## 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. M emorandum Opinion by Justice Walker 

### E DWIN 

### C AMILLO 

### V

ALENCIA 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 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 Jane 1 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 per sonal 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 t he school district investigated the allegations and asked Valencia to resign

. A pproximately nine months later, Valencia called Jane , who responded, “ Leave
me alone

. Do no t call me. ” Two months later, Valencia came to Jane ’ s house uninvited

.

1 Although the complainant w as 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 arriv ing , 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 tr ial, 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

. Valen cia did not object to this error

. Th e 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 due

process 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. S tate , 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 i f he knowing ly engages in a “ scheme
or course of conduct ” that4

(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 m ember 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 pe rson ’ 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.

2 Relevant 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 infli ct 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. Pen al Code Ann. § 42.072 (a)

. T he 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 know n 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 threate ning 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 relat ionship 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 disju nctive 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

. V alencia , 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 egregio us harm is fact

- and case

specific. 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 informat ion revealed by the record of the trial as a whole. ” Almanza , 686 S.W.2d at 171 ; s ee 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 (citing7

Almanza , 686 S.W.2d at 172). The purpose of this review is to illuminate the actual, no t just theoretical, harm to the accused. Almanza , 686 S.W.2d at 174.

A. F ACTOR O NE —

T HE E NTIRETY OF THE J URY C HARG E
Mere err or 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, w e 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 appl y this misstatement

. Accordingly, this factor weighs in favor of finding
harm

. See id. 3
B. F ACTOR T WO — T HE S TATE OF THE E VIDENCE 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

. T he record

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

— Fort Worth 2023, pet. filed), Valencia contends t hat courts routinely reverse judgments on unpreserv ed jury charge error s in circumstances like those at issue here

. The jury charge in Alkayyali omi tted caus e 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 Alka yyali 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 reasonabl y support a finding against
Valencia on b oth the first and second elements.
The record reflects that Valencia and Jane ’s professional relationship changed in
the fall of 2020

. Specifically, Valencia began visit ing 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 o r 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 student s deliver them

. Valencia and Jane ’s Facebook relationship also changed in the fall of 2020 , whe n he started sending Facebook message s 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 V alencia9

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

. Valencia confessed th at he loved her , and she told him that she had not give n him any reason to feel that way

. After their discussion, Jane avoid ed Valencia, who still c a me 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 sto p. ” 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 investigat ed 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 a nd 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 summ er of 2021

.10

Valencia then showed up un invited 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 t he doorbell

. Jane testified that she panicked when she saw
Valencia t hrough 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 brea k ” 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 warn ings to stop is sufficient to satisfy both the first and third element s , 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 threats11

“ 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) ( incorporat

ing Secti on 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 tha t Jane was placed in fear or felt ha rassed by
Valencia ’ s behavior

. See id. § 42.072(a)(2)

. Accordingly, the evidence does not weigh in favor of finding egregious harm.

C. F ACTOR T HREE —

A RGUMENT OF C OUNSEL Valencia a sserts 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 regard ing 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 , a fter outlining the evidence supporting the State ’ s allegations, the prosecutor quoted the statute, stat ing , The Defendant knew or should rea sonably have known that the other person would regard such conduct as threatening bodily i njury 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 harasse d , 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. [ E mphasis added

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

w as [Valenc ia ’ s] intent? Two, did something actually happen? And, three, how did [sic] a reasonable person feel? ” These restatements and characterization s of the offense weigh against finding egregious harm

.

D. F ACTOR F OUR

— T RIAL AS A W HOLE Other relevant information in the rec ord reflects that the jury was advised of the
offense ’ s elements

. D uring 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 constitut es 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 b odily injury or death or did cause the other person to feel harassed, annoyed, alarmed, abused, or tormented. 4 [ E mphasis added

. ]

4 The 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 or13

The prosecutor further explaine d, “ 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 scen arios and soliciting analyses from the ve nir e panel members, the prosecutor reiterated that stalking requ ires “ [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, f rom the outset, the State identified the three elements of the offense

. Having examined the four Almanza factors, we conclude tha t 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 th at 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 ot her 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/ Br ian Walker
Brian Walker Justice Do Not Publish Tex. R. App. P. 47.2(b)
Delivered : August 10, 2023