7) the trial court’s 

failure to properly credit his time served. The State raises three cross-points relative 

to errors in the judgment and argues that if we find the judgment inaccurate, these 
 –2– 

errors should be resolved by the trial court. We modify the judgment, affirm in part, 

and reverse in part, and remand this cause for recalculation of appellant’s time credit 

and correction of judgment. 

BACKGROUND 

On the evening of November 2, 2018, Misael Romero and his uncle Simon 

Ventura were coming home from work in Ventura’s work truck. Ventura owned his 

own construction business, and Romero worked for him. On the way home, they 

stopped at a check-cashing business. Romero cashed his weekly work check, while 

Ventura cashed a $70,000 check to pay his employees the next day. When they 

arrived home, Ventura temporarily parked the truck in the street, while Romero 

exited and moved a sedan out of the driveway. Romero then backed the truck into 

the spot that the sedan was in, and Ventura backed the sedan into the driveway space 

in front of the truck. Ventura then went to the passenger’s side of the truck and began 

removing his work equipment from the back seat. 

A surveillance camera overlooking the driveway captured the above, along 

with what happened next. Four assailants dressed in dark clothes appeared from 

around the corner on the opposite side of the street and ran toward the driveway. As 

the assailants crossed the street toward Ventura and Romero, two of them appeared 

to be wielding firearms—the first a rifle and the second a handgun. We will refer to 

the assailants with the same monikers that the State uses: “Shooter” (so named 
 –3– 

because he is holding the rifle which he later fires); “Shoeless”1

 (so named because 

he leaves a shoe at the scene); “Stripe” (named after the prominent horizontal stripe 

on his hoodie); and “Fourth” (so named because he is the last assailant to arrive at 

the driveway). 

As the assailants approached the truck, they split up. Shooter and Fourth 

approached the passenger’s side of the truck, while Stripe and Shoeless approached 

the driver’s side. Romero appeared not to notice the assailants approaching. 

According to Ventura, the two assailants who approached his side of the truck 

demanded in Spanish “to give them everything I had.” He said that one of the men 

was pointing a pistol at him. Ventura testified that he dropped his bag, which 

contained the $70,000 in cash, and attempted to kick it under the truck. Meanwhile, 

on the passenger’s side, Shooter made his way behind Romero, while Fourth stood 

near the front of the truck. 

A scuffle ensued on the driver’s side, and Fourth moved from the front of the 

truck to the driver’s side to join the scuffle. Romero, without apparent realization 

that Shooter was behind him, dropped his equipment and ran to the driver’s side to 

help his uncle. By the time he arrived, the scuffle had moved down the driveway 

toward the front of the truck, and Fourth began running away across the street in the 

same direction from which they came. Romero joined the scuffle, tackling one of 

1

 Appellant was identified as Shoeless, and we may refer to him as one or the other depending on 

context. Appellant does not challenge his identity as Shoeless on appeal, just that portion of his confession 

that places him at the scene wearing the shoe, which we address under Issue 6. 
 –4– 

the remaining assailants. Meanwhile, Shooter ran around to the front of the sedan. 

Stripe then exited the scuffle, leaving Shoeless as the only remaining assailant on 

the ground. Shooter, now in the middle of the street, looked back at the scuffle and 

raised his rifle. Shooter fired two shots into the scuffle. The surveillance footage 

then shows Shoeless getting out of the scuffle and, along with Shooter and Stripe, 

running back across the street behind Fourth. 

Ventura’s son, Alexis, witnessed some of these events when he came out to 

help Ventura unload the truck. When Alexis saw the shooting, he ran inside to call 

911. Multiple officers and paramedics were dispatched to the scene, including 

Officer Mohammad Almas of the Garland Police Department (GPD). Officer Almas 

testified that he saw Romero sitting on a chair in the driveway being tended to by 

others. He stated that soon after his arrival on the scene, paramedics arrived and 

transported Romero to the hospital, where he was pronounced deceased. Dr. Stephen 

Lenfest, a Dallas County medical examiner, testified that Romero suffered a rifle 

wound and that the bullet entered Romero’s right armpit, fractured his ribs, and 

penetrated his right lung, diaphragm, liver, and right kidney. Dr. Lenfest determined 

that the cause of death was “rifle wound of the chest into the abdomen.” 

Officer Almas questioned witnesses at the scene. Alexis showed Officer 

Almas the surveillance footage discussed above, and Officer Almas testified that it 

appeared that the four assailants were working together and that it “seemed 

organized.” He based this conclusion on the facts that the assailants approached the 
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driveway and split up in pairs immediately after Ventura parked his truck. Officer 

Almas also testified that it appeared that the assailants identified above as Shooter 

and Shoeless were wielding weapons—a rifle and handgun respectively—as they 

approached. He said that although he believed Shooter intended to fire the rifle, he 

did not think doing so was “necessary for the escape.” 

Audrey Palmer, a forensic investigator with the GPD, arrived on the scene and 

began her investigation. Palmer testified that she collected two spent shell casings, 

one live round, a shoe, and a pair of sunglasses. The shell casings were .223 rifle 

ammunition and were later determined to have been fired from the same weapon. 

The live round was a .380 caliber bullet, which Investigator Palmer testified was a 

common handgun caliber. The shoe was a size 8.5 green and white Nike Air Max. 

Palmer also took several pictures of shoe impressions left in the dirt in a construction 

site across the street in the direction that the video showed the four assailants 

approaching from. At trial, Stephen Favela, a forensic scientist with the Texas 

Department of Public Safety’s crime laboratory, testified that the shoe impressions 

matched those of the Nike Air Max shoe left at the scene. 

Approximately, a year after the offense, in November 2019, Detective Bobby 

Hill of the GPD was assigned as lead investigator in the now “cold” case. Detective 

Hill reviewed the file and noted that the shoe had not yet been tested for DNA 
 –6– 

evidence, so he sent it to the Garland DPS lab for testing.2

 DNA was discovered in 

the shoe and compared with DNA profiles in the federal CODIS database, which 

resulted in a “possible hit” as belonging to appellant.3

 Once Detective Hill had 

appellant’s name, he requested that the DPS crime analysts do a “crime workup” on 

him, which included reviewing appellant’s social media profiles. That investigation 

uncovered photographs of appellant, published to his Facebook profile, which 

depicted him wearing the same brand and color shoe as the one left behind in 

Ventura’s driveway. Based on this information, Detective Hill obtained a warrant 

for appellant’s DNA, and the subsequent test results confirmed that the DNA on the 

shoe belonged to appellant. 

Detective Hill then conducted an interview with appellant, with appellant’s 

mother present.4

 Detective Hill informed appellant that he was not under arrest and 

that he could leave at any point.5

 Detective Hill asked appellant about the robbery, 

and appellant initially answered that he had no involvement. When confronted with 

the DNA evidence from the shoe, appellant stated that he used to own a pair of shoes 

2 See TEX. CODE CRIM. PROC. ANN. art. 38.43(a)(2)(A), (B) (defining “biological evidence” to include 

biological material collected in a felony investigation that might reasonably be used to “establish the 

identity of the person committing the offense” or “exclude a person from a group of persons who could 

have committed the offense.”). 

3

 The shoe had DNA from three different persons, appellant being one, the others unidentified. 

4

 Appellant was a juvenile at the time of the offense but over the age of 18 at time of the interview and 

trial. 

5

 Detective Hill testified that he “was told that I need to treat him as a juvenile and do a noncustodial 

interview. When we do noncustodial interviews, we don’t arrest the person at the time the interview was 

done.” 
 –7– 

like the one recovered from the scene, but he often let others borrow those shoes. 

Over the course of the interview, however, appellant changed his story and admitted 

being present. He further admitted that he and the other assailants were there to 

commit a robbery, that they waited at a nearby construction site for Ventura and 

Romero to arrive home, and that they were armed (though he denied being armed 

himself). Asked about the remaining assailants, appellant declined to identify them. 

As appellant was sixteen years old at the time of the robbery and shooting, his 

case was assigned to the Dallas County Juvenile District Court. On the State’s 

petition, the juvenile court voluntarily waived jurisdiction and transferred the case 

to the trial court. Appellant was indicted for capital murder and aggravated robbery, 

to which he pleaded not guilty. Prior to trial, appellant filed a motion to suppress his 

confession, which the trial court denied. A jury trial commenced on April 26, 2022. 

The jury returned a verdict of guilty on the charge of capital murder.6

 The trial court 

entered its judgment of guilt and assessed punishment at life imprisonment with the 

possibility of parole after forty years. This appeal followed. 

6

 The jury also found appellant guilty of aggravated assault, which was charged by indictment in a 

separate cause number. After the guilty verdict, appellant entered into a plea bargain agreement with the 

State in that cause. Under that agreement, appellant agreed to waive his right to appeal the conviction for 

aggravated assault in exchange for a sentence of ten years’ confinement for that offense. 
 –8– 

DISCUSSION 

I. JURISDICTION

In his third issue, appellant contends that the trial court lacked jurisdiction. 

We address this issue first as it is potentially dispositive of the appeal. Appellant 

argues that because he was sixteen years old at the time of the offense, the juvenile 

court had jurisdiction and there is no evidence in the record establishing the juvenile 

court’s waiver, or the trial court’s assumption, of jurisdiction. Appellant concludes 

that the trial court’s judgment is therefore void for want of jurisdiction. 

In Texas, juvenile courts have jurisdiction to adjudicate the guilt of persons 

who commit crimes prior to the age of seventeen. See TEX. PENAL CODE ANN.

