COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RAFAEL GUILLEN,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee. 

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No. 08-08-00241-CR

Appeal from

 205th District Court

of El Paso County, Texas

(TC # 20070D05440)

O P I N I O N

Rafael Guillen was charged by indictment with capital murder and pled not guilty. A jury

found Appellant guilty and the trial court assessed punishment at life. For the reasons that follow,

we affirm.

FACTUAL BACKGROUND 

Appellant was originally arrested for a murder that took place in El Paso County, Texas in

2000. It took over four years for him to be extradited. He had been in custody in Mexico since his

arrest in November 2002 under a provisional arrest warrant.

On January 25, 2007, Jose Chavarria, chief inspector with the U.S. Marshall Service, met

with Appellant at the attorney general’s office hangar at the airport in Mexico City. Mexico Interpol

contacted Chavarria to let him know that Appellant was ready to be transported. Appellant

underwent a medical exam/physical at the prison and with Interpol. Chavarria testified that he and

Inspector Jesus Olzan picked up Appellant on the morning of January 25, 2007 and arrived at the

airport around 8 a.m. for their scheduled 10:55 a.m. flight. Appellant was in street clothes and was

restrained. His demeanor was described as very quiet and cooperative. He appeared normal and did
not look tired. 

The travel route via Continental Airlines began in Mexico City, then to Houston, and finally

on to El Paso. Chavarria could not recall whether Appellant slept or had anything to eat or drink on

the flight from Mexico City to Houston, but remembered that Appellant was offered breakfast and

drinks during the flight. Chavarria testified he had some “small talk” with Appellant. When they

arrived in Houston, theymet with deputies from the Houston office and went through customs during

an hour-and-a-half layover. Chavarria could not recall if Appellant had anything to eat during the

layover, nor could he remember whether Appellant slept or had anything to eat or drink during the

flight from Houston to El Paso. Appellant’s demeanor was again described as very quiet. Chavarria,

Olzan, and Appellant arrived in El Paso around 4 p.m. Once in El Paso, Appellant was turned over

to El Paso Police Officer Andres Sanchez and Deputy U.S. Marshall David Ochoa. 

Sanchez described Appellant’s demeanor as calm and coherent. He did not appear tired and

did not have any visible injuries. Appellant was transported to police headquarters. He was able to

walk on his own, and he did not appear sleepy or intoxicated. Appellant was turned over to

Detective Tony Ruiz. 

Detective Ruiz and Detective Rodriguez conducted the interview with Appellant. Detective

Ruiz explained the charges and the procedures for the interview process. Appellant began to talk

about the 2000 incident for about an hour-and-a-half to two hours before agreeing to give a formal

interview. At that point, Appellant was read his Miranda rights. His first statement lasted an hour. 

Ruiz testified that he did not coerce Appellant or promise him anything. Appellant appeared

coherent and did not appear to be tired, sleepy, or intoxicated. After the first statement, Appellant

was allowed to use the restroom and was given a soft drink. 

The detectives then stepped out of the interview room and discussed their belief that
Appellant was more involved than what he had initially confessed. They decided to re-approach

Appellant and talked with him for another hour-and-a-half before Appellant agreed to give a second

statement. During the second statement, Appellant’s demeanor was coherent and cooperative. 

Appellant filed a motion to suppress. At the hearing, he testified that prior to being picked

up at the attorney general’s office by the marshals he was being held at the Reclusorio prison in

Mexico City, where he had been incarcerated for four years. During the 24-hour period before he

was picked up he had been drinking and partying. He had not slept and was not aware he was going

to be picked up the next day. He had been without sleep for about three days. Appellant said he was

not offered any food or drink. The first time he had something to drink was at the police station. 

