1

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LUIS PEDREGON, 

Appellant,

v.

STATE OF TEXAS,

Appellee.

§

§

§

§

§

No. 08-18-00119-CR

Appeal from the 205th

Judicial District Court

of El Paso County, Texas

(TC# 20170D01684)

O P I N I O N

In this aggravated assault case, we face the always difficult task of assessing whether error 

in the jury charge--here conceded by the State--caused some harm to the defendant’s rights. 

Assessment of harm is highly case specific and requires a close examination of what happened 

during the complete course of the trial. Having made that assessment, we conclude that Appellant 

Luis Pedregon was not actually harmed by the jury charge error of which he complains. We 

therefore affirm the judgment of conviction.

I. BACKGROUND

Appellant was indicted on one count of aggravated assault with a deadly weapon in a fourpart indictment. The prosecution arose out of an incident in April 2016 whereby Appellant 

physically assaulted Pablo Lara in a parking lot. During the assault, Appellant broke Lara’s nose 
2

and central to the State’s case, attempted to asphyxiate Lara with a rope. Prior to trial, the State 

elected to proceed under two paragraphs of the indictment, charging that Appellant committed 

aggravated assault with a deadly weapon either by, (1) causing bodily injury or by, (2) threatening 

imminent bodily injury. At trial, Lara, Appellant, and several fact witnesses outlined the following 

series of events.

A. Evidence of the Assault

Ultimate Tactical Gear Supply sells law enforcement uniforms and equipment. Appellant 

was a frequent customer at the store. Lara also went to the store, sometimes to buy clothing, and 

sometimes to try and sell items to the store’s manager. On April 26, 2016, both Appellant and 

Lara were at the store. How they got into a fight that day was disputed; the fact that there was an 

altercation is not. At trial, the State introduced a surveillance video that captured Appellant on top 

of Lara in the store’s parking lot, with his hands around Lara’s head and neck area.1

The jury had to decide between two diametrically opposed stories as to how the struggle 

began. Lara testified that he had seen Appellant in the store before but had never had an interaction 

with him. On the day in question, Appellant greeted him as he entered the store, and then thanked 

him for coming as he left. As Lara mounted his motorcycle in the parking lot, he saw a yellow

rope come over his head and go around his neck, and heard Appellant say, “I want to put this on 

your neck.” Appellant then started hitting Lara. The motorcycle fell on top of Lara, leaving him 

on the ground with Appellant on top of him. Lara testified that Appellant broke his nose before 

using the rope to pull him up to standing position.

1 The surveillance video, retrieved from the business next door, did not record the entire interaction between Appellant 

and Lara. The recording began at the point when Appellant was already on top of Lara. Testimony indicated that the 

video system is motion activated and does not record unless there is sufficient movement to trigger the motion sensor.
3

Lara testified that the tension of the rope restricted his ability to breathe, so he fell back 

onto his knees and began crawling. Appellant next jumped on top of him and pulled on the rope, 

asking, “Who’s the mariquita [ladybug] now?” and, “Who stole my knife?” Appellant then placed 

his legs on Lara’s arms, pinning him flat against the parking lot surface, and tightened the rope 

around Lara’s neck so that he could not breathe. At that moment, the store manager exited the 

store and Lara asked for help. The manager told Appellant to leave, while Lara waited for law 

enforcement to arrive. Appellant can be seen running away from the store on another video clip 

from the security camera.

Appellant’s story was quite different. He claims that Lara had been in the store some weeks 

earlier trying to sell a canvas oil painting. Appellant made a comment about the need to have the 

painting appraised, which Lara took the wrong way. Appellant had also told the store manager 

that Lara had stolen Appellant’s knife several weeks prior. Appellant’s defense was that he acted 

in self-defense. He claimed that as Lara was leaving the store, Lara told him, “I’m going to mess 

you up.” Appellant purposefully followed Lara out of the store with the rope in his hand and 

attempted to “detain him.” Appellant admitted at trial that he had bought the yellow cord from the 

store that day and attached a rope handle to the end of the rope. According to Appellant, Lara

swung first, and the fight began.

