Opinion filed August 31, 2023

In The

Eleventh Court of Appeals __________

No. 11-22-00098-CR 

__________

ENRIQUE GUADALUPE ORTEGA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR28488

M E M O R A N D U M O P I N I O N

Appellant, Enrique Guadalupe Ortega, Jr., contests his conviction for

unlawful possession of a firearm by a felon, a third-degree felony. See TEX. PENAL 

CODE ANN. § 46.04(a), (e) (West Supp. 2022). The indictment included an 

enhancement allegation which, if found to be “true,” would increase the punishment 

range for the offense to that of a second-degree felony under the repeat offender 

statute. See id. § 12.42(a) (West 2019). Appellant elected to have the trial court 
2

assess his punishment. Based on Appellant’s plea of “true,” the trial court found the 

enhancement allegation to be “true” and assessed his punishment at twelve years’

confinement in the Institutional Division of the Texas Department of Criminal 

Justice. In two issues, Appellant argues (1) that the trial court’s omission of nonstatutory definitions in the abstract portion of the charge and the failure to define the 

elements of the charged offense in the abstract portion of the charge were both

egregiously harmful; and (2) that the trial court’s admission of the contents of a 

backpack containing ammunition was an abuse of discretion. We affirm.

Factual and Procedural History

Brownwood Police Department Officer Roberto Rodriguez initiated a traffic 

stop based on an expired registration. The driver of the vehicle continued driving 

for about one and one-half blocks; Officer Rodriguez saw “a lot of movement from 

every occupant of the vehicle.” Once stopped, the driver tried to immediately exit 

the vehicle, and Appellant, who was seated in the front passenger seat, reached down 

to the front floorboard. Officer Rodriguez called for backup and, after the officers 

secured the two other occupants(both with outstanding warrants), Officer Rodriguez 

asked Appellant to step out of the vehicle. As Appellant did so, Officer Rodriguez 

saw that Appellant was sitting on a firearm magazine loaded with ammunition. 

Based on the loaded magazine, Officer Rodriguez suspected that there might be a 

firearm in the vehicle, and so he detained Appellant. Officers searched the vehicle, 

and Detective Aaron Taylor found a disassembled handgun. The recoil spring and 

receiver were stashed underneath the front passenger seat, and the retention plate 

and slide of the handgun were in the front passenger floorboard, covered by a 

disposable cup. All of the components of the firearm were found inside the vehicle.

While searching the trunk, officers found a backpack that Appellant claimed 

was his. The backpack contained two marihuana pipes, ammunition that matched

the caliber of the firearm, and some ammunition that did not. Officer Rodriguez 
3

testified that, although he knew that Appellant was a felon and that he was in 

possession of a firearm, he was uncertain about whether Appellant could lawfully 

possess a firearm on that particular date, given the five-year statutory time frame 

required by the felon-in-possession statute. As a result, Officer Rodriguez did not 

arrest Appellant at that time.

Appellant was later indicted for unlawful possession of firearm by a felon. At 

trial, Appellant objected to the admission of the contents of the backpack, but he did 

not object to the trial court’s charge. 

Standard of Review

“The purpose of the jury charge is to inform the jury of the applicable law and 

guide them in its application to the case.” Beltran De La Torre v. State, 583 S.W.3d 

613, 617 (Tex. Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. 

Crim. App. 1996)). The abstract paragraphs in the charge “serve as a glossary to 

help the jury understand the meaning of concepts and terms used in the application 

paragraphs of the charge,” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. 

App. 2012) and the application paragraphs apply the “pertinent penal law, abstract 

definitions, and general legal principles to the particular facts and the indictment 

allegations,” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). In the 

context of an abstract instruction, reversible error generally only occurs 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.” 

Crenshaw, 378 S.W.3d at 466. The “failure to give an abstract instruction is 

reversible only when such an instruction is necessary to a correct or complete 

understanding of concepts or terms in the application part of the charge.” 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). Further, a jury charge must 

include instructions informing the jurors “under what circumstances they should 
4

convict, or under what circumstances they should acquit” the accused. Mendez v. 

State, 545 S.W.3d 548, 553 (Tex. Crim. App. 2018) (quoting Gray v. State, 152

S.W.3d 125, 127–28 (Tex. Crim. App. 2004)).