Appellant then testified that his statements were not true and that the officers made him

conform his testimony to what they wanted to hear. Between the first and second statements he was

told to change his story to put him at the scene of the crime because the “DA would probably take

it smoother on me and probably give me less time, stuff like that.” Appellant just wanted to sleep

and get it over with. On cross examination, he admitted that he did not have trouble walking and

that he was sobered up by the marshal’s visit. The trial court denied the motion and found that the

statements were not obtained in violation of Appellant’s rights under the Fourth, Fifth, Sixth, and

Fourteenth Amendments of the United States Constitution, the Texas Constitution, and Articles

38.21, 38.22 of the Texas Code of Criminal Procedure. 

At trial, the evidence showed that Mercedes Caballero was found murdered in her El Paso

home. She was stabbed about twenty times with what appeared to be a knife. At the time of the

initial investigation, there were no leads. Based on information provided by Mercedes’ brother, the

investigators were led to Ana Montti-Almaraz. Initially, they were unable to locate her. Based on

a Crime Stoppers tip, the investigators located a vehicle belonging to Primavera Baltazar and a cell
phone number possibly belonging to Ana. The officers were eventually told by Primavera’s mother

that Ana was using a cell phone registered in Primavera’s name. After searching the cell phone

records of the victim, the authorities were able to confirm that phone number belonged to Ana. 

On August 8, 2000, homicide detective Art Perez received information from a DEA agent

out of Houston, Texas regarding a homicide where a female victim had been stabbed to death. Perez

subsequently interviewed Maria del Pilar Gonzalez who identified Ana, Primavera, and a male

individual. Perez also interviewed Gabriella Barrio who corroborated the information given by

Maria. Gabriella was also able to identify Appellant as the unknown male individual. Based on the

information provided, Perez secured three arrest warrants for capital murder for Ana MonttiAlmarez, Primavera Baltazar, and Appellant. Ana Montti-Almarez was located in Mexico. The

purported motive for the murder was that the victim was having an affair with Ana’s husband. Perez

also obtained information that Ana gave specific instructions on how the murder should be carried

out so that the victim knew why she was to be killed. 

At trial, Inspector Chavarria, Officer Sanchez, and Detective Ruiz testified about the transfer

of Appellant from Mexico to El Paso. During the testimony of Detective Ruiz, Appellant’s first and

second statements were admitted as States Exhibits 65, 66, 67, and 68. At the beginning of the first

statement, Appellant was given his Miranda rights. He knew Ana through his childhood friend

Primavera. Appellant met with Ana at a shopping center in Juarez, Mexico. Ana wanted Appellant

to kill someone for her. Specifically, the girl was a police informant and was also seeing her

husband. When Primavera warned Appellant not to do the job alone, Appellant contacted his friend,

El Moreno. Appellant and El Moreno traveled to Mexicali on a bus and then flew to Juarez. 

Appellant showed El Moreno the house where the victim lived and then returned to Juarez. Four or

five days later, El Moreno told Appellant he had done the job and Appellant paid him. Appellant
explained to Ana how the murder occurred as El Moreno had explained it to him. El Moreno entered

the house and sat the victim on the chair in the kitchen and taped her. When El Moreno laid her 

down, a little girl appeared. El Moreno put the little girl in a bedroom and then returned to the

kitchen where he stabbed the victim. In his first statement, Appellant denied ever going into the

house or seeing the victim. 

At the beginning of his second statement, Appellant was again given his Miranda rights. He

explained that he went to the house with El Moreno and entered through the garage. Appellant had

a gun in his hand and demanded the victim to drop to the floor. When El Moreno began taping up

the victim, a little girl came out and Appellant took her into the bedroom. Appellant then went into

the garage to stand look out. He saw El Moreno stab the victim two or three times in the chest and

then push her to the floor. 

Appellant testified at trial that prior to being brought from Houston, he had never been to

El Paso. In 2000, Appellant came to Juarez with Primavera to attend a party that Ana hosted at a

ranch. It was at there that Ana first mentioned that he should kill the victim. Appellant returned to

Juarez sometime in late January and at that time Ana told him that she was going to hire a

professional. Appellant left for Tijuana and two years later he was arrested. 

