In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-22-00282-CR

___________________________

On Appeal from the 371st District Court

Tarrant County, Texas

Trial Court No. 1711401D

Before Birdwell, Bassel, and Walker, JJ.

Memorandum Opinion by Justice Walker

EDWIN CAMILLO VALENCIA, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

Appellant Edwin Camillo Valencia appeals his conviction for stalking and raises 

one jury-charge issue. We affirm the trial court’s judgment.

I. BACKGROUND

Valencia and Jane1 met while teaching at the same public school. Initially, they 

had a professional relationship. Three years later, Valencia’s behavior changed. 

Despite teaching a different grade in another part of the school, Valencia began 

visiting Jane’s classroom more frequently and watching her through her classroom’s 

window. He also began messaging and calling Jane on Facebook more frequently, gave 

her personal gifts, and sent a student to deliver a romantic poem to her. Jane

confronted Valencia regarding his behavior, and he confessed his love for her. She

rebuffed him, and he stopped contacting her for a while. Two weeks later, he 

approached her in the school parking lot with a bottle of hand lotion as a gift, asking, 

“I’ve been a good boy, haven’t I?” Jane reported Valencia’s behavior to the school 

principal, and the school district investigated the allegations and asked Valencia to 

resign. 

Approximately nine months later, Valencia called Jane, who responded, “Leave 

me alone. Do not call me.” Two months later, Valencia came to Jane’s house uninvited. 

1Although the complainant was an adult, we nonetheless use a pseudonym to 

protect her privacy. See Tex. Const. art. I, § 30(a)(1); 2d Tex. App. (Fort Worth) Loc. 

R. 7.
3

Jane’s husband, who was at the grocery store with their child, called the police and 

rushed home. Upon arriving, Jane’s husband confronted Valencia and prevented him 

from leaving until police arrived. Valencia was released with a criminal trespass warning 

but was later arrested and charged with stalking. 

After the guilt–innocence phase of trial, the trial court prepared a jury charge. 

Although the charge included the stalking statute’s three elements, it erroneously used 

a disjunctive connector between the first and second elements. The application 

paragraph contained the same error. Valencia did not object to this error. The jury 

found him guilty of stalking and assessed punishment at five years’ confinement. The 

trial court sentenced Valencia accordingly. 

II. DISCUSSION

In one issue, Valencia contends the erroneous jury charge violated his dueprocess rights by permitting the jury to find guilt on less than all required elements of 

the offense. 

We must review “all alleged jury-charge error . . . regardless of preservation in 

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In 

reviewing a jury charge, we first determine whether error occurred; if not, our analysis 

ends. Id.

A person commits the offense of stalking if he knowingly engages in a “scheme 

or course of conduct” that
4

(1) constitutes an offense under Section 42.07 [harassment],

2 or that 

the actor knows or reasonably should know the other person will 

regard as threatening:

(A) bodily injury or death for the other person;

(B) bodily injury or death for a member of the other person’s 

family or household or for an individual with whom the 

other person has a dating relationship; or

(C) that an offense will be committed against the other person’s 

property;

(2) causes the other person, a member of the other person’s family or 

household, or an individual with whom the other person has a 

dating relationship to be placed in fear of bodily injury or death or 

in fear that an offense will be committed against the other person’s 

property, or to feel harassed, annoyed, alarmed, abused, tormented, 

embarrassed, or offended; and

(3) would cause a reasonable person to:

(A) fear bodily injury or death for himself or herself;

(B) fear bodily injury or death for a member of the person’s 

family or household or for an individual with whom the 

person has a dating relationship;

(C) fear that an offense will be committed against the person’s 

property; or

(D) feel harassed, annoyed, alarmed, abused, tormented, 

embarrassed, or offended.

2Relevant to the jury charge at issue, Section 42.07 defines harassment as acting 

“with intent to harass, annoy, alarm, abuse, torment, or embarrass another” by 

“threaten[ing], in a manner reasonably likely to alarm the person receiving the threat, to 

inflict bodily injury on the person or to commit a felony against the person, a member 

of the person’s family or household, or the person’s property” or “send[ing] repeated 

electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, 

torment, embarrass, or offend another.” Tex. Penal Code Ann. § 42.07(a)(1), (7).
5