A review of alleged jury-charge error involves two steps. Ngo v. State, 175 

S.W.3d 738, 744 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731–32 

(Tex. Crim. App. 1994). First, we determine if there is any error; second, if there is 

error, we must determine if the error is harmful requiring reversal. Ngo, 175 S.W.3d 

at 743–44; Abdnor, 871 S.W.2d at 731–32.

Not all jury charge errors require reversal on appeal. Reeves v. State, 420 

S.W.3d 812, 816 (Tex. Crim. App. 2013). If the charge is erroneous, then on appeal 

we must first determine if the defendant objected to the erroneous charge. Id. If the 

defendant objected to the erroneous charge, we will reverse if the record shows that 

the error caused “some harm.” Id. Conversely, if the defendant failed to object, an 

appellate court may only reverse upon a finding of “egregious harm.” Id. Egregious 

harm is harm that denies the defendant a fair and impartial trial. Nava v. State, 415 

S.W.3d 289, 298 (Tex. Crim. App. 2013). This is a difficult standard to meet, and 

the harm must be shown in the record. Reeves, 420 S.W.3d at 816. To assess harm, 

the appellate court reviews (1) the jury charge itself, (2) the state of the evidence, 

including weight and probative value, (3) counsel’s arguments, and (4) any other 

relevant information in the trial record. Vega v. State, 394 S.W.3d 514, 521 (Tex. 

Crim. App. 2013).

To ensure compliance with Article 36.14 of the Texas Code of Criminal 

Procedure, a trial court should “avoid including non-statutory instructions in the 

charge because such instructions frequently constitute impermissible comments on 

the weight of the evidence.” De La Torre, 583 S.W.3d at 617. A trial court is obliged 

to include statutory definitions that affect the meaning of an element of the charged 

offense. Lovings v. State, 376 S.W.3d 328, 337 (Tex. App.—Houston [14th Dist.] 
5

2012, no pet.). Conversely, “[w]here terms used are words simple in themselves, 

and are used in their ordinary meaning, jurors are supposed to know such common 

meaning and terms and under such circumstances such common words are not 

necessarily to be defined in the charge to the jury.” Druery v. State, 225 S.W.3d 

491, 509 (Tex. Crim. App. 2007) (quoting King v. State, 553 S.W.2d 105, 107 (Tex. 

Crim. App. 1977)).

Analysis

Appellant asserts two arguments within his first issue.

1 Appellant argues that 

the trial court’s omission of non-statutory definitions in the abstract was egregiously 

harmful; but also, that the trial court’s failure to define the elements of the charged 

offense in the abstract was egregiously harmful.

The jury charge provided the statutory definitions for “firearm” and 

“possession.” “Firearm” and “possession” are terms defined under Sections 46.01 

and 1.07 of the Texas Penal Code. See PENAL § 46.01(3), § 1.07(a)(39) (West 2021). 

But Appellant argues that the failure to include non-statutory definitions for 

“confinement” and “premises” left the jury to its own devices to understand these 

terms.2 The terms “confinement” and “premises” are not defined under 

Section 46.01, which is the statute that provides the definitions for offenses in 

1

Appellant briefs this as a single issue but raises two separate grounds within the issue. Although 

multifarious, we address each in the interest of justice. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. 

App. 2010) (citing TEX. R. APP. P. 38.1).

2

Appellant also vaguely argues that, in addition to “confinement” and “premises” being left 

undefined, “other terms perhaps found in an abstract paragraph” were also left undefined. “[A]n appellant 

is the master of his or her own destiny with respect to what issues the court of appeals is required to address 

within its written opinion.” Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017). We decline to 

make Appellant’s arguments for him. See TEX. R. APP. P. 38.1(f), (i); Lucio v. State, 351 S.W.3d 878, 898 

(Tex. Crim. App. 2011) (holding that appellant’s point of error was “inadequately briefed and presents 

nothing for review as this Court is under no obligation to make appellant’s arguments for her.”).
6

Chapter 46, or Section 46.04, the statute for the offense of conviction.

3

 See PENAL

§ 46.01, 46.04. Therefore, the trial court did not err when it omitted the definitions 

for these two terms and, as a result, permitted the jury to read them and ascertain

their common meaning. See Druery, 225 S.W.3d at 509.