Appellant also testified that he had not eaten and had been up a little over fifty hours when

he was transferred from Mexico. The first statement he gave to the police was not true. He gave the

statement because the detectives told him that they would talk to the DA and could get him off and

he could go home. He just made things up; in fact, El Moreno did not really exist. Appellant

claimed that prior to giving his second statement, the detectives told him that they did not believe

him and that he would have to say that he was at the murder scene. 

On rebuttal, Detective Ruiz testified that the he had not given Appellant details of the crime
prior to his statement. Detective Chavarria also denied giving Appellant details of the crime or

showing him photos before his statement. 

VOLUNTARINESS OF CONFESSION

In Point of Error One, Appellant challenges the voluntariness of his confession on dueprocess grounds. He contends that his confession was not voluntary because he was in need of sleep,

had a bad headache, and only wanted to end the interrogation. 

Standard of Review

In reviewing a trial court’s ruling on a motion to suppress, we apply the standard of review

enunciated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Under the Guzman

standard, we give almost total deference to a trial court’s determination of historical facts supported

by the record, especially when the trial court’s fact-findings are based on an evaluation of credibility

and demeanor. Guzman, 955 S.W.2d at 89. We afford the same amount of deference to the trial

court’s rulings on application of law to fact questions, also known as mixed questions of law and

fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. 

Id. However, we review de novo mixed questions of law and fact not falling within this category. 

Id.

Analysis 

“A statement of an accused may be used in evidence against him if it appears that the same

was freely and voluntarilymade without compulsion or persuasion[.]” TEX.CODECRIM.PROC.ANN.

art. 38.21 (Vernon 2005). A statement may be deemed “involuntary” under three different theories:

(1) failure to comply with Article 38.22 of the Code of Criminal Procedure (the Texas confession

statute); (2) failure to comply with the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966); or (3) failure to comply with due process or due course of law because the
statement was not freely given (e.g. coercion, improper influences, incompetency). Wolfe v. State,

917 S.W.2d 270, 282 (Tex.Crim.App. 1996); Moore v. State, 233 S.W.3d 32, 44 (Tex.App.--

Houston [1st Dist.] 2007, no pet.). A confession is involuntary “only if there was official, coercive

conduct of such a nature that any statement obtained thereby was unlikely to have been the product

of an essentially free and unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199,

211 (Tex.Crim.App. 1995); see also Cravin v. State, 95 S.W.3d 506, 510 n.3 (Tex.App.--Houston

[1st Dist.] 2002, pet. ref’d) (“The Texas Due Course of Law provision has not been held to provide

any greater protection than that afforded by the United States Constitution’s Due Process Clause.”).

A court bases its determination of whether a confession is voluntary on an examination of the totality

of the circumstances. Ramirez v. State, 116 S.W.3d 55, 58 (Tex.App.--Houston [14th Dist.] 1998,

pet. ref’d). Relevant circumstances for determining whether a defendant’s will has been overborne

include “length of detention, incommunicado or prolonged interrogation, denying a family access

to a defendant, refusing a defendant’s request to telephone a lawyer or family, and physical brutality. 

A defendant’s characteristics and status, as well as the conduct of the police, are important

concerns.” Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App. 1985)(citations omitted).

Appellant maintains that his statements were obtained in violation of due process because

he did not have enough sleep, had been drinking and using drugs, and had eaten one meal in two

days. However, the trial court found that Appellant was not under the influence of alcohol or

narcotics while making his statements. He was coherent, understood what was happening, and was

not influenced by any factor other than his decision to give the statement. The testimony of Chief

Chavarria, Officer Sanchez, Detective Rodriguez, and Detective Ruiz detailing the transfer of

Appellant from Mexico to the United States and the circumstances of his confession support the trial

court’s findings. Because we find no abuse of discretion in the trial court’s ruling, we overrule Point
of Error One. 