Tex. Penal Code Ann. § 42.072(a). The trial court’s jury charge rephrased this definition 

and added a disjunctive connector between the first and second elements. Specifically, 

the jury charge stated,

Our law provides that a person commits the offense of stalking if on 

more than one occasion and pursuant to the same scheme or course of 

conduct that is directed specifically at another person he knowingly 

engages in conduct that:

Constitutes harassment, or conduct that the actor knew or reasonably 

should have known the other person would regard as threatening bodily 

injury or death for the other person, threatening bodily injury or death for 

a member of the other person’s family, household, or someone with 

whom the other person has a dating relationship, or threatening that an 

offense will be committed against the other person’s property;

Or he knowingly engages in conduct that causes the other person, a 

member of the other person’s family or household, or an individual with 

whom the other person has a dating relationship to be placed in fear of 

bodily injury or death, or in fear that an offense will be committed against 

the other person’s property, or causes the other person to feel harassed, 

annoyed, alarmed, abused, tormented, embarrassed, or offended;

And said conduct would cause a reasonable person to fear bodily injury 

or death, fear bodily injury or death for a member of the person’s family 

or household, or for an individual with whom the person has a dating 

relationship, or fear that an offense will be committed against the person’s 

property; or feel harassed, annoyed, alarmed, abused, tormented, 

embarrassed, or offended. [Emphasis added.] 

The charge defined harassment: 

[A] person commits the offense of harassment if, with intent to harass 

annoy, alarm, abuse torment, or embarrass another he:

threatens in a manner reasonably likely to alarm the person receiving the

threat, to inflict bodily injury on the person or commit a felony against the 

person, a member of the person’s family or household, or the person’s 

property;
6

Or sends repeated electronic communications in a manner reasonably 

likely to harass, annoy alarm, abuse, torment, embarrass, or offend 

another.

The charge’s application paragraph contained the same disjunctive connector as the 

abstract. Valencia contends that the addition of the disjunctive connector meant that 

guilt could be found on less than all three elements. The State agrees, as do we. 

Valencia, however, did not object to this error below, so we review the error for 

egregious harm. See Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza 

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); Tex. Code Crim. 

Proc. Ann. art. 36.19. The appropriate inquiry for egregious harm is fact- and casespecific. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. State, 

332 S.W.3d 483, 489 (Tex. Crim. App. 2011).

In making an egregious-harm determination, we must consider “the actual degree 

of harm . . . in light of the entire jury charge, the state of the evidence, including the 

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

other relevant information revealed by the record of the trial as a whole.” Almanza, 

686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at 708–10 (applying Almanza). Errors 

that result in egregious harm are those “that affect the very basis of the case, deprive 

the defendant of a valuable right, vitally affect the defensive theory, or make a case for 

conviction clearly and significantly more persuasive.” Taylor, 332 S.W.3d at 490 (citing 
7

Almanza, 686 S.W.2d at 172). The purpose of this review is to illuminate the actual, not 

just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174.

A. FACTOR ONE—THE ENTIRETY OF THE JURY CHARGE

Mere error in a jury charge is not sufficient alone to meet the first Almanza factor. 

French v. State, 563 S.W.3d 228, 236 (Tex. Crim. App. 2018). Thus, we must consider 

“whether anything in the balance of the jury charge either exacerbated or ameliorated”

the error. Id. Here, both the abstract and application sections of the jury charge 

contained the same error. Thus, the jury charge both misstated the law and instructed 

the jury to apply this misstatement. Accordingly, this factor weighs in favor of finding 

harm. See id.3

B. FACTOR TWO—THE STATE OF THE EVIDENCE

Valencia admits on appeal that there was ample evidence to support his 

conviction. Yet he asserts that the charge permitted the jury to disagree about whether 

the evidence supported the first or the second element of the offense. The record 

3Citing our opinion in Alkayyali v. State, 668 S.W.3d 445, 455 (Tex. App.—Fort 

Worth 2023, pet. filed), Valencia contends that courts routinely reverse judgments on 

unpreserved jury charge errors in circumstances like those at issue here. The jury charge 

in Alkayyali omitted cause of death as an element. Id. at 453–54. Cause of death was a 

“hotly contested” fact issue and the chief defense. Id. at 454. The jury charge at issue 

here did not omit an element of the offense but misstated the relationship between the 

elements, and the record does not reflect a similar “hotly contested” fact issue.

Regardless, we did not conclude there was egregious harm in Alkayyali based solely on 

the omission, but we applied the Almanza factors, id. at 453–55, as we do here.
8

reflects, however, substantial evidence that could reasonably support a finding against 

Valencia on both the first and second elements.