Appellant also argues that the trial court erred when it failed to give an 

instruction in the abstract portion of the charge that delineated the elements of an 

offense under Section 46.04, and that this failure “acted as” a comment on the weight 

of the evidence. The application portion of the contested instruction reads as 

follows.

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

or about the 28th day of June, 2021, in Brown County, Texas, 

ENRIQUE GUADALUPE ORTEGA, JR, the defendant, having been 

convicted of the felony offense of Burglary of a Habitation on the 24th 

day of May, 2007, in cause number CR18478 in the 35th Judicial 

District Court of Brown County, Texas, did then and there intentionally 

or knowingly possess a firearm after the fifth anniversary of the 

defendant’s release from confinement following conviction of the 

felony at a location other than the premises at which the defendant 

lived, namely in a vehicle, then you will find the defendant guilty as 

charged of Felon in Possession of Firearm as set forth in the indictment 

in Cause Number CR28488. (Emphasis added).

Appellant takes particular issue with the emphasized phrase in the above paragraph.

This portion of the application section in the charge replicates the language of the 

indictment word for word. 

First, we note that a trial court’s failure to define the statutory elements in the 

abstract portion of the charge may constitute error. Compare Meanes v. State, 668 

S.W.2d 366, 374–75 (Tex. Crim. App. 1983) (contrary to Appellant’s contention, 

the offense was, “in effect, defined in the application [portion of the charge],” and 

3

“Premises” is defined in adjacent sections. See PENAL §§ 46.02, 46.03. In these sections, however, 

the definitions patently apply only to their respective sections. Id. § 46.02(a-2), 46.03(c).
7

“Appellant [did] not state how he was harmed by the absence of an abstract charge

on [the offense]”) with Alcoser v. State, 596 S.W.3d 332, 333 (Tex. App.—Amarillo 

2019, rev’d on other grounds, 663 S.W.3d 160 (Tex. Crim. App. 2022) (“The failure 

to include an abstract definition of an offense is error.”) and Fields v. State, No. 01-

20-00280-CR, 2022 WL 3268525, at *3, 8 (Tex. App.—Houston [1st Dist.] Aug. 

11, 2022, pet. ref’d) (omission of the elements of an underlying felony offense in the 

abstract portion was “charge error”); see also Alcoser, 663 S.W.3d at 166–67 (not 

addressing the issue because the State did “not dispute that the court of appeals 

correctly reversed Appellant’s convictions” on two other charges based on a finding 

that Appellant was “egregiously harmed by the cumulative errors” in the charge)

(emphasis added). However, in this case, we do not believe, based on a fair reading 

of the charge as a whole, that the trial court erred in failing to include the statutory 

elements of the charged offense. See Meanes, 668 S.W.2d at 375.

Second, a trial court does not comment on the weight of the evidence when

its charge tracks the language of the indictment, and the allegations in the indictment 

are preceded by the phrase, “if you find from the evidence beyond a reasonable doubt 

that. . . .” Wilson v. State, 419 S.W.3d 582, 595 (Tex. App.—San Antonio 2013, no 

pet.); see Coplin v. State, 585 S.W.2d 734, 736 (Tex. Crim. App. [Panel Op.] 1979) 

(a jury charge that tracked the language of the indictment after the phrase “if you 

find and believe” was not a comment on the weight of the evidence).

Moreover, even if the trial court erred in failing to define the statutory 

elements of the offense or such wording constituted an improper comment on the 

weight of the evidence, we conclude that such error was not egregiously harmful. 

See Belle v. State, 543 S.W.3d 871, 879 (Tex. App.—Houston [14th Dist.] 2018, no 

pet.) (the charge error did not cause the appellant egregious harm; the record 

reflected that the predicate felony was not a contested issue at trial). Appellant’s 

prior conviction was not a contested issue. Considering that the evidence of 
8

Appellant’s prior conviction was undisputed, uncontradicted, and seemed to have 

been taken almost as a “given” by the parties, the failure of the trial court to define 

the statutory elements—in particular the felony status element underlying 

Appellant’s complaint—and the trial court’s alleged comment on the weight of the 

evidence regarding Appellant’s status as a felon by failing to do so, was not 

egregiously harmful. See id. Nothing in the record before us, including the jury 

charge, all of the evidence admitted at trial, and the arguments of counsel, suggests 

that the jury was so confused by the complained-of instruction that Appellant was 

denied a fair and impartial trial. See Vega, 394 S.W.3d at 521–22; Herrera v. State, 

527 S.W.3d 675, 679 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). We 

overrule Appellant’s first issue.

