In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-17-00229-CR

ANTHONY WILSON, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 102nd District Court

Bowie County, Texas

Trial Court No. 16F0386-102

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Justice Moseley
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MEMORANDUM OPINION

During the course of a robbery in Bowie County, Anthony Wilson, Jr., shot and killed 

Casey Smith. Wilson was indicted on one count of capital murder and, alternatively, one count of 

felony murder. A Bowie County jury found Wilson guilty of capital murder, and Wilson was 

sentenced to life in prison. On appeal, Wilson alleges that a flaw in the jury charge caused him 

egregious harm. Because we find no reversible error in the jury charge, we affirm. 

I. Was the Jury Charge Fundamentally Defective?

In his sole point of error on appeal, Wilson argues that because the abstract portion of the 

jury charge failed to include the definition of murder, the charge was “fundamentally defective 

because it directed the jury to find [him] guilty of capital murder based upon an underlying felony 

murder, rather than” an intentional murder, as alleged in the indictment. 

We employ a two-step process in our review of alleged jury charge error. See Abdnor v. 

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether error 

occurred and then evaluate whether sufficient harm resulted from the error to require reversal.” 

Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 

S.W.2d at 731–32).

“[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the 

court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). “A trial 

court must submit a charge setting forth the ‘law applicable to the case.’” Lee v. State, 415 S.W.3d

915, 917 (Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM. PROC. ANN. art. 

36.14 (West 2007)). “The purpose of the jury charge . . . is to inform the jury of the applicable 
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law and guide them in its application. It is not the function of the charge merely to avoid 

misleading or confusing the jury: it is the function of the charge to lead and prevent confusion.” 

Id. (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).

Here, count one of the indictment alleged that Wilson had committed capital murder by 

intentionally causing Smith’s death by shooting him with a gun in the course of committing or 

attempting to commit robbery. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011),

§ 19.03(a)(2) (West Supp. 2017). Count two alleged that Wilson had committed felony murder by 

committing an act clearly dangerous to human life, namely shooting Smith with a gun, while in 

the course of intentionally or knowingly committing robbery. See TEX. PENAL CODE ANN.

§ 19.02(b)(3) (West 2011). What distinguishes this alleged capital murder from felony murder is 

the intent to kill. See Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004) (citing 

Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999)). Although felony murder may be 

an unintentional murder committed in the course of committing a felony, “capital murder includes 

an intentional murder committed in the course of robbery.” Id. (citing Fuentes, 991 S.W.2d at 

272); see TEX. PENAL CODE ANN. §§ 19.02(b)(1), (3), 19.03(a)(2).

Section one of the jury charge defined felony murder, capital murder, and robbery as 

follows:

Our law provides that a person commits the offense of murder if commits 

or attempts to commit a felony, other than manslaughter, and in the course of and 

in furtherance of the commission or attempt, he commits or attempts to commit an 

act clearly dangerous to human life that causes the death of an individual.

Our law provides that murder, however, is capital murder when the person

intentionally commits the murder in the course of committing or attempting to 

commit the offense of robbery.
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Our law provides that a person commits the offense of robbery if, in the 

course of committing theft and with intent to obtain and maintain control of 

property of another, he intentionally or knowingly causes bodily injury to another.

While the charge includes definitions of felony murder, capital murder, and robbery, it fails to 

include the definition of murder under Section 19.02(b)(1), which states, “A person commits 

[murder] if he: . . . intentionally or knowingly causes the death of an individual.” TEX. PENAL 

CODE ANN. § 19.02(b)(1). The application portion of the charge read as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or 

about the 29th day of March, 2016, in Bowie County, Texas, the defendant, 

ANTHONY WILSON, JR., did then and there, intentionally cause the death of an 

individual, CASEY SMITH, by shooting CASEY SMITH with a gun, and the 

defendant, ANTHONY WILSON, JR.[,] was then and there in the course of 

committing or attempting to commit the offense of robbery, then you will find the 

defendant guilty of Capital Murder as charged in the indictment.