SUFFICIENCY OF THE EVIDENCE

In Points of Error Two through Seven, Appellant challenges the legal and factual sufficiency

of the evidence establishing certain elements of the offense of capital murder. We first address

Appellant’s challenge that the evidence is insufficient to corroborateAppellant’s confession because

there is no other evidence establishing the element of remuneration, a necessary element of capital

murder. 

Standard of Review

In assessing the legal sufficiency of the evidence to support a conviction, an appellate court

must consider all of the record evidence in the light most favorable to the verdict, and must

determine whether, based on that evidence and reasonable inferences therefrom, any rational trier

of fact could have found the defendant guilty of all the elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);

Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App. 2009). This familiar standard gives full

play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S.Ct. at 2789; Klein v. State, 273 S.W.3d 297, 302 (Tex.Crim.App. 2008). We consider

all of the evidence, whether admissible or inadmissible. Clayton v. State, 235 S.W.3d 772, 778

(Tex.Crim.App. 2007); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). When the record

supports conflicting inferences, we presume that the fact finder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Clayton, 235 S.W.3d at 778. The same

standard of review is used for both direct evidence and circumstantial evidence cases. Hooper v.

State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). 
In reviewing factual sufficiency of the evidence to support a conviction, we are to view all

the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7

(Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In performing

our review, we are to give due deference to the fact finder’s determinations. See Johnson, 23 S.W.3d

at 8-9; Clewis, 922 S.W.2d at 136. There are two ways in which the evidence may be factually

insufficient. The first is that the evidence supporting the verdict, though legally sufficient, is

nonetheless too weak to support it. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008);

Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). The second is that, when considering

conflicting evidence, the jury’s verdict is against the great weight and preponderance of the evidence. 

Thus, the question we must consider in conducting a factual sufficiency review is whether a neutral

review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is

so obviously weak as to undermine confidence in the fact finder’s determination, or the proof of

guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23

S.W.3d at 11.

Under the first part of this standard, we cannot conclude that a conviction is “clearly wrong”

or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted

to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). 

Under the second part, we cannot declare that a conflict in the evidence justifies a new trial simply

because we disagree with the jury’s resolution of that conflict. Id. Before finding that the evidence

is factually insufficient to support a verdict under the second part of the standard, we must be able

to say, with some objective basis in the record, that the great weight and preponderance of the

evidence contradicts the jury’s verdict. Id.

Corpus Delicti Rule
Evidence tending to show that a crime was committed must corroborate a defendant’s

extrajudicial confession. Williams v. State, 958 S.W.2d 186, 190 (Tex.Crim.App. 1997); Chambers

v. State, 866 S.W.2d 9, 15 (Tex.Crim.App. 1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128

L.Ed. 491 (1994); Fisher v. State, 851 S.W.2d 298, 302-03 (Tex.Crim.App. 1993). There must be

evidence independent of the confession of the fact that someone has committed the crime in

question. Williams, 958 S.W.2d at 190; McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.

1997). To establish the corpus delicti of murder, the evidence must show the death of a human being

caused by another’s criminal act. See Fisher, 851 S.W.2d at 303. The corroborating evidence need

not be sufficient to fully prove the underlying offense; rather, the corroborating evidence need only

render the commission of an offense more probable than it would be without the evidence. Williams,

958 S.W.2d at 190; Chambers, 866 S.W.2d at 15-16. Once corpus delicti requirements are met, a

confession to the crime is by itself sufficient evidence to support a conviction. Lane v. State, 933

S.W.2d 504, 507 (Tex.Crim.App. 1996). 