Admissibility of Evidence under Rule 403

In Appellant’s second issue, he argues that the trial court erred when it 

admitted evidence of the backpack that contained ammunition. The State responds 

that Appellant has waived this argument because he did not continue to object after 

the first discussion with the trial court outside the presence of the jury.

To preserve error on appeal, a party must make a timely request, objection, or 

motion “with sufficient specificity to make the trial court aware of the complaint.” 

TEX.R. APP. P. 33.1(a)(1)(A). Generally, a party must object each time inadmissible 

evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 

1991). There are two exceptions. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. 

App. 2003). A party may (1) request a running objection or (2) obtain a ruling 

outside the presence of the jury. Id.; see TEX.R.EVID. 103(b). The second exception 

applies to this case. Appellant objected to the admissibility of the contents of the 

backpack outside the presence of the jury before the State first elicited testimony

about that evidence. The trial court ruled that the contents of the backpack, except 

for the two marihuana pipes, were admissible. Because Appellant obtained a ruling 
9

on the objections outside the presence of the jury, no further objections were 

necessary. Appellant preserved this argument for appeal.

The trial court has substantial discretion when ruling on a Rule 403 objection.

State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). “Rule 403 favors 

the admission of relevant evidence and carries a presumption that relevant evidence 

will be more probative than prejudicial.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. 

Crim. App. 2002) (citing Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. 

App. 1990)); see Martin v. State, 570 S.W.3d 426, 437 (Tex. App.—Eastland 2019, 

pet. ref’d). “Rule 403 requires exclusion of evidence only when there exists a clear 

disparity between the degree of prejudice of the offered evidence and its probative

value.” Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001). Therefore, in 

reviewing a trial court’s Rule 403 determination, we will reverse the trial court’s 

ruling only if a clear abuse of discretion is shown. Mozon v. State, 991 S.W.2d 841, 

847 (Tex. Crim. App. 1999); Montgomery, 810 S.W.2d at 392; Martin, 570 S.W.3d 

at 437. Under this standard, the trial court’s decision to admit or exclude evidence 

will be upheld so long as it is within the “zone of reasonable disagreement.” 

Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018).

When undertaking a Rule 403 analysis, a trial court must consider several 

factors (the Gigliobianco factors) and balance:

(1) the inherent probative force of the proffered item of evidence along 

with (2) the proponent’s need for that evidence against (3) any tendency 

of the evidence to suggest [a] decision on an improper basis, (4) any 

tendency of the evidence to confuse or distract the jury from the main 

issues, (5) any tendency of the evidence to be given undue weight by a 

jury that has not been equipped to evaluate the probative force of the 

evidence, and (6) the likelihood that presentation of the evidence will 

consume an inordinate amount of time or merely repeat evidence 

already admitted.
10

Garcia v. State, 630 S.W.3d 264, 268 (Tex. App.—Eastland 2020, no pet.) (quoting

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006)). These 

factors guide our analysis. “The first two Gigliobianco factors focus on the 

probative force of and the State’s need for the evidence.” Garcia, 630 S.W.3d at 

269. The term “probative value” refers to the inherent probative force of an item of 

evidence—that is, how strongly it serves to make the existence of a fact of 

consequence more or less probable—along with the proponent’s need for the 

evidence. Gigliobianco, 210 S.W.3d at 641. The remaining Gigliobianco factors 

focus on the potential negative effects of the proffered evidence. Garcia, 630 

S.W.3d at 269. 

While searching the vehicle, Officer Rodriguez found Appellant’s backpack 

in the trunk of the vehicle. Appellant told Officer Rodriguez that the backpack 

belonged to him. The backpack had fourteen rounds of ammunition that were the 

same caliber and brand that were in the magazine that Appellant was sitting on in 

the vehicle, as well as rounds of four other calibers: .22 long rifle, .410 shotgun, .38 

special, and both .32-20 and .38-20 Winchester.