The record reflects that Valencia and Jane’s professional relationship changed in 

the fall of 2020. Specifically, Valencia began visiting Jane’s classroom more frequently 

with no professional reason for doing so and started giving her inappropriate romantic 

gifts. Valencia also started watching Jane through a window into her classroom. Jane

testified that she would sometimes stand in the back of the classroom or turn off the 

lights so that Valencia could not see her through the window. When Jane told him to 

stop bringing gifts, he would have his kindergarten students deliver them. 

Valencia and Jane’s Facebook relationship also changed in the fall of 2020, when 

he started sending Facebook messages more frequently and began calling Jane late at 

night. His messages also became possessive and sexual in nature, and some messages 

concerned Jane’s two-year-old child. Valencia explained that the many calls were 

accidental, but Jane responded that accidental calls were not possible on Facebook. 

Jane told Valencia to stop contacting her via Facebook and blocked him when he did 

not stop. 

In November 2020, Valencia sent a kindergarten student to deliver a poem to 

Jane. The poem was a romantic acrostic using the letters of Jane’s name. Jane returned 

the poem and informed Valencia that it was inappropriate. Shortly thereafter, Jane

confronted Valencia in-person about his behavior. She testified that she was scared to 

meet with him, so she had her co-teacher stay close by for support. She told Valencia 
9

that she would have to report his behavior to the school principal if he did not leave 

her alone. Valencia confessed that he loved her, and she told him that she had not 

given him any reason to feel that way. 

After their discussion, Jane avoided Valencia, who still came to Jane’s classroom 

looking for her. Two weeks later, Valencia approached Jane in the school parking lot. 

He drove up to her vehicle as she was leaving and asked, “I’ve been a good boy, haven’t 

I?” He then offered her a gift of hand lotion. Jane testified that she rejected the gift 

and was “[s]cared that he was never going to stop.” She also told her co-teacher that 

she did not know what to do, and that she did not want to go to work anymore. 

When she came back to school from winter break, she reported Valencia’s 

behavior to the school principal. The school district investigated Jane’s allegations, 

found grounds for termination, and reached an agreement allowing Valencia to resign. 

Valencia was interviewed by the school district’s investigator and submitted a written 

statement in which he stated that he understood that he was not to approach Jane and 

promised not to do so. 

Despite this promise, Valencia called Jane in September 2021. Jane was at a 

school open house when she received the call. She thought it might be a student’s 

parent and was “shocked” when she heard Valencia’s voice. He asked how she was 

doing, and Jane responded, “Leave me alone. Do not call me.” Although Jane had 

previously given Valencia her phone number, she changed it in the spring or summer

of 2021. 
10

Valencia then showed up uninvited at Jane’s house on November 18, 2021. 

Jane’s husband and child were at the grocery store, so Jane texted her husband to say 

that Valencia was ringing the doorbell. Jane testified that she panicked when she saw 

Valencia through the peep hole, that she was crying and scared, and that she found a 

kitchen knife to protect herself. Jane’s husband called the police and rushed home. 

Valencia was still at the residence when Jane’s husband arrived. He blocked Valencia’s 

vehicle from leaving and called the police again. Police arrived and interviewed 

Valencia, Jane, and her husband. Valencia told the police that he was “on break” or 

“casually driving” and decided to drop off a gift for Jane’s child. Valencia also 

acknowledged that he had been told not to contact Jane and offered, “You know that 

I had stopped for a little while.” Police issued a criminal trespass warning to Valencia

and notified him that he would be investigated for stalking. 

Jane testified that she felt harassed, alarmed, and annoyed by Valencia’s phone 

calls, Facebook messages, gifts, and presence at her classroom. She also testified that 

she felt threatened when Valencia showed up at her house. 

On this evidence, a jury could reasonably have found that Valencia’s behavior 

met all three elements of the offense. See Tex. Penal Code Ann. § 42.072(a). 