In Roy v. State, the appellate court held that the State was required to corroborate the corpus

delicti, including remuneration, with independent evidence. 891 S.W.2d 315, 322 (Tex.App.--Fort

Worth, 1994, no pet.). Roy argued that the State was required to produce independent evidence

corroborating the part of his confession concerning the promise of renumeration. Id. at 321; citing

Gribble v. State, 808 S.W.2d 65, 70 (Tex.Crim.App. 1990), cert. denied, 501 U.S. 1232, 111 S.Ct.

2856, 115 L.Ed.2d 1023 (1991)(court held that evidence independent of appellant’s confession was

required to show that his victim had been kidnapped). The court recognized that several capital

murder cases following Gribble had applied its holding, but all the cases involved underlying

felonies, not the circumstances of remuneration. Id. at 322; see e.g., Emery v. State, 881 S.W.2d

702, 705 (Tex.Crim.App. 1994)(burglary), petition for cert. filed, (U.S. Sept. 20, 1994)(No.
94-6175); Chambers v. State, 866 S.W.2d 9, 15-16 (Tex.Crim.App. 1993)(aggravated sexual

assault), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994); Lookingbill v. State,

855 S.W.2d 66, 73-74 (Tex.App.--Corpus Christi 1993, pet. ref’d)(robbery). No Texas case had

applied Gribble to require independent evidence of the promise of remuneration in capital murder. 

Id. at 322. In Roy, the State attempted to argue that Gribble was limited to aggravating felonies that

elevated murder to capital murder. Id. The court disagreed, noting that if the State’s position were

adopted, it would essentially be holding that the corpus delicti for capital murder is the same as that

for murder. Id. Although it required the State to corroborate the corpus delicti--including

remuneration--with independent evidence, the court found that the evidence was sufficient. Id. In

his confession, Roy stated that his mother offered to give him his father’s truck and “a lot of money”

if he would kill his father. He was to receive the money when the insurance check arrived. Id. at

322. There was also independent evidence showing (1) a source (life insurance policy) for the

remuneration; and (2) complicity in the murder between the defendant and his mother. Id.

Specifically, there was evidence that the mother had taken out a $250,000 life insurance policy on 

her husband a year before the murder. She was the sole beneficiary. Id. Roy took his father’s truck

the night of the murder. His sister testified that their mother called him in the months leading up to

the murder, and she overheard a conversation between her mother and brother about two weeks

before the murder. Id. at 323. The mother instructed anotherindividual about what to saywhen Roy

called and the mother wrote down those instructions on a note and repeated them to Roy. Id. The

mother also became very upset and wanted the police to leave when they were questioning her

daughter. Id. While this evidence taken alone might be ambiguous, overall it rendered the

circumstances of remuneration more probable then it would be without the evidence. Id. Therefore,

any rational trier of fact could have found that there was some evidence that the circumstance of
remuneration was sufficiently corroborated. Id. 

Other courts have also applied the corpus delicti rule to the element of remuneration. In

Garza v. State, the appellant argued that absent the accomplice testimony, there was no evidence

corroborating his confession and establishing the corpus delicti of the offense. 915 S.W.2d 204,

210 (Tex.App.--Corpus Christi 1996, pet. ref’d); see also Tidrow v. State, 916 S.W.2d 623, 630

(Tex.App.--Fort Worth, 1996, no pet.)(court found testimony of accomplice and victim’s life

insurance policy to be sufficient independent evidence of a promise of remuneration). The Garza

court found that there is no requirement that accomplice testimony be disregarded in determining

whether an extrajudicial confession is adequately corroborated. Id. at 210. It also found the

evidence sufficient to establish the corpus delicti of capital murder for remuneration. Id. at 210. The

court relied on the testimony from the accomplice showing that the appellant expected to receive

payment through the accomplice for the killing and that payment was received immediately after the

killing. Id. at 210. 

In Scott v. State, the court required the State to corroborate the corpus delicti, including

remuneration, with independent evidence. 1999 WL314805, at *2 (Tex.App.--Houston (14thDist.),

1999, no pet.). There, an officer testified regarding the information he gathered through his

investigation, including an accomplice’s statement that the appellant paid him money before and

after the murder. Id. at *2. The victim intended to testify against the appellant in an upcoming trial. 