Unless you find beyond a reasonable doubt that defendant is guilty of 

Capital Murder, under these instructions, or if you have a reasonable doubt thereof, 

you will acquit him of that offense, and next consider whether he is guilty of the 

lesser offense of Felony Murder.

Now, if you find from the evidence beyond a reasonable doubt that on or 

about March 29, 2016, the defendant did then and there intentionally or knowingly 

commit a felony offense, to-wit: robbery, and while in the course of and in 

furtherance of the commission of the said offense, did then and there commit or 

attempt to commit an act clearly dangerous to human life, namely, shooting 

CASEY SMITH, which caused the death of CASEY SMITH, then you will find 

the defendant guilty of the lesser offense of Felony Murder.

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

have a reasonable doubt thereof, you will acquit the defendant of the lesser offense 

of Felony Murder and say by your verdict Not Guilty.
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Wilson argues that by omitting the definition of murder from the charge, the offense definitions 

instructed the jury “that they should find [him] guilty of capital murder if they found that [he] 

committed felony murder during the course of robbery.” We disagree. 

“The abstract or definitional portions of a jury charge are designed to help the jury 

understand the meaning of concepts and terms used in the charge’s application portions.” Martin 

v. State, 252 S.W.3d 809, 814 (Tex. App.—Texarkana 2008, pet. dism’d) (citing Caldwell v. State, 

971 S.W.2d 663, 667 (Tex. App.—Dallas 1998, pet. ref’d)). A jury is only “authorized to convict 

based on the application portion of a charge; an abstract charge or a legal theory does not bring 

that theory before the jury unless the theory is applied to the facts.” Id. (citing McFarland v. State, 

928 S.W.2d 482, 515 (Tex. Crim. App. 1996) (per curiam), overruled on other grounds by Mosley 

v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998); Campbell v. State, 910 S.W.2d 475, 477 

(Tex. Crim. App. 1995)).

“A charge is adequate if it contains an application paragraph that authorizes a conviction 

under conditions specified by other paragraphs of the charge to which the application paragraph 

necessarily and unambiguously refers.” 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 (Tex. Crim. App. 

1997)). “If the application paragraph of a jury charge does not incorporate a theory recited only 

in the abstract portion of the charge, a jury cannot convict on that theory.” Id. (citing Hughes v. 

State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994); Mallard v. State, 162 S.W.3d 325, 334 (Tex. 

App.—Fort Worth 2005, pet. ref’d)). Here, the trial court’s charge defined felony murder, capital 

murder and robbery, omitting the definition of murder. Even though the charge did not include 
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the Section 19.02(b)(1) definition of murder, the application paragraph regarding capital murder 

correctly applied the facts to the Section 19.02(b)(1) definition, thereby authorizing the jury to 

convict Wilson of capital murder only if it found that during the course of the robbery, Wilson 

intentionally caused Smith’s death by shooting him with a gun. We have previously held that even 

where the “abstract portion of the charge is questionable,” there is no jury charge error when, as 

here, “the application portion essentially tracks the indictment.” Id. at 815.

Further, because there was no objection to the jury charge below, Wilson was required to 

show that any harm suffered by him due to an error in the charge was egregious. In Martin, we 

also found that “[e]ven if there were error, there was no harm” because “[a]n erroneous definitional 

section of a jury charge can be ‘saved’ by a proper application section.” Id. Here, because the 

jury was only authorized to convict Wilson on the application paragraph, Wilson cannot 

demonstrate, as he argues, that by omitting the definition of murder from the charge, the charge 

essentially instructed the jury “that they should find [him] guilty of capital murder if they found 

that [he] committed felony murder during the course of robbery.” “Where the application 

paragraph correctly instructs the jury, an error in the abstract instruction is not egregious.” Medina 

v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see Grady v. State, 614 S.W.2d 830, 831 

(Tex. Crim. App. [Panel Op.] 1981). Therefore, we overrule Wilson’s first point of error. 
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We affirm the trial court’s judgment.

Bailey C. Moseley

Justice

Date Submitted: July 2, 2018

Date Decided: August 1, 2018

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