§ 8.07(b). However, a juvenile court may waive jurisdiction and transfer a case to a 

criminal court if the defendant was over fourteen years old and alleged to have 

committed, inter alia, a capital felony and the juvenile court determines after a full 

investigation and hearing that there is probable cause to believe that the defendant 

committed the alleged offense and that “because of the seriousness of the offense 

alleged or the background of the child the welfare of the community requires 

criminal proceedings.” See TEX. FAM. CODE ANN. § 54.02(a). 

Here, appellant complains that there is no evidence in the record that the 

juvenile court made the necessary findings, entered an order waiving its own 

jurisdiction, or entered an order transferring the case to the trial court. After appellant 

filed his brief making this argument, the State requested that the record be 
 –9– 

supplemented with the juvenile court’s records. On the State’s motion, we ordered 

the District Clerk to supplement the record with the following documents from the 

juvenile court’s files: (1) the State’s petition for discretionary transfer; (2) the 

juvenile court’s order of commitment after discretionary transfer hearing; and (3) the 

juvenile court’s waiver of jurisdiction and order of transfer. The District Clerk filed 

these documents with our Court as a supplemental clerk’s record. The State then 

filed its brief arguing that appellant’s third issue is moot because the appellate record 

now contains documents that appellant argued were lacking. In his reply brief, 

appellant argued that we cannot consider the documents as part of the appellate 

record because they are not records of the trial court and were not part of the trial 

court’s record when it exercised jurisdiction. 

We reject appellant’s argument and conclude that he failed to preserve this 

argument for appeal. Article 4.18 of the Code of Criminal Procedure provides, in 

part: 

(a) A claim that a district court or criminal district court does not have 

jurisdiction over a person because jurisdiction is exclusively in the 

juvenile court and that the juvenile court could not waive 

jurisdiction under Section 8.07(a), Penal Code, or did not waive 

jurisdiction under Section 8.07(b), Penal Code, must be made by 

written motion in bar of prosecution filed with the court in which 

criminal charges against the person are filed. 

(b) The motion must be filed and presented to the presiding judge of the 

court: 

(1) if the defendant enters a plea of guilty or no contest, before 

the plea; 
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(2) if the defendant’s guilt or punishment is tried or determined 

by a jury, before selection of the jury begins; or 

(3) if the defendant’s guilt is tried by the court, before the first 

witness is sworn. 

(c) Unless the motion is not contested, the presiding judge shall 

promptly conduct a hearing without a jury and rule on the motion. 

The party making the motion has the burden of establishing by a 

preponderance of the evidence those facts necessary for the motion 

to prevail. 

(d) A person may not contest the jurisdiction of the court on the ground 

that the juvenile court has exclusive jurisdiction if: 

(1) the person does not file a motion within the time 

requirements of this article; or 

(2) the presiding judge finds under Subsection (c) that a motion 

made under this article does not prevail. 

TEX. CODE CRIM. PROC. ANN. art. 4.18. Appellant’s claim that there is no evidence 

that the juvenile court waived jurisdiction is tantamount to a claim that the trial court 

lacked jurisdiction because “the juvenile court . . . did not waive jurisdiction under 

Section 8.07(b)” of the Penal Code. See id. art. 4.18(a). Appellant was required to 

raise this claim by written motion before jury selection. See id. art. 4.18(b)(2); see 

also Rushing v. State, 85 S.W.3d 283, 284 (Tex. Crim. App. 2002) (noting that the 

defendant argued on appeal that “the record did not reflect that a juvenile court had 

waived jurisdiction” but that Article 4.18 “purports to bar this type of claim unless 

it is timely raised before the convicting court—and appellant had failed to do so”). 
 –11– 

In the reply brief,7

 appellant argues in the alternative that, even if we do 

consider the supplemental clerk’s record, “the State failed to prove that the 

jurisdiction of the juvenile court was effectively waived or transferred.” Appellant 

relies on Section 54.02, subsection (j) of the Family Code, which provides: 

The juvenile court may waive its exclusive original jurisdiction and 

transfer a person to the appropriate district court or criminal district 

court for criminal proceedings if: 

(1) the person is 18 years of age or older; 

(2) the person was: 

(A) 10 years of age or older and under 17 years of age at the 

time the person is alleged to have committed a capital 

felony or an offense under Section 19.02, Penal Code; 

(B) 14 years of age or older and under 17 years of age at the 

time the person is alleged to have committed an 

aggravated controlled substance felony or a felony of the 

first degree other than an offense under Section 19.02, 

Penal Code; or 

(C) 15 years of age or older and under 17 years of age at the 

time the person is alleged to have committed a felony of 

the second or third degree or a state jail felony; 

7

 Ordinarily, we do not consider arguments raised for the first time in a reply brief. State v. West, 20 

S.W.3d 867, 873 (Tex. App.—Dallas 2000, pet. ref’d). Here, however, appellant raised this argument after 

the State supplemented the clerk’s record with the documents from the juvenile court. Thus appellant’s 

reply brief was his first opportunity to address the juvenile court’s findings. Additionally, unlike appellant’s 

primary argument under this issue, Article 4.18 does not bar appellant from raising this issue for the first 

time on appeal. See TEX. CODE CRIM. PROC. art. 4.18(g) (“This article does not apply to a claim of a defect 

or error in a discretionary transfer proceeding in juvenile court.”); see also Davis v. State, No. 05-16-01341-

CR, 2018 WL 3629085, at *3 (Tex. App.—Dallas July 31, 2018, no pet.) (mem. op., not designated for 

publication) (holding that Article 4.18 did not bar the defendant from asserting on appeal that his conviction 

was void on the ground that the juvenile court abused its discretion in failing to make adequate case-specific 

findings in its transfer order). 
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(3) no adjudication concerning the alleged offense has been made or 

no adjudication hearing concerning the offense has been 

conducted; 

(4) the juvenile court finds from a preponderance of the evidence 

that: 

(A) for a reason beyond the control of the state it was not 

practicable to proceed in juvenile court before the 18th 

birthday of the person; or 

(B) after due diligence of the state it was not practicable to 

proceed in juvenile court before the 18th birthday of the 

person because: 

(i) the state did not have probable cause to 

proceed in juvenile court and new evidence has 

been found since the 18th birthday of the 

person; 

(ii) the person could not be found; or 

(iii) a previous transfer order was reversed by an 

appellate court or set aside by a district court; 

and 

(5) the juvenile court determines that there is probable cause to 

believe that the child before the court committed the offense 

alleged. 

TEX. FAM. CODE ANN. § 54.02(j). Appellant contends that “a finding—based on a 

preponderance of the evidence under Tex. Fam. Code § 54.02(j)(4)(A) or (B)—was 

essential to a valid transfer order.” However, appellant argues, the juvenile court’s 

findings under the above provisions were “dubious” and rendered the transfer order 

“so deficient as to deprive the criminal court of jurisdiction.” See Ex parte Moon, 

667 S.W.3d 796, 805 (Tex. Crim. App. 2023). 
 –13– 

Assuming without deciding that the juvenile court’s findings under Section 

54.02(j) were deficient, we nevertheless reject appellant’s argument. The juvenile 

court found that transfer of the case to the trial court was appropriate not only under 

subsection (j), but also under subsection (a). These provisions both provide that a 

juvenile court “may waive its exclusive original jurisdiction” but differ on the 

findings the trial court could make before doing so. See id. § 54.02(a), (j). They are 

therefore alternative grounds for transfer. Under subsection (a), a juvenile court may 

transfer a case to a criminal court if the juvenile was over fourteen years old at the 

time of the offense, is alleged to have committed a capital felony, and the juvenile 

court determines after a full investigation and hearing that there is probable cause to 

believe that the defendant committed the alleged offense and that “because of the 

seriousness of the offense alleged or the background of the child the welfare of the 

community requires criminal proceedings.” See TEX. FAM. CODE ANN. § 54.02(a). 

Here, the juvenile court made specific findings spanning roughly three pages of its 

transfer order in support of its decision to waive jurisdiction. The juvenile court 

concluded that there was probable cause that appellant committed the alleged 

aggravated robbery and capital murder. Appellant does not complain of these 

findings. We therefore conclude that the juvenile court did not abuse its jurisdiction 

in waiving jurisdiction and transferring the case to the trial court. 

Appellant did not timely raise an objection to the trial court’s assumption of 

jurisdiction, including the challenged lack of documentation from the juvenile court, 
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prior to voir dire; therefore we conclude that appellant failed to preserve this error 

for appeal. We overrule appellant’s third issue. 

II. LEGAL SUFFICIENCY 

Appellant states his first two issues as follows: 

Issue 1: The evidence was legally insufficient to prove Capital 

Murder because the evidence: (1) did not support a rational finding 

that Hernandez “should have anticipated” the shooting of [Romero], 

a necessary element of guilt under Tex. Penal Code § 7.02(b); and 

(2) did not support the conclusion that the shooter committed the 

murder in the course of a robbery attempt. 

Issue 2: The jury’s finding that the death of [Romero] occurred in 

the course of an attempt to deprive [Romero] of property was not 

supported by legally sufficient evidence. 

As both of these issues raise legal-sufficiency challenges to the evidence supporting 

the verdict, we will consider them together. 

A. Standard of Review 

When reviewing the sufficiency of the evidence, we consider all the admitted 

evidence in the light most favorable to the verdict and determine whether, based on 

the evidence and reasonable inferences therefrom, a rational juror could have found 

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 

443 U.S. 307, 318–19 (1979). We measure the cumulative force of the evidence 

against “the hypothetically-correct jury charge, defined by the statutory elements as 

modified by the charging instrument.” Edwards v. State, 666 S.W.3d 571, 574 (Tex. 

Crim. App. 2023). “The hypothetically-correct jury charge is one that accurately 

states the law, is authorized by the indictment, does not increase the State’s burden 
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of proof, and adequately describes the offense with which the defendant is charged.” 