Id. The appellant also drove the accomplice to and from the murder scene. Id. This evidence was

sufficient to corroborate the element of remuneration. Id. 

And in Smith v. State, an accomplice testified that on the day of the murder, the appellant told

him that he would receive money once an insurance check was issued. 1999 WL 672519, at *4

(Tex.App.--Houston (14th Dist.) 1999, pet. ref’d). Without reaching the issue of whether the
appellant’s statements to the accomplice constituted an extra-judicial confession or otherwise

required corroboration, the court concluded that the record contained probative corroboration. Id.

The State urges us to consider the testimony of Detective Perez as sufficient corroboration. 

At trial, Perez testified that the victim was having an affair with Ana’s husband and that the killer

was given specific instructions so that the victim knew why she was being killed. The information

he received and the extent of the victim’s injuries led him to believe that the murder was a crime of

passion. The detective also testified that Ana was responsible for the murder and paid for it. In

rebuttal, Appellant argues that there is no evidence of remuneration other than this statement and

that the testimony is speculative hearsay. We disagree. Hearsay admitted without objection has

probative value. Chambers v. State, 711 S.W.2d 240, 247 (Tex.Crim.App. 1986). The testimony

of Detective Perez has probative value and renders the commission of capital murder for

remuneration more probable than it would be without the evidence. See Williams, 958 S.W.2d at

190; Chambers, 866 S.W.2d at 15-16. We overrule Points of Error Two and Three.

Identity and Remuneration

In Points of Error Fourthrough Seven, Appellant contends that without his illegally obtained

confession, the evidence is legally and factually insufficient to prove the elements of identity and

remuneration. A person commits capital murder if “the person commits [a] murder (intentionally

or knowingly causing the death of an individual) for remuneration or the promise of remuneration

or employs another to commit the murder for remuneration or the promise of remuneration.”

TEX.PEN.CODE ANN. §§ 19.03(a)(3); 19.03(b)(Vernon 2003). In his confession, Appellant stated: 

(1) he agreed to kill the victim for $20,000; (2) he employed El Moreno to do the actual killing; (3)

he went with El Moreno to the victim’s home; (4) he stood watch while El Moreno stabbed her

twenty times; and (5) he gave $10,000 to El Moreno and kept $10,000 for himself. 
Sufficiency and admissibility of evidence are distinct issues: 

‘Sufficiency’ relates to whether the elements of an offense have been logically

established by all the evidence presented, both admissible and inadmissible.

‘Admissibility’ relates to the fairness of introducing evidence and its logical

relevance. Accordingly, legal and factual sufficiency issues must relate to the

elements of offense. The issue of whether or not evidence was illegally obtained is

not an element of the offense.

We recognize the decision to exclude evidence may hinge to some degree upon a

factual finding. But to the extent that the trial court’s decision rests upon a finding

of fact, the ultimate issue is still the admissibility of evidence.

Hanks v. State, 137 S.W.3d 668, 671 (Tex.Crim.App. 2004), citingCaddell v. State, 123 S.W.3d 722

(Tex.App.--Houston [14th Dist.] 2003). Factual sufficiency review is appropriate only with regard

to the sufficiency of the State’s proof as to the elements of the offense. Hanks, 137 S.W.3d at 672.

It is not appropriate as to the admissibility of evidence when such a question is submitted to the jury

pursuant to Article 38.23(a). Id.; see also Jordan v. State, 2005 WL 221405 at *1, 5 (Tex.App.--

Eastland 2005, pet. ref’d)(not designated for publication)(an issue under Article 38.22, section 6 of

the Texas Code of Criminal Procedure is also an “admissibility of evidence” issue, therefore

appellant was precluded from challenging the factualsufficiencyof the evidence relating to the jury’s

determination of the voluntariness question).