Specifically, evidence of Valencia’s persistent unwelcome conduct toward Jane despite 

multiple warnings to stop is sufficient to satisfy both the first and third elements, which

incorporate an objective standard concerning whether a person would feel harassed, 

alarmed, or threatened by the conduct at issue. See id. § 42.07(a)(2) (requiring threats 
11

“reasonably likely” to alarm the recipient), § 42.07(a)(7) (requiring repeated electronic 

communications “reasonably likely to harass, annoy, alarm, torment, embarrass, or 

offend another”), § 42.072(a)(1) (incorporating Section 42.07), § 42.072(a)(3) (requiring 

conduct that would cause a “reasonable person” to fear bodily injury or “feel harassed, 

annoyed, alarmed, abused, tormented, embarrassed, or offended”). The evidence is also 

sufficient for a jury to reasonably find that Jane was placed in fear or felt harassed by 

Valencia’s behavior. See id. § 42.072(a)(2). Accordingly, the evidence does not weigh in 

favor of finding egregious harm.

C. FACTOR THREE—ARGUMENT OF COUNSEL

Valencia asserts that the State addressed the first two elements in its closing 

argument, but that it did not emphasize that they both had to be met. We disagree.

In both their opening statements and closing arguments, both sides primarily 

addressed evidence regarding the first two elements. This is unsurprising since these 

elements concern the defendant’s behavior and the victim’s response. See id.

§ 42.072(a)(1), (2). Twice in closing, however, counsel for each side properly 

enumerated the elements of the offense. Specifically, after outlining the evidence 

supporting the State’s allegations, the prosecutor quoted the statute, stating, 

The Defendant knew or should reasonably have known that the other 

person would regard such conduct as threatening bodily injury or death 

and such conduct did cause the other person to be placed in fear of bodily 

injury or death or did cause the other person to feel harassed, annoyed, 

alarmed, abused, or tormented.

. . . .
12

And such conduct would cause a reasonable person to fear bodily injury 

or death to herself or, again, feel harassed, annoyed, alarmed, abused, or 

tormented. [Emphasis added.] 

Valencia’s counsel also presented the elements in the form of questions: “First, what 

was [Valencia’s] intent? Two, did something actually happen? And, three, how did [sic] 

a reasonable person feel?” These restatements and characterizations of the offense

weigh against finding egregious harm.

D. FACTOR FOUR—TRIAL AS A WHOLE

Other relevant information in the record reflects that the jury was advised of the 

offense’s elements. During voir dire, the prosecutor displayed and discussed the 

elements. 

What is stalking? There are elements that the State has to prove beyond a 

reasonable doubt. . . . [I]t starts like this: The defendant, on or about a 

certain date, did knowingly engage in conduct on more than one occasion 

and pursuant to the same scheme or course of conduct that was directed 

at another person and -- here is your first way -- such conduct constitutes 

harassment.

. . . .

So we see here harassment is one way. All of it is pretty common sense. 

Or the defendant knew or should reasonably have known that the other 

person would regard the conduct as threatening bodily injury or death and

such conduct did cause the other person to be placed in fear of bodily 

injury or death or did cause the other person to feel harassed, annoyed, 

alarmed, abused, or tormented.4[Emphasis added.] 

4The prosecutor’s synopsis condensed aspects of the first two stalking elements, 

joining them with a conjunctive connector. The prosecutor specifically highlighted the 

elements requiring harassment under Section 42.07 or conduct that the actor knows or 

reasonably should know the other person will regard as threatening bodily injury or 
13

The prosecutor further explained, “Step one, it’s either harassment or the defendant 

should have known what was going to happen; step two, it actually did happen; and 

then, step three, a reasonable person would have known the effect would happen.” 

After presenting several hypothetical scenarios and soliciting analyses from the venire 

panel members, the prosecutor reiterated that stalking requires “[m]ore than once, same 

scheme or course of conduct, similar behavior, the victim feared bodily injury, the 

victim felt alarmed, and a reasonable person would feel alarmed.” Thus, from the 

outset, the State identified the three elements of the offense.

Having examined the four Almanza factors, we conclude that the erroneous jury 

charge did not deprive Valencia of a valuable right, vitally affect his defensive theory, 

or make the case for conviction clearly and significantly more persuasive. See Taylor, 

332 S.W.3d at 490; Almanza, 686 S.W.2d at 171. Thus, Valencia did not suffer egregious 

harm.

III. CONCLUSION

Having concluded that the error in the jury charge did not result in egregious 

harm, we overrule Valencia’s sole issue on appeal and affirm the trial court’s judgment.

death and that such conduct caused the other person to have such fear or to feel 

“harassed, annoyed, alarmed, abused, [or] tormented.” Tex. Penal Code Ann. 

§ 42.072(a)(1), (2).
14

/s/ Brian Walker

Brian Walker

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: August 10, 2023