Id. at 574–75. 

The jury is the sole judge of the credibility of a witness’s testimony and the 

weight to assign that testimony. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. 

App. 2020). Thus, the jury can believe all, some, or none of a witness’s testimony. 

Id. If the record supports conflicting inferences, we presume that the factfinder 

resolved the conflicts in favor of the verdict, and we defer to that determination. 

Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. 

App. 2012). We may not reevaluate the weight and credibility of the evidence to 

substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 

740 (Tex. Crim. App. 1999). 

In a legal-sufficiency analysis, we treat direct and circumstantial evidence 

equally under this standard. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 

2010). It is not necessary that the evidence directly prove the defendant’s guilt; 

circumstantial evidence is as probative as direct evidence in establishing a 

defendant’s guilt, and circumstantial evidence can alone be sufficient to establish 

guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). Therefore, 

in evaluating the sufficiency of the evidence, we must consider the cumulative force 

of all the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); 

Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Each fact need not 

point directly and independently to guilt if the cumulative force of all incriminating 
 –16– 

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

9, 13 (Tex. Crim. App. 2007). 

B. Applicable Law 

A person commits capital murder if the person commits murder and, inter 

alia, the person intentionally commits the murder in the course of committing or 

attempting to commit robbery or certain other offenses. TEX. PENAL CODE ANN.

§ 19.03(a)(3). The phrase “in the course of” refers to “conduct occurring during an 

attempt to commit, during the commission of, or in immediate flight from, the 

forbidden behavior.” Griffin v. State, 491 S.W.3d 771, 774–75 (Tex. Crim. App. 

2016). 

A person commits murder if the 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). A person commits the offense of robbery if, in the 

course of unlawfully appropriating property with the intent to deprive the owner of 

property, and with the intent to obtain or maintain control of the property, 

intentionally, knowingly, or recklessly causes bodily injury to another or 

intentionally or knowingly threatens or places another in fear of imminent bodily 

injury or death. Id. § 29.02(a)(2). 

Under the law of the parties, a person is “criminally responsible as a party to 

an offense if the offense is committed by his own conduct, by the conduct of another 
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for which he is criminally responsible, or by both.” Id. § 7.01(a). Under Section 

7.02(a) of the Penal Code, party liability attaches to a defendant if: 

(1) acting with the kind of culpability required for the offense, he 

causes or aids an innocent or nonresponsible person to engage in 

conduct prohibited by the definition of the offense; 

(2) 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; or 

(3) having a legal duty to prevent commission of the offense and 

acting with intent to promote or assist its commission, he fails to 

make a reasonable effort to prevent commission of the offense. 

Id. § 7.02(a). Additionally, under Section 7.02(b), party liability attaches to coconspirators as follows: 

If, in the attempt to carry out a conspiracy to commit one felony, 

another felony is committed by one of the conspirators, 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 anticipated as a result of the carrying out of the conspiracy. 

Id. § 7.02(b).8

 

“To determine whether an individual is a party to an offense, the reviewing 

court may look to ‘events before, during, and after the commission of the offense.’” 

Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (quoting Wygal v. State, 

8

 In 2023, the Legislature amended Section 7.02(b) by adding the following sentence: “In this 

subsection, “conspiracy” means an agreement between two or more persons to commit a felony.” See Acts 

2023, 88th Leg., ch. 735 (H.B. 2961), § 1, eff. Sept. 1, 2023. However, according to the Act, the change 

became effective on September 1, 2023 and applied only to offenses committed after that effective date. 

See id. § 2, 3. As the charged offense occurred in 2018, we do not consider the amended definition in our 

analysis. 
 –18– 

555 S.W.2d 465, 468–69 (Tex. Crim. App. 1977)). “A court may also rely on 

circumstantial evidence to prove party status.” Id. “Each fact need not point directly 

to the guilt of the defendant, as long as the cumulative effect of the facts are sufficient 

to support the conviction under the law of parties.” Id. However, mere presence of a 

person at the scene of a crime, or even flight from the scene, without more, is 

insufficient to support a conviction as a party to the offense. Id. 

C. Analysis 

Appellant does not dispute that Romero was murdered or that an attempted 

robbery took place. Rather, in his first two issues, appellant complains that the 

evidence was insufficient to show that (1) appellant was a conspirator to the 

attempted robbery; (2) the murder happened in the course of an attempted robbery; 

(3) appellant should have anticipated a shooting; (4) Romero was a victim of 

aggravated robbery; and (5) the shooter had a propensity for violence. We address 

each complaint in turn. 

1. Issue 2(a)—Appellant as Conspirator 

Appellant first contends that the evidence was legally insufficient to prove 

that he was a conspirator to the robbery. Appellant argues that there was insufficient 

evidence of his “understanding and agreement” to commit the robbery because there 

was no evidence that “the parties were acting together, each doing some part of the 

execution or the common purpose.” See Metcalf v. State, 597 S.W.3d 847, 854 (Tex. 
 –19– 

Crim. App. 2020). Appellant explains that his presence at the scene of the robbery 

was not, in itself, sufficient to show that he was a coconspirator: 

Further, proof only that Hernandez went along with others to the 

scene of the robbery does not allow an inference that he agreed to 

participate with them since he could merely have been an observer 

or be present to engage in his own criminal conduct rather than the 

offense intended by the others. 

We disagree with appellant’s characterization of the evidence and the inferences the 

jury could have drawn from it. 

Here, the State sought submission of an instruction regarding the law of the 

parties under subsections (a)(2) and (b) of Penal Code Section 7.02,9

 only the latter 

of which requires a “conspiracy” to commit a felony. See TEX. PENAL CODE ANN.

§ 7.02(b). Contrary to appellant’s assertion, the conspiracy element of coconspirator 

liability under Penal Code Section 7.02(b) is not the same as criminal conspiracy 

under Section 15.02. See Huff v. State, No. 02-22-00139-CR, 2023 WL 3643232, at 

9

 Appellant argues that Section 7.02(a)(2) does not apply here because there was no evidence that he 

intended to promote or assist the commission of Romero’s murder. The State disagrees, explaining that the 

jury could have found that .380 caliber bullet left behind at the scene was from the handgun that was wielded 

by Shoeless (i.e., appellant). According to Detective Hill, the only way to eject a bullet is to “rack”—or 

pull back—the slide of the handgun. The State argues that the jury could have concluded that appellant 

racked his gun in order to fire it, meaning that he had the requisite intent to commit murder. We need not 

address these arguments. Because we conclude that the evidence was sufficient to support appellant’s 

conviction as a conspirator under the party-liability theory set forth in Section 7.02(b), we do not opine as 

to the sufficiency of the evidence with respect to Section 7.02(a)(2). See Rabbani v. State, 847 S.W.2d 555, 

558 (Tex. Crim. App. 1992) (“[W]hen the jury returns a general verdict and the evidence is sufficient to 

support a guilty finding under any of the allegations submitted, the verdict will be upheld.”); see also, e.g., 

Manning v. State, No. 01-04-00866-CR, 2006 WL 2506777, at *7 (Tex. App.—Houston [1st Dist.] Aug. 

31, 2006, pet. ref’d) (mem. op., not designated for publication) (“Based on the foregoing evidence, we hold 

that the evidence was legally sufficient to support appellant’s conviction of capital murder under section 

7.02(b). Based on our holding, we need not determine whether legally sufficient evidence showed that 

appellant intentionally caused the death of Ainsworth under section 19.03(a)(2), or that appellant solicited, 

encouraged, directed, aided, or attempted to aid a co-conspirator under section 7.02(a)(2).”). 
 –20– 

*4 (Tex. App.—Fort Worth May 25, 2023, pet. ref’d) (mem. op., not designated for 

publication) (“Under Section 7.02(b), the conspiracy language is not used to allege 

the commission of a conspiracy offense under Section 15.02 of the Texas Penal Code 

but is used to allege a defendant’s liability as a party to an offense alleged in the 

indictment.”) (citing Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 

1989); and Murkledove v. State, 437 S.W.3d 17, 22–23 (Tex. App.—Fort Worth 

2014, pet. ref’d)). To establish a conspiracy under Section 7.02(b), the State must 

show that the parties made an agreement to commit the underlying offense, which 

need not be proven by words alone: 

Since an agreement between parties to act together in common 

design can seldom be proven by words, the State often must rely on 

the actions of the parties, shown by direct or circumstantial 

evidence, to establish an understanding or a common design to 

commit the offense. 

Thompson v. State, No. 05-17-01173-CR, 2018 WL 4611224, at *3 (Tex. App.—

Dallas Sept. 26, 2018, no pet.) (mem. op., not designated for publication) (quoting 

Leadon v. State, 332 S.W.3d 600, 606 (Tex. App.—Houston [1st Dist.] 2010, no 

pet.)). 

From the record, the jury could have inferred that appellant was not merely a 

mere observer or participant in some other felony as appellant argues, but rather a 

party to the agreement to commit a robbery. Appellant stated in his recorded 

interview that he and the other three assailants waited at a nearby construction site 

for Ventura and Romero to arrive home so they could rob them. An examination of 
 –21– 

shoe impressions left at the construction site matched those of the shoe left behind 

at the scene, which the jury could have inferred belonged to appellant based on the 

social media photos of him wearing similar shoes. The security-camera footage 

shows that when Ventura and Romero exited the truck, the four assailants crossed 

the street in pairs to approach them on either side of the truck. The assailant referred 

to by the State as Shoeless can be seen in the footage wielding a handgun and 

pointing it in the direction of the truck. The footage shows him and the assailant 

referred to as Stripe approached Ventura and, according to Ventura’s testimony, one 

of them demanded that he “give them everything [he] had.” 