Applying the Gigliobianco factors

The first Gigliobianco factor considers the extent to which the evidence serves 

to make fact of consequence more or less probable. Gigliobianco, 210 S.W.3d at

641; see Mechler, 153 S.W.3d at 440. The second factor examines the need for that 

evidence in support of a party’s case. Here, the evidence was relevant in proving 

that Appellant intentionally or knowingly possessed the firearm.

The rounds of .25 caliber FC brand ammunition in Appellant’s backpack were 

the same caliber and brand that were in the magazine that Appellant was sitting on 

in the vehicle. Appellant’s admission that the backpack was his when it contained

rounds matching those in the magazine and that could be used in the firearm, made 

the backpack and its contents relevant circumstantial evidence of Appellant’s intent 
11

to possess, and possibly use, the firearm. There was no direct evidence that 

Appellant intentionally or knowingly possessed the firearm. Therefore, the State’s 

need for this evidence was high. Appellant’s trial counsel questioned whether 

Appellant knew the firearm was in the vehicle and argued that the four other calibers 

of ammunition and disassembled firearm pieces were merely an “assortment of 

metal” rather than a firearm, thereby questioning whether the component pieces 

constituted a firearm. The backpack evidence cumulatively tended to rebut 

Appellant’s arguments and prove Appellant’s possession and control of the 

ammunition in the magazine, the disassembled gun, and the ammunition in the 

backpack. 

The additional ammunition is at least circumstantial evidence that he was 

familiar with firearms and the disassembled firearm in the vehicle. The trial court 

in its Rule 403 balancing test stated:

I will find that the prejudicial -- the probative value outweighs the --

substantially outweighs the prejudicial effect because under the 

circumstances thus far that has been testified to, as it relates to the 

firearm, it being taken apart, it would go to -- it would go -- it would 

have probative value as to the Defendant’s knowledge of ammunition, 

weapons, et cetera. So I will find that it has probative value.

Accordingly, regarding the first two Giglibianco factors as to the evidence’s 

probative force and the State’s need for it in the case, the evidence strongly favors 

the trial court’s decision to admit the evidence. 

As to Giglibianco factors three and four, the admission of the backpack and 

its contents was not unfairly prejudicial, nor was it confusing or distracting from the 

main issues. Again, Appellant admitted that the backpack was his. Evidence is 

unfairly prejudicial if it has a “tendency to tempt the jury” into finding guilt on 

grounds apart from proof of the offense charged. Mechler, 153 S.W.3d at 440–41.

The evidence related to an element of the offense—that Appellant intentionally or 
12

knowingly possessed the firearm—therefore, it was not unfairly prejudicial. Id.

Further, possession, or “actual care, custody, or control,” of the firearm was an 

essential element of the crime with which Appellant was charged. Accordingly, 

considering Giglibianco factors three and four, the evidence strongly favored the 

trial court’s decision to admit that evidence.

The last two Giglibianco factors address any tendency of the evidence to be 

given undue weight by the factfinder and the likelihood that it would be repetitive 

or time consuming. 210 S.W.3d at 641–42. There is no evidence that, in the 

admission of this evidence, undue time was consumed at trial. Once the ammunition 

was deemed admissible, the State spent minimal time developing the evidence 

through testimony and exhibits. Further, that the backpack contained ammunition,

combined with Appellant’s admission that the backpack (and by association its 

contents) were his, could all be properly weighed by the jury. The relevance of the 

evidence was apparent, and its potential to mislead or unfairly prejudice the jury was 

low. Weighing these last two Gigliobiano factors, we cannot say that the admission

of the contents of the backpack was an abuse of discretion by the trial court. 

Gigliobianco, 210 S.W.3d at 642.

Rule 403, which favors the admissibility of relevant evidence, provides that a 

trial court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of unfair prejudice. See TEX. R. EVID. 403. Weighing all 

of the Gigliobiano factors together, we conclude that the probative value of the 

evidence was not substantially outweighed by the risk of unfair prejudice. We 

cannot say that the trial court abused its discretion or that it acted unreasonably when 

it admitted evidence of the contents of the backpack. Martin, 570 S.W.3d at 437.

Accordingly, we overrule Appellant’s second issue.
13

This Court’s Ruling

We affirm the judgment of the trial court. 

W. BRUCE WILLIAMS

JUSTICE

August 31, 2023 

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.