When an appellant challenges the legal sufficiency of the evidence by asking a court to view

less than all of the evidence, an appellant presents nothing for review. Morales v. State, 95 S.W.3d

561, 563 (Tex.App.--Houston [1st Dist.], 2002, pet. ref’d), citing Fuller v. State, 827 S.W.2d 919,

930-31 (Tex.Crim.App. 1992). The same holds true with regard to a factual sufficiency review. Id. 

We overrule Points of Error Four through Seven. 

JURY INSTRUCTION

In Point of Error Eight, Appellant argues that the trial court failed to properly instruct the jury
regarding the conduct elements applicable to the indicted offense. In its charge, the trial court

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. 

The definitions mirror those found in Sections 6.03(a) and 6.03(b) of the Texas Penal Code. 

TEX.PEN.CODE ANN. §§ 6.03(a); 6.03(b)(Vernon 2003). Appellant did not object to the charge. On

appeal, he complains that these definitions authorize conviction on the “nature of conduct” instead

of the “result of conduct.” 

In Cook v. State, the Court of Criminal Appeals held that it was error for a trial court not to

limit the abstract definitions of “intentionally” and “knowingly” in an intentional-murder case, which

is a result-of-conduct offense. 884 S.W.2d 485, 491 (Tex.Crim.App. 1994). Hughes v. State,

handed down the same day, held that it would be error in a capital murder case involving only two

of the conduct elements if the definitions included all three of the conduct elements. 897 S.W.2d

285, 295-96 (Tex.Crim.App. 1994). In Hughes, the definitional portion of the charge included the

full statutory definitions of intentionally and knowingly, including result, nature, and circumstances

of conduct language. Id. But because the offense did not contain a nature of conduct element, it was

error not to limit the definitions of culpable mental states to result and circumstances of conduct. 

Id.

We conclude that the trial court erred by including the “nature of conduct”, “result of

conduct”, and “circumstances” language in the definitions of “intentionally” and “knowingly.” But
since no objection was lodged at trial, we must determine whether the error was so harmful that the

defendant was denied “a fair and impartial trial.” Arline v. State, 721 S.W.2d 348, 351

(Tex.Crim.App. 1986); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). In other

words, a defendant must have suffered actual “egregious” harm. Arline, 721 S.W.2d at 351;

Almanza, 686 S.W.2d at 171. 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.” Arline, 721 S.W.2d at 351-52; Almanza,

686 S.W.2d at 171. 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 charge.” Hughes, 897

S.W.2d at 296; Cook, 884 S.W.2d at 492 n.6.

We are guided by Patrick v. State, 906 S.W.2d 481 (Tex.Crim.App. 1995). There , the court

found that even though the definitions of “intentionally” and “knowingly” set forth the three

alternative conduct elements, when viewing those terms in their factual context, it became apparent

which conduct element applied to which element of the offense. Id. at 493, citing Hughes, 897

S.W.2d at 297. The application paragraph stated that the appellant “did intentionally cause the death

of [the victim].” Id. Finding that the term “intentionally” directly modified the phrase “cause the

death,” the court held it was obvious that the “result of conduct” and “cause the result” language

were the applicable portions of the full Code definitions when referring back to the definitions of

culpable mental states. Id. 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. 

The harm analysis in Patrick is applicable here. The application paragraphs properly

instructed the jury to only apply the “result of conduct” language found in the definitions to the

“cause of death” language in the application paragraphs. Specifically, the application paragraphs

instructed the jury to only find Appellant guilty if he intentionally or knowingly caused the death of

Mercedes Caballero for remuneration, or if Appellant intentionally or knowingly caused the death

of Mercedes Caballero by employing “El Moreno” for remuneration or promise of remuneration to

commit the murder. Finding the error to be harmless, we overrule Point of Error Eight and affirm

the decision of the trial court.

July 28, 2010 

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)