On this record, we conclude the evidence was legally sufficient to show that 

appellant and the other assailants were parties to a conspiracy to commit a robbery. 

2. Issue 2(b)—”In the Course of” 

Appellant next contends that the evidence was legally insufficient to show that 

the murder happened “in the course of” a robbery or attempted robbery. He argues 

that that there was no nexus between the murder and the robbery because “when the 

fatal shot was fired, the act of the crime—the robbery—was over.” We disagree. 

Capital murder under Penal Code Section 19.03(a)(2) is defined as a murder 

that the accused commits “in the course of” committing or attempting to commit 

another offense, including robbery. See TEX. PENAL CODE ANN. § 19.03(a)(2). The 

phrase “in the course of” refers to “conduct occurring during an attempt to commit, 

during the commission of, or in immediate flight from, the forbidden behavior.” 
 –22– 

Griffin, 491 S.W.3d at 774–75. However, “[a] killing and unrelated taking of 

property do not constitute capital murder under 19.03(a)(2): the State must prove a 

nexus between the murder and the theft, i.e. that the murder occurred in order to 

facilitate the taking of the property.” Ibanez v. State, 749 S.W.2d 804, 807 (Tex. 

Crim. App. 1986). 

Here, the evidence showed that the murder occurred in the course of the 

robbery. The surveillance footage shows the assailants referred to as Stripe and 

Shoeless approaching the driver’s side of Ventura’s truck. A scuffle broke out, and 

Romero went to that side of the truck and joined the scuffle. The four men were on 

the ground while Shooter circled around the sedan in front of the truck and aimed 

his rifle at the scuffle. Stripe was able to escape from the scuffle, but Shoeless was 

still in it. The footage then shows Shooter firing the rifle twice, after which Shoeless 

also freed himself. The assailants then fled across the street. Ventura testified that 

although the bag containing the $70,000 in cash was not taken, the assailants did 

take Romero’s money. On this record, the jury could have reasonably concluded that 

Shooter murdered Romero “in the immediate flight” from the robbery. Therefore, 

the evidence was legally sufficient to support the jury’s finding that the murder 

occurred “in the course of” the robbery. 
 –23– 

3. Issue 2(c)—”Should Have Anticipated” 

Appellant argues that there was no evidence that he should have anticipated 

that the assailant referred to by the State as Shooter would murder Romero. We 

disagree. 

When the evidence shows that a defendant uses, or knows that one of his 

coconspirators will use, a firearm in the commission of a robbery, such evidence 

“can be sufficient to demonstrate that the defendant should have anticipated the 

possibility of murder occurring during the course of the robbery.” Jones v. State, No. 

05-18-00588-CR, 2019 WL 4071995, at *3 (Tex. App.—Dallas Aug. 29, 2019, pet. 

ref’d) (mem. op., not designated for publication) (quoting Love v. State, 199 S.W.3d 

447, 453 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)); see also, e.g., Garcia 

v. State, No. 05-22-00526-CR, 2023 WL 4731296, at *6 (Tex. App.—Dallas July 

25, 2023, no pet.) (mem. op., not designated for publication) (defendant should have 

anticipated murders resulting from “confronting and threatening [victims] with a 

loaded AR15”). 

Here, the evidence shows that Romero’s murder should have been anticipated. 

Appellant stated in his interview that the four assailants planned to commit a 

robbery. Appellant also knew that one of the assailants would be wielding a rifle and 

another a handgun. The surveillance footage shows that two of the assailants, 

Shooter and Shoeless, pointed the rifle and handgun respectively in the direction of 

the truck as they approached from across the street. As discussed above, the evidence 
 –24– 

was also sufficient to show that Shoeless was appellant. Although appellant did not 

fire his handgun during the robbery, a bullet from his gun was left at the scene. 

Detective Hill testified that the only way a bullet could be ejected from a gun is for 

the wielder to “rack”—or pull back—the slide of the weapon. 

On this record, the jury could have reasonably found that appellant knew that 

a gun would be used in the commission of the robbery. We therefore conclude the 

evidence was legally sufficient to show that appellant should have anticipated 

Romero’s murder as a result of carrying out the conspiracy to commit the robbery. 

4. Issue 3(a)—Romero as Victim 

Appellant asserts that there is insufficient evidence to show that Romero was 

a victim of aggravated robbery. Appellant notes that the indictment against him 

alleges that he caused Romero’s death while appellant “was then and there in the 

course of committing and attempting to commit the offense of robbery of [Romero].” 

Appellant argues that the State was required to prove that Romero was a victim not 

only of the murder, but also of the robbery, because that is what the indictment 

alleges.10 Appellant contends the State failed to meet this burden because there was 

10 This argument raises the issue of variance, which “occurs whenever there is a discrepancy between 

the allegations in the indictment and the proof offered at trial.” Byrd v. State, 336 S.W.3d 242, 246 (Tex. 

Crim. App. 2011). Although appellant does not expressly complain about a variance, we discern that the 

gravamen of his argument under this issue is that the indictment alleged “[Hernandez] was then and there 

in the course of committing and attempting to commit the offense of ROBBERY of [ Romero]” , but the 

evidence showed (and the State argued) only that Ventura was the victim of a robbery. Ordinarily, we would 

consider the materiality of the variance to resolve the legal-sufficiency issue. See id. Here, however, we 

need not do so, because the jury could have reasonably concluded that Romero was, along with Ventura, a 

victim of the robbery. 
 –25– 

no evidence that the four assailants attempted to rob Romero. The State responds 

that the underlying offense alleged in the indictment was robbery, not aggravated 

robbery. The State further points out that there was some evidence that the assailants 

did in fact steal Romero’s money. 

To prove capital murder under Penal Code Section 19.03(a)(2), the State was 

required to prove that Romero was killed in the course of, inter alia, a robbery. See 

TEX. PENAL CODE ANN. § 19.03(a)(2). Thus, to the extent appellant argues that the 

State was required to prove the elements of aggravated robbery as the underlying 

felony for capital murder, we reject that argument. Alternatively, to the extent 

appellant argues that there was insufficient evidence that Romero was a victim of 

the robbery, we disagree. The evidence shows that the four assailants approached 

Ventura and Romero and split up in pairs to both sides of the truck. Ventura testified 

that while the assailants did not take the $70,000 in cash, they took money from 

Romero. Therefore, on this record, the evidence was legally sufficient to show that 

Romero was the victim of a robbery. 

5. Issue 3(b)—Shooter’s Propensity for Violence 

In his final legal-sufficiency challenge, appellant argues that there was 

insufficient evidence that he “knew the violent propensities of the shooter.” For this 

argument, appellant relies on Tippitt v. State, 41 S.W.3d 316, 325–26 (Tex. App.—

Fort Worth 2001, no pet.), abrogated by Hooper v. State, 214 S.W.3d 9 (Tex. Crim. 
 –26– 

App. 2007). The State responds that it was not required to prove appellant’s 

knowledge of the shooter’s propensity for violence. We agree with the State. 

In Tippitt, the Fort Worth Court of Appeals considered the “anticipation” 

element of coconspirator liability under Penal Code Section 7.02(b). The court held 

that the evidence was insufficient to show that Tippitt should have anticipated that 

Whitaker, his coconspirator, would commit a murder during the course of the 

robbery they conspired to commit. See id. After reviewing the relevant case law, the 

court explained: 

Here, the evidence does not rise to the same level as in those cases 

where the appellate courts have held that murder should have been 

anticipated as a result of carrying out the object offense. While there 

was some evidence in our record that, by his reputation, Whitaker 

might be prone to commit violence, there was no evidence to 

establish [Tippitt’s] knowledge of Whitaker’s violent propensities. 

Moreover, there is no evidence to show that [Tippitt] knew Whitaker 

had a gun when he entered [the victim’] home. Without such 

evidence, we cannot hold that the evidence showed, beyond a 

reasonable doubt, that [Tippitt] should have anticipated intentional 

murder as a possible result of their agreement to rob [the victim]. 

Id. After Tippitt, some courts held that the anticipation element of party liability 

under Section 7.02(b) requires evidence of the defendant’s knowledge of his 

coconspirator’s propensity for violence. See, e.g., Hooper v. State, 170 S.W.3d 736, 

745 (Tex. App.—Waco 2005, pet. granted) rev’d 214 S.W.3d 9 (Tex. Crim. App. 

2007). The court of criminal appeals, however, has held that “[k]nowledge of a coconspirator’s violent propensity or intent to commit aggravated assault is not an 

element of the offense under either theory of party liability, so the lack of evidence 
 –27– 

of such knowledge is not dispositive of sufficiency.” Hooper, 214 S.W.3d at 1411; 

see also Kirvin v. State, No. 05-09-00382-CR, 2010 WL 3259798, at *4 (Tex. 

App.—Dallas Aug. 16, 2010, pet. ref’d) (mem. op., not designated for publication) 

(“[A] lack of proof of [the defendant’s] knowledge of [the coconspirator’s] intent or 

background is not dispositive of his sufficiency challenge.”). 

We conclude that the State was not required to show that appellant knew of 

Shooter’s propensity for violence in order to establish that appellant should have 

anticipated Romero’s murder. We therefore do not consider whether the evidence 

was legally sufficient to establish this fact and overrule appellant’s sufficiency 

challenge on this ground. 

6. Summary 

We conclude that the evidence was legally sufficient to show that (1) appellant 

was a conspirator to the robbery; (2) Romero’s murder occurred in the course of the 

robbery; (3) appellant should have anticipated that Shooter would commit the 

murder; and (4) Romero was the victim of the robbery. We further conclude that the 

State was not required to prove Romero was the victim of an aggravated robbery or 

that appellant had knowledge of Shooter’s propensity for violence. 

11 Appellant’s citation to Tippitt includes a subsequent-history notation that the case was “overruled on 

other grounds by Hooper[.] The court of criminal appeals in Hooper did expressly overrule Tippitt on a 

different issue—whether inference stacking can be used to establish a vital fact in a legal-sufficiency 

analysis. Hooper, 214 S.W.3d at 15. However, the court of criminal appeals also rejected the lower court’s 

analysis on the issue of violent propensity. See id. at 14. The lower court in Hooper relied on Tippitt for its 

reasoning. Thus, to the extent Tippitt stands for the proposition that the State must prove the defendant’s 

knowledge of his coconspirator’s propensity for violence in such cases, that proposition has been expressly 

disapproved of by the court of criminal appeals. See id. 
 –28– 

We overrule appellant’s first and second issues. 

III. JURY CHARGE

In his fourth issue, appellant contends that the trial court erred in its charge to 

the jury because (1) the evidence was insufficient to show that he acted alone and 

thus no instruction under Penal Code Section 7.02(a)(2) should have been given; (2) 

the trial court failed to define “conspiracy”; and (3) there were conflicting definitions 

of “capital murder.” In his fifth issue, appellant contends that the trial court erred 

because the charge included an improper conduct instruction that allowed the jury 

to find appellant guilty on an inapplicable theory of liability. 

A. Standard of Review 

When considering issues of charge error, we conduct a two-step inquiry. 

Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). First, we determine 

whether the charge is erroneous. Id. In examining the charge for possible error, we 

must “examine the charge as a whole instead of a series of isolated and unrelated 

statements.” Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). Second, 

if the charge is erroneous, we must decide whether the appellant was harmed by the 

erroneous charge. Alcoser, 663 S.W.3d at 165. The level of harm required to obtain 

relief on appeal depends on whether the appellant objected at trial. See id. If there 

was a timely objection to the charge, then the appellant needs only to show “some 
 –29– 

harm” to obtain relief. Id. If there was no objection, then the record must show 

“egregious harm.” Id.12

“Harm is assessed ‘in light of the entire jury charge, the state of the evidence, 

including the contested issues and weight of [the] probative evidence, the argument 

of counsel and any other relevant information revealed by the record of the trial as a 

whole.’” Id. (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 

1984)). “An erroneous jury charge is egregiously harmful if it affects the very basis 

of the case, deprives the accused of a valuable right, or vitally affects a defensive 

theory.” Id. (quoting Almanza, 686 S.W.2d at 171). “A finding of egregious harm 

must be based on ‘actual harm rather than theoretical harm.’” Id. (quoting Cosio v. 

State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). Egregious harm is a difficult 

standard to meet, and the analysis is a fact-specific one. Id. “Neither party bears the 

burden on appeal to show harm or lack thereof under this standard.” Marshall v. 

State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). Instead, courts are required to 

examine the relevant portions of the entire record to determine whether appellant 

suffered harm as a result of the error. Id. 

12 Appellant concedes that other than the following requests, no objections were made to the jury charge. 

Appellant requested the lesser-included offenses of Murder and Aggravated Robbery be included in the 

jury charge, along with an instruction addressing the voluntariness of Hernandez’s statement to the police 

and an extraneous-act instruction. 
 –30– 

B. Applicable Law 

Under Article 36.14 of the Code of Criminal Procedure, a trial court is 

required to “deliver to the jury . . . a written charge distinctly setting forth the law 

applicable to the case[.]” TEX. CODE CRIM. PROC. ANN. art. 36.14. The charge must 

“contain an accurate statement of the law and must set out all the essential elements 

of the offense.” Dinkins, 894 S.W.2d at 339. 

A jury charge consists of two parts: the abstract portion, which tells the jury 

about the law, and the application portion, which applies the law to the facts and 

authorizes the jury to act. See Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. 

App. 2012); Farris v. State, 506 S.W.3d 102, 108 (Tex. App.—Corpus Christi–

Edinburg 2016, pet. ref’d) (citing Hutch v. State, 922 S.W.2d 166, 172–74 (Tex. 

Crim. App. 1996)). “It is the application paragraph of the charge, not the abstract 

portion, that authorizes a conviction.” Crenshaw, 378 S.W.3d at 466. The abstract 

paragraphs serve as a glossary to help the jury understand the meaning of concepts 

and terms used in the application paragraphs of the charge. Id. “An abstract charge 

on a theory of law that is not applied to the facts does not authorize the jury to convict 

upon that theory.” Id. Generally, reversible error occurs in the giving of an abstract 

instruction only when the instruction is an incorrect or misleading statement of a law 

that the jury must understand in order to implement the commands of the application 

paragraph. Id. (citing Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), 

overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 
 –31– 

1997)). Conversely, “superfluous abstractions, those not necessary to an 

understanding of concepts or terms contained in the application paragraph, are 

generally innocuous.” Plata, 926 S.W.2d at 302. 

C. Analysis 

1. Issue 4(a)—Section 7.02(a)(2) Instruction 

Appellant argues that the trial court erred in including a law-of-the-parties 

instruction under Section 7.02(a)(2) of the Penal Code because there was no 

evidence that he acted alone in causing Romero’s death. The State responds that 

including this instruction was not error because it was supported by the evidence. 

A trial court must submit instructions on the law of the parties under any legal 

theory supported by the evidence. In re State ex rel. Weeks, 391 S.W.3d 117, 124 

(Tex. Crim. App. 2013). If the evidence supports multiple theories of party liability, 

the trial judge may not arbitrarily limit the State to one of the theories. Id. And the 

trial judge may not restrict the presentation of a theory of party liability if the 

restriction is not required by the charging instrument or by the evidence. Id. 

Here, the jury charge includes instructions regarding the law of the parties 

under both Sections 7.02(a)(2) and 7.02(b) of the Penal Code.13 Under a section titled 

Law of Parties, the charge states: 

13 As we concluded above, the evidence was legally sufficient to support appellant’s conviction under 

Section 7.02(b), and we therefore will not opine as to whether the evidence also supported a conviction 

under Section 7.02(a)(2). See supra, at n.3. That does not mean, however, that the State was not entitled to 

a Section 7.02(a)(2) instruction. 
 –32– 

All persons are parties to an offense who are guilty of acting together 

in the commission of the offense. A person is criminally responsible 

as a party to an offense if the offense is committed by his own 

conduct, by the conduct of another for which he is criminally 

responsible, or by both. 

A person is criminally responsible for an offense committed by the 

conduct of another if, acting with the 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. Mere 

presence alone will not constitute one a party to an offense. 

A person is criminally responsible for conduct of another if, in the 

attempt to carry out a conspiracy to commit one felony, another 

felony is committed by one of the conspirators, 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 anticipated as 

a result of the carrying out of the conspiracy. 

The second paragraph above largely tracks the language of Section 7.02(a)(2), while 

the third paragraph tracks the language of Section 7.02(b). See TEX. PENAL CODE 

ANN. § 7.02(a)(2), (b). The next section of the charge includes the application 

paragraph for capital murder, which states (emphasis ours): 

Now bearing in mind the foregoing instructions, if you find from the 

evidence beyond a reasonable doubt, that on or about 2nd day of 

November, 2018, in Dallas County, Texas, Edwin Hernandez, 

hereinafter called defendant, acting alone or as a party as defined 

herein, did then and there intentionally cause the death of Misael 

Romero, an individual, hereinafter called deceased, by shooting the 

deceased with a firearm, and the defendant was then and there in the 

course of committing and attempting to commit the offense of 

robbery of the deceased, then you will find the defendant guilty of 

capital murder. 

Unless you so find from the evidence beyond a reasonable doubt, or 

if you have a reasonable doubt thereof, or if you are unable to agree, 
 –33– 

you will next consider whether the defendant is guilty of the lesser 

offense of murder. 

The charge also includes applications paragraphs for the offenses of murder and 

aggravated robbery, each of which includes the above italicized language referring 

to the party-liability instruction in the abstract portion of the charge. 

Appellant argues that the trial court erred in including the Section 7.02(a) 

instruction because the evidence was insufficient to show that he acted alone in 

causing Romero’s death. But the inclusion of a Section 7.02(a) instruction does not 

require that the defendant act alone; rather, the State is entitled to the instruction only 

if it presents some evidence that the defendant “acting with intent to promote or 

assist the commission of the [murder], he solicits, encourages, directs, aids, or 

attempts to aid the other person to commit the [murder].” See TEX. PENAL CODE 

ANN. § 7.02(a)(2). 

Appellant further argues that “[e]ven if the evidence supported [Section 

7.02(a)(2)’s] inclusion, it would primarily serve to distract or confuse the jury.” 

Appellant avers that the trial court erred by instructing the jury on party liability 

theories under both 7.02(a)(2) and 7.02(b) “without being clear that each theory was 

exclusive in nature[.]” We disagree. The charge sets forth the two theories in separate 

paragraphs, and there is no indication that the two paragraphs are interdependent. 

Further, the party-liability section of the abstract portion is immediately followed by 

the application paragraph for capital murder, requiring little effort on the part of the 

jury to connect them. See Vasquez v. State, 389 S.W.3d 361, 371 (Tex. Crim. App. 
 –34– 

2012) (application paragraph stating that defendant should be found guilty if he 

committed aggravated robbery “acting alone or as a party (as herein defined)” not 

confusing where “jury needed only to refer to the previous section, which defined 

criminal responsibility as a party”). Further, the trial court was required to include 

alternate theories of party liability supported by the evidence. See Weeks, 391 

S.W.3d at 124. And the jury could have convicted on any theory of party liability 

even if it was not unanimous as to any single theory of party liability. See Leza v 

State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011) (“Where, as is the case here, the 

evidence is compelling that an accused is guilty of every constituent element of the 

alleged penal offense—either as a principal actor or under some theory of party 

liability—but there remains evidentiary play with respect to his precise role in that 

offense, we think it would be plainly absurd to require the jury to acquit the accused 

unless it can unanimously determine his status as a principal actor or a party and, if 

the latter, what his exact party accountability might be.”).

We conclude the trial court did not err in including a Section 7.02(a)(2) 

instruction in the charge. Even if it did, we cannot conclude that appellant was 

egregiously harmed by the error. If appellant is correct that a Section 7.02(a)(2) 

instruction was unnecessary and unsupported by the evidence, then it would be best 

described as a “superfluous abstraction[]” that is “not necessary to an understanding 

of concepts or terms contained in the application paragraph.” See Plata, 926 S.W.2d 

at 302. Such instructions “are generally innocuous.” See id. 
 –35– 

2. Issue 4(b)—Conspiracy Definition 

Appellant next contends that the trial court erred by failing to include a 

definition of “conspiracy” in the charge. Appellant argues that the trial court should 

have included a definition of conspiracy derived from Section 15.02 of the Penal 

Code, which defines the offense of criminal conspiracy. 

This argument is similar to one rejected by the court of criminal appeals in 

Ladd v. State, 3 S.W.3d 547, 565 (Tex. Crim. App. 1999). In Ladd, the defendant 

was charged with committing capital murder in the course of committing a robbery, 

among other crimes. See id. at 556. The jury charge included an instruction on law 

of parties under Section 7.02(b). See id. at 565. The charge also defined “conspiracy” 

using its commonly understood meaning. See id. The defendant argued that this was 

error and that the trial court should have defined conspiracy according to the 

elements of the offense under Penal Code Section 15.02. See id. The court of 

criminal appeals rejected this argument. The court held the trial court did not err, 

explaining: 

The Penal Code provides no definition for “conspiracy” as that term 

is used in § 7.02(b). Therefore, the trial court need not have defined 

the term, but it certainly did not err in instructing the jury to give the 

term its commonly understood meaning. 

Id. (internal citations omitted); see also Huff, 2023 WL 3643232, at *4 (explaining 

the difference between conspiracy as used in Sections 7.02(b) and 15.02 of the Penal 

Code). 
 –36– 

At the time of the offense in this case,14 the Penal Code did not define 

“conspiracy” as used in Section 7.02(b). See generally TEX. PENAL CODE ANN.

§ 1.07 (definitions). Accordingly, the trial court “need not have defined the term.” 

See Ladd, 3 S.W.3d at 565. 

We conclude the trial court did not err by failing to define the word 

“conspiracy” in the charge. Accordingly, we do not address whether appellant was 

harmed by the omission. See Alcoser, 663 S.W.3d at 165. 

3. Issue 4(c)—Definition of Capital Murder 

Appellant next complains about the following definition of capital murder in 

the abstract portion of the charge: 

A person commits the offense of capital murder if he intentionally 

causes the death of an individual; and the defendant was then in 

there in the course of committing and attempting to commit the 

offense robbery of said deceased. 

Appellant argues that this definition was “no help in deciding the case” because the 

case “dealt exclusively with [appellant’s] criminal responsibility for another’s 

conduct and nothing else should have been implied or stated.” The State responds 

that the above definition tracks the language of the charged offense and therefore its 

inclusion in the charge cannot be error. 

14 We note again that Section 7.02(b) does include a definition of “conspiracy” as of September 1, 2023. 

See supra, at n.2. However, the offense here predated the effective date of that amendment and we thus do 

not rely on the statutory definition in this analysis. See id.
 –37– 

We agree with the State. A trial court generally does not commit charge error 

in defining an offense by tracking the statutory language. Casey v. State, 215 S.W.3d 

870, 887 (Tex. Crim. App. 2007). Additionally, we disagree that the definition was 

unhelpful to the jury. To the contrary, in order to find appellant guilty of capital 

murder, either as a primary actor or via party liability, the jury had to be instructed 

on the elements of that offense. See Dinkins, 894 S.W.2d at 339. The trial court did 

so in both the abstract and application portions of the charge. This was not error. 

We conclude that the trial court did not err in defining capital murder in the 

abstract portion of the jury charge. Accordingly, we do not address whether appellant 

was harmed by the definition. See Alcoser, 663 S.W.3d at 165. 

4. Issue 5—Intent and the Conduct Elements 

In his final charge-error issue, appellant contends that the trial court erred in 

failing to limit the conduct element in the abstract definition of intent. Relying on 

the twin cases of Cook15 and Hughes,

16 appellant argues that the charge allowed the 

jury to convict him of capital murder on an inapplicable theory of liability. The State 

concedes the trial court erred, but argues that the error was harmless. 

Section 6.03 of the Penal Code defines four separate culpable mental states: 

intent, knowledge, recklessness, and criminal negligence. See TEX. PENAL CODE 

ANN. § 6.03; see also Campbell v. State, 664 S.W.3d 240, 245 (Tex. Crim. App. 

15 Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994). 

16 Hughes v. State, 897 S.W.2d 285 (Tex. Crim. App. 1994). 
 –38– 

2022). “‘[T]he scope of those culpable mental states is limited by the type of the 

offense,’ which depends on the ‘conduct element.’” Id. (quoting Cook , 884 S.W.2d 

at 487). There are three conduct elements: (1) nature of conduct; (2) result of 

conduct; and (3) the circumstances surrounding the conduct. Id. (citing McQueen v. 

State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989)). A trial court errs when it fails 

to limit the culpable mental state according to the proper conduct element that is the 

gravamen of the charged offense. See Cook, 884 S.W.2d at 491. 

In Cook, the defendant was indicted for murder under Penal Code Section 

19.02(b)(1).17 See id. at 486. The trial court’s charge included the following 

definitions of “intentionally” and “knowingly”: 

(a) 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. 

(b) A person acts knowingly, or with knowledge, with respect to the 

nature of his conduct or to circumstances surrounding his conduct 

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

circumstances exist. 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. 

17 The Cook opinion states that the defendant was charged with murder under Section 19.02(a)(1), not 

(b)(1). Cook, 884 S.W.2d at 486. This is because at the time of the murder in Cook, the elements of the 

offense were set forth in subsection (a). In 1993, however, the Legislature recodified the Penal Code. See 

Strong v. State, 87 S.W.3d 206, 214 (Tex. App.—Dallas 2002, pet. ref’d). As part of that recodification, 

Section 19.02 was amended by moving the elements down to subsection (b) and inserting definitions for 

“adequate cause” and “sudden passion” in subsection (a). See Act of May 29, 1993, 73d Leg., R.S., ch. 900 

(S.B. 1067), § 1.01, 1993 Tex. Gen. Laws 3586, 3613. For clarity, we will refer to the current version of 

the statute where applicable. 
 –39– 

Id. The court of criminal appeals held that these definitions were erroneous because 

intentional murder under Penal Code Section 19.02(a)(1) is a “result of conduct” 

offense these definitions should have limited the conduct element accordingly; i.e., 

the charge should not have included the “nature” and “circumstances” conduct 

elements. See id. at 491. 

In Hughes, the companion case to Cook, the court of criminal appeals 

considered the same issue for the offense of capital murder under Penal Code Section 

19.03(a)(1), which involves the murder of a peace officer or fireman. See Hughes, 

897 S.W.2d 285, 288, 295–97 (Tex. Crim. App. 1994). Similar to Cook, the trial 

court’s charge in Hughes defined “intentionally” and “knowingly” as follows: 

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 the 

nature of his conduct or to circumstances surrounding his conduct 

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

circumstances exist. 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. 

Id. at 294 (emphasis in original). In considering the elements of a Section 19.03(a)(1) 

capital murder, the court of criminal appeals noted that the offense included “two of 

the three conduct elements[,]” notably that the defendant “intentionally or 

knowingly caused the death of the deceased (result of conduct),” and that the 

defendant “knew the deceased was a peace officer (circumstances surrounding the 
 –40– 

conduct).” Id. However, the State was not required to prove, and it was error to 

include, a mental-state instruction with respect to the “nature of conduct” element. 

See id. 

Both Cook and Hughes acknowledged that some capital-murder cases would 

involve all three conduct elements. See Cook, 884 S.W.2d at 489, n.3 (“[Section] 

19.03(a)(2) requires not just the intent to cause the death of an individual but also 

requires the defendant to have the culpable mental state necessary to satisfy the 

“conduct elements” of the underlying offense.”); Hughes, 897 S.W.2d at 295 

(explaining that capital murder often involves proof of other criminal conduct and 

therefore “it is more accurate to view it as a result of conduct offense which also 

includes nature of circumstances and/or nature of conduct elements depending upon 

the underlying conduct which elevates the intentional murder to capital murder”). In 

a footnote, the Hughes opinion explains how a charge should define the culpable 

mental states with respect to different conduct elements when more than one has to 

be proved: 

Following is an example of a charge which would have 

appropriately limited the definitions of culpable mental state for the 

offense charged in the instant case: 

The following definition applies to mental state in causing death: 

A person acts “intentionally” or with intent, with respect to a 

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

to cause the result. 
 –41– 

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. 

The following definition applies to mental state in knowing the 

victim was a peace officer: 

A person acts “knowingly” or with knowledge, with respect to 

circumstances surrounding his conduct when he is aware that the 

circumstances exist. 

Hughes, 897 S.W.2d at 296, n.16. 

The following year, in Patrick v. State, the court applied this footnote to a jury 

charge in a capital-murder case involving an underlying burglary-of-a-habitation 

offense under Penal Code Section 19.03(a)(2). 906 S.W.2d 481, 491–92 (Tex. Crim. 

App. 1995). The court explained that the offense “can be viewed as including all 

three of the conduct elements.” Id. at 492. That is, the State was required to prove 

not only that the defendant intentionally caused the death of the deceased (a result 

of conduct element), but also that he entered a habitation without the owner’s 

effective consent (a circumstance surrounding the conduct element) and unlawfully 

appropriated the deceased’s property (a nature of conduct element). Id. Therefore, 

the court held that the trial court did not err in including all three conduct elements 

in the mental-state definitions of the charge. See id. However, the court concluded 

that the trial court did err in “not limiting the additional language concerning the 

culpable mental state to proving the ‘conduct element’ of the underlying offense.” 

Id. 

Here, the trial court defined the culpable mental states as follows: 
 –42– 

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 the 

nature of his conduct or to circumstances surrounding his conduct 

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

circumstances exist. 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. 

A person acts recklessly or is reckless, with respect to circumstances 

surrounding his conduct or the result of his conduct when he is 

aware of but consciously disregards a substantial or unjustifiable 

risk that the circumstances exists or the result will occur. The risk 

must be of such a nature and degree that its disregard constitutes a 

gross deviation from the standard of care that an ordinary person 

would exercise under all the circumstances as viewed from the 

actors standpoint. 

We agree with the parties that these definitions are erroneous. Under current 

jurisprudence, the trial court should have clearly delineated which mental states 

attach to which conduct elements. See id. 

We now turn to whether appellant was egregiously harmed as a result of this 

error. For both preserved and unpreserved charging error, “the actual degree of harm 

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

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.” Id. at 492. 

“In assessing harm resulting from the inclusion of improper conduct elements in the 

definitions of culpable mental states, we ‘may consider the degree, if any, to which 

the culpable mental states were limited by the application portions of the jury 
 –43– 

charge.’” Id. (quoting Hughes, 897 S.W.2d at 296; Cook, 884 S.W.2d at 492, n.6); 

see also Ash v. State, 930 S.W.2d 192, 195 (Tex. App.—Dallas 1996, no pet.) 

(“[E]ven if an offense contains all of the conduct elements referenced in the 

definitions of ‘knowingly’ and ‘intentionally,’ a court errs in failing to limit the 

definitions to the conduct element or elements of the offense to which they apply.”). 

In Patrick, the court considered whether an error similar to the one here 

egregiously harmed the defendant. See id. at 492–93. In analyzing the jury charge in 

that case, the court noted that although the definitions of “intentionally” and 

“knowingly” “indiscriminately set forth the three alternative conduct elements,” the 

“factual context” in which those terms appear shows which conduct element applies 

to which element of the offense. Id. at 493. The court explained: 

For instance, the application paragraph states that appellant “did 

intentionally cause the death of [the victim.]” The term intentionally 

directly modifies the phrase “cause the death”. Referring back to the 

definitions of culpable mental states, it is obvious that the “result of 

conduct” and cause the result language are the applicable portions 

of the full code definitions. We conclude that because the facts, as 

applied to the law in the application paragraph, pointed the jury to 

the appropriate portion of the definitions, no harm resulted from the 

court’s failure to limit the definitions of culpable mental states to 

proving the conduct element of the underlying offense. 

Id. We employed the same analysis in Ash to conclude that the defendant was not 

egregiously harmed by the erroneous definitions of “knowingly” and “intentionally.” 

See Ash, 930 S.W.2d at 195. There, all three conduct elements were implicated, but 

the trial court did not limit the definitions to the conduct elements of the offense to 

which they applied. See id. However, we concluded that the defendant was not 
 –44– 

egregiously harmed by the error. This was because the application portion of the 

charge, which “describe[d] the manner and means of committing the offense . . .” 

tended to “limit the culpable mental states to the result of appellant’s conduct.” Id. 

Here, appellant argues that the trial court erred by failing to limit the conduct 

element in the mental-state definitions “to the concomitant commission of 

Aggravated Robbery that made this a Capital Murder.” Appellant contends that the 

jury charge allowed the jury to find that Shooter acted with intent to engage in 

conduct that was clearly dangerous to human life—that is, a murder under Penal 

Code Section 19.02(b)(2)—which cannot support a capital-murder charge. See TEX.

PENAL CODE ANN. § 19.03(a) (providing that only a murder under Section 

19.02(b)(1) can be enhanced to capital murder). We disagree. 

The jury charge used the “clearly dangerous to human life language” only in 

the definition of, and application paragraph for, murder. That was appropriate, as the 

jury was instructed on murder as a lesser-included offense to capital murder. The 

jury charge’s application paragraph for capital murder, on the other hand, stated: 

Now bearing in mind the foregoing instructions, if you find from the 

evidence beyond a reasonable doubt, that on or about 2nd day of 

November, 2018, in Dallas County, Texas, Edwin Hernandez, 

hereinafter called defendant, acting alone or as a party as defined 

herein, did then and there intentionally cause the death of Misael 

Romero, an individual, hereinafter called deceased, by shooting the 

deceased with a firearm, and the defendant was then and there in the 

course of committing and attempting to commit the offense of 

robbery of the deceased, then you will find the defendant guilty of 

capital murder. 
 –45– 

As in Patrick, the word “intentionally” directly modifies the phrase “cause the 

death.” See Patrick, 906 S.W.2d at 493. The abstract definition of “intentionally” 

included the result-of-conduct element, which is the gravamen of the murder 

offense. And the application paragraph “limit[ed] the culpable mental states to the 

result of appellant’s conduct.” See Ash, 930 S.W.2d at 195. Further, it was not error 

to include the other conduct elements (circumstances surrounding the conduct and 

nature of the conduct) because the underlying offense of robbery requires proof of 

those elements. See id. Viewing the error in light of the entire charge, we cannot say 

appellant was egregiously harmed. 

5. Summary 

We conclude the trial court did not err in including a Section 7.02(a)(2) 

instruction, in failing to define “conspiracy,” or in including a definition for capital 

murder, in the charge. We further conclude that the trial court did err in failing to 

limit the conduct elements to their respective offenses in the mental-state definitions, 

but such error did not egregiously harm appellant. 

We overrule appellant’s fourth and fifth issues. 

IV. MOTION TO SUPPRESS

In his sixth issue, appellant contends that the trial court erred in denying his 

motion to suppress his recorded interview with Detective Hill. Appellant argues that 

his confession was coerced into making his statements because Detective Hill lied 

to appellant by telling him that he was subject to the death penalty. See Roper v. 
 –46– 

Simmons, 543 U.S. 551, 578 (2005); TEX. PENAL CODE ANN. § 8.07(c) (“No person 

may, in any case, be punished by death for an offense committed while the person 

was younger than 18 years.”). The State responds that Detective Hill’s statements 

were not coercive. Based upon the record, we conclude that this issue was waived 

for appeal. 

Although the State does not argue on appeal that appellant’s contention was 

not preserved for our review, error preservation is a “systemic requirement” that we 

must review sua sponte. Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005) 

(“[P]reservation of error is a systemic requirement that must be reviewed by the 

courts of appeals regardless of whether the issue is raised by the parties[.]”).; see 

also Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009) (“Ordinarily, a 

court of appeals should review preservation of error on its own motion. . . .”). A 

defendant who files a pretrial motion to suppress evidence and obtains a ruling on 

the admissibility of the evidence need not object every time the evidence is offered 

at trial to preserve error. TEX. R. EVID. 103(b); Estrada v. State, 313 S.W.3d 274, 

302 (Tex. Crim. App. 2010); Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. 

App. 1986). “However, when the defendant affirmatively asserts during trial he has 

‘no objection’ to the admission of the complained of evidence, he waives any error 

in the admission of the evidence despite the pre-trial ruling.” Moraguez, 701 S.W.2d 

at 904; see also Jenkins v. State, No. 05-22-01003-CR, 2024 WL 412518, at *6 (Tex. 

App.—Dallas Feb. 5, 2024, pet. ref’d) (mem. op., not designated for publication). If 
 –47– 

an issue has not been preserved for appeal, we should not address the merits of that 

issue. Ford, 305 S.W.3d at 532. 

Prior to trial, appellant filed a motion to suppress, among other things, any of 

his “statements or admissions, whether written or oral” and “illegal recordings of 

[his] conversations.” The trial court held a pretrial hearing in which it heard 

argument on the motion to suppress. Appellant sought to exclude his videotaped 

interview by Detective Hill. The trial court denied the motion to suppress. During 

trial, the State offered the same videotape into evidence. Appellant’s counsel stated 

that he had “no objection,” and the trial court admitted the videotape into evidence. 

On our own motion, we consider whether appellant preserved his complaint 

relative to the trial court’s denial of his motion to suppress. See Haley, 173 S.W.3d 

at 515. Because appellant asserted that he had “no objection” to the admission of his 

videotaped interview, we conclude that this issue was waived for appeal. Moraguez, 

701 S.W.2d at 904; Jenkins, 2024 WL 412518, at *6. We therefore decline to address 

the merits of this issue. See Ford, 305 S.W.3d at 532. 

We overrule appellant’s sixth issue. 

V. TIME CREDIT

In his seventh issue, appellant avers that the judgment does not reflect the 

correct pretrial confinement calculation for time served and requests that we remand 

this cause to the trial court to calculate his time credit. 
 –48– 

Article 42.03 of the Code of Criminal Procedure provides the trial judge shall 

give credit “from the time of [defendant’s] arrest and confinement until his sentence 

by the trial court” and “the time that the defendant has spent in jail pending 

disposition of his appeal.” TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a)(1), § 3. A 

defendant is also entitled to a time credit for any time he spent in juvenile detention 

if he is later sentenced to prison for the same offense. See Ex parte Green, 688 

S.W.2d 555, 556–57 (Tex. Crim. App. 1985). Article 42.01 requires that this credit 

be included in the judgment. See TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(18). 

Appellant contends that the Texas Department of Criminal Justice (TDCJ) is 

mistakenly treating the date of the judgment as the commencement date for his 

confinement for the purposes of calculating the date on which he becomes eligible 

for parole. In his brief, appellant provides a link to his inmate information page, 

which he alleges reflects this error. Appellant argues that the reason for this error is 

likely because the trial court used the wrong judgment form. The State disagrees that 

appellant was not credited time for his pretrial detention. The State points out that 

the judgment reflects “286 BT CREDIT” though it acknowledges that this was 

written in the judgment’s blank provided for court costs. The State does agree, 

however, that the trial court used the wrong judgment form and points to other errors 

in the judgment stemming from that mistake.18

18 We address these additional errors in Section VI below. 
 –49– 

Ordinarily, we may reform or correct a judgment when we have the necessary 

data and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d). However, when there is insufficient information from which 

we to determine the amount of time to be credited for a defendant’s prejudgment 

confinement, we must remand the cause to the trial court for that calculation. Sanders 

v. State, No. 05-02-01620-CR, 2004 WL 60762, at *7 (Tex. App.—Dallas Jan. 14, 

2004, no pet.) (mem. op., not designated for publication). 

Here, there is insufficient information to determine the time credit. Although 

the trial court appears to have found the time credit to be 289 days, as reflected in 

the court costs blank of the judgment, that number may be incorrect. Appellant was 

arraigned on June 24, 2021. The trial court set bail at $500,000, and there is no 

evidence in the record that appellant posted bail. Assuming he was confined from 

that day until April 29, 2022, the date of the judgment, then appellant’s pretrial 

confinement would have been 309 days. Additionally, the record contains a Notice 

of Disposition, which appears to reflect that appellant is entitled to “credit for time 

served” from August 4, 2020 to April 29, 2022, or 634 days. 

We conclude that there is insufficient information in the record to properly 

calculate appellant’s time credit. We therefore remand this cause to the trial court to 

make that calculation. 
 –50– 

VI. MODIFICATIONS TO JUDGMENT

In three cross-points, the State requests that we correct certain mistakes in the 

judgment, or alternatively abate this cause and remand to the trial court to make the 

corrections. The State argues that the judgment is incorrect by stating: (1) that 

punishment evidence was submitted to the jury; (2) that the jury was charged by the 

court on punishment; and (3) that the jury rendered verdicts on special issues. 

As explained above, the State argues, and appellant agrees, that these errors 

stem from the trial court using the wrong judgment form. Article 42.01, Section 4 of 

the Code of Criminal Procedure requires that the Office of Court Administration of 

the Texas Judicial System (OCA) to promulgate a standardized felony judgment 

form. TEX. CODE CRIM. PROC. ANN. art. 42.01, § 4; see Rios v. State, 665 S.W.3d 

467, 472 n.13 (Tex. Crim. App. 2022) (OCA offers different judgment forms drafted 

in Microsoft Word based on the circumstances. . . For example, if a bench trial was 

held . . . the “Judgment of Conviction by Court” form would be used.”). 

Here, the trial court used the judgment form titled “Judgment of Conviction 

by Jury – Capital Murder.” This was the incorrect form, as is apparent from the 

language in the footer of the judgment, which states, “OCA Standard Judgment Form 

Capital Murder – State Seeks Death Penalty.” As we are remanding for recalculation 

of time credit, we note that the current judgment form has no blank to input the time 

credit. Given that a time credit is relevant only for the calculation of the defendant’s 

eligibility for parole, which is not available in capital-murder cases in which the 
 –51– 

State seeks the death penalty, the absence on the current form is not surprising. See 

TEX. PENAL CODE ANN. § 12.31(a). However, because the State cannot seek the death 

penalty where, as here, the defendant was a juvenile at the time of the offense, the 

State contends that the appropriate form is the one titled “Judgment of Conviction 

by Jury.”19 

The judgment form in the record also contains the following statements, along 

with check boxes that reflect the jury’s options in capital-murder cases in which the 

State seeks the death penalty: 

The jury heard evidence relative to the question of punishment. 

The Court charged the jury and it retired to consider the special 

issues set out in the jury charge. After due deliberation, the jury was 

brought into open court, where it returned its answers to the special 

issues as indicated below: 

(1) The jury found beyond a REASONABLE DOUBT that there 

is a probability that defendant would commit criminal acts of 

violence that would constitute a continuing threat to society. 

[x] Yes (unanimous) 

[ ] No (by at least 10 jurors) 

(2) The jury found beyond a REASONABLE DOUBT that 

considering all the evidence, including the circumstances of the 

offense, the defendant’s character and background, and the personal 

moral culpability of the defendant, that there is a sufficient 

mitigating circumstance or circumstances to warrant that a sentence 

of life imprisonment without parole rather than a death sentence be 

imposed? 

[x] Yes (by at least 10 jurors) 

19 We leave the determination of the correct form to the trial court. 
 –52– 

[ ] No (unanimous) 

We agree with the State that there is no evidence in the record that these questions 

were submitted to the jury. Nor could they have been, given that the death penalty 

was never an option. Rather, once the jury returned its guilty verdict, the trial court 

pronounced the mandatory sentence of life imprisonment. See TEX. PENAL CODE 

ANN. § 12.31(a)(1).20 We conclude that the above statements—reflecting that the 

jury punishment evidence was submitted to the jury, that the jury was charged on 

punishment, and that the jury rendered a verdict on special issues—are incorrect and 

should be stricken from the judgment. 

We sustain the State’s cross-points. 

CONCLUSION 

We overrule appellant’s first six issues and affirm the trial court’s judgment 

as to those issues. We sustain the State’s cross-issues and reform the judgment by 

deleting the language therein suggesting that punishment evidence was submitted to 

the jury, that the jury was charged on the issue of punishment, and that the jury 

rendered a verdict on special issues. We sustain appellant’s seventh issue and delete 

the phrase “286 BT CREDIT” from the blank in the judgment for “Court Costs” and 

replace it with “0.” We remand this cause to the trial court to recalculate appellant’s 

time credit pursuant to Article 42.03 of the Code of Criminal Procedure. 

20 Although the record reflects that the appellant elected for the jury to assess punishment, the trial court 

imposed the mandatory sentence. 
 –53– 

We direct the trial court to prepare a corrected judgment, using the appropriate 

judgment form, that reflects the modifications made in this Court’s opinion and 

judgment in this cause. See Montoya v. State, No. 05-22-00621-CR, 2024 WL 

3897468, at *12 (Tex. App.—Dallas Aug. 22, 2024, no pet. h.) (mem. op., not 

designated for publication) (citing Shumate v. State, 649 S.W.3d 240, 244 (Tex. 

App.—Dallas 2021, no pet.)). 

We further direct the trial court: (1) to order the district clerk to prepare and 

file supplemental clerk’s records containing the corrected judgment with this Court; 

(2) to provide the corrected judgment to the parties; and (3) to send the corrected 

judgment to the Texas Department of Criminal Justice. See id. 

 

220419F.P05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
 –54– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

EDWIN NOEL HERNANDEZ, 

Appellant 

No. 05-22-00419-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the Criminal District 

Court No. 2, Dallas County, Texas 

Trial Court Cause No. F-2115517-I. 

Opinion delivered by Justice 

Goldstein. Justices Garcia and Miskel 

participating. 

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

MODIFIED as follows: 

(1)We DELETE the following language in the judgment: 

The jury heard evidence relative to the question of punishment. 

The Court charged the jury and it retired to consider the special 

issues set out in the jury charge. After due deliberation, the jury was 

brought into open court, where it returned its answers to the special 

issues as indicated below: 

(1) The jury found beyond a REASONABLE DOUBT that there 

is a probability that defendant would commit criminal acts of 

violence that would constitute a continuing threat to society. 

[x] Yes (unanimous) 

[ ] No (by at least 10 jurors) 

(2) The jury found beyond a REASONABLE DOUBT that 

considering all the evidence, including the circumstances of the 

offense, the defendant's character and background, and the personal 

moral culpability of the defendant, that there is a sufficient mitigating 
 –55– 

circumstance or circumstances to warrant that a sentence of life 

imprisonment without parole rather than a death sentence be imposed? 

[x] Yes (by at least 10 jurors) 

[ ] No (unanimous) 

(2)We DELETE the phrase “$286 BT Credit” from the space in the 

judgment reserved for “Court Costs” and INSERT “$0” in its place. 

As REFORMED, the judgment is AFFIRMED IN PART AND REVERSED IN 

PART. We REVERSE that portion in the judgment reflecting that appellant 

EDWIN NOEL HERNANDEZ shall be credited 289 days for time served prior to 

judgment. We REMAND this cause to the trial court for recalculation of Appellant’s 

time credit. In all other respects, the judgment is AFFIRMED. 

 We DIRECT the trial court to prepare a corrected judgment, using the 

appropriate judgment form, that reflects the modifications made in this Court’s 

opinion and judgment in this cause. 

 We further DIRECT the trial court to: (1) order the district clerk to prepare 

and file in this Court a supplemental clerk’s record containing the corrected 

judgment; (2) provide a copy of the corrected judgment to the parties; and (3) send 

a copy of the corrected judgment to the Texas Department of Criminal Justice. 

Judgment entered this 30th day of September, 2024.