Appellant testified that he was on top of Lara when the motorcycle fell over, and he tried 

to wrap Lara’s hands with the rope. At one point during his testimony Appellant stated that he did 

not place the rope around Lara’s neck. At another point, he said that the rope wound around Lara’s 

neck because Lara acted like a “cat play[ing] with string” while Appellant was on top of him with 

the rope. Appellant also testified that he never pulled on the rope to asphyxiate Lara, but only 

pulled on Lara’s collar.
4

For his part, Lara denied that he did anything to incite Appellant. The store manager 

testified that when he went outside, he saw Appellant and Lara on the parking lot pavement. He 

did not recall seeing the rope around Lara’s neck. But the State introduced photos of Lara that 

showed a ligature mark around his neck and his bloodied face. The State also introduced the rope 

into evidence. Lara explained how Appellant used a handle affixed to the end of the rope to 

squeeze the cord tighter during the assault. Lara also narrated the surveillance video, indicating 

where Appellant tightened the rope around his neck.

B. The Jury Charge

As noted above, the indictment alleged that Appellant committed an aggravated assault 

with a deadly weapon in two ways: by causing bodily injury, and by threatening to do so. 

Appellant filed a motion to require the State to elect which theory it would proceed to on verdict. 

The trial court overruled that motion and submitted both theories. And over the State’s objection, 

the trial court also instructed the jury on the issue of self-defense. The jury charge thus contained 

the following application paragraph:

If you find from the evidence beyond a reasonable doubt, that on or about the 26th 

day of April, 2016, in El Paso County, Texas, that the Defendant, LUIS 

PEDREGON, did then and there intentionally or knowingly or recklessly cause 

bodily injury to Pablo Lara, by tightening a rope around the neck of Pablo Lara and 

the said Defendant did then and there use or exhibit a deadly weapon, to wit: a rope, 

that in the manner of its use or intended use was capable of causing death or serious 

bodily injury, during the commission of or immediate flight from said assault,

OR

If you find from the evidence beyond a reasonable doubt that on or about the 26th 

day of April 2016, in El Paso County, Texas, the Defendant, LUIS PEDREGON, 

did then and there, intentionally or knowingly threaten Pablo Lara with imminent 

bodily injury and did then and there use or exhibit a deadly weapon during the 

commission of said assault, to wit: rope, that in the manner of its use and intended 

use was capable of causing death and serious bodily injury,

AND

You are further instructed, however, that if you find from the evidence beyond a 

reasonable doubt that at the time and place in question Pablo Lara, was not using 

or attempting to use unlawful deadly force on the Defendant nor a third person, or 
5

that the Defendant did not reasonably believe that neither he nor a third person was 

in danger of death or serious bodily injury, or that a reasonable person in the 

Defendant’s situation at the time and place in question would not have reasonably 

believed that neither he nor a third person were in danger of death or serious bodily 

injury by the words or conduct of Pablo Lara, then you will find Defendant LUIS 

PEDREGON Guilty of aggravated assault with a deadly weapon as charged in the 

Indictment.

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

reasonable doubt thereof, you will find the Defendant LUIS PEDREGON Not 

Guilty.

The jury convicted Appellant of aggravated assault with a deadly weapon and sentenced 

him to 10 years’ incarceration and a $3,500 fine. This appeal followed.

II. ISSUES ON APPEAL

In his first issue, Appellant contends that the trial court provided an erroneous jury 

instruction that did not require the jury to return a unanimous verdict concerning whether he was 

guilty of (1) aggravated assault with a deadly weapon by causing bodily injury or (2) aggravated 

assault with a deadly weapon by threat. In his second issue, Appellant argues that he was harmed 

by the jury-charge error, which he properly objected to. Appellant’s issues follow our accepted 

paradigm for review of jury-charge error: we first determine if the instruction was erroneous, and 

if so, we next determine whether the error caused sufficient harm to warrant reversal. Almanza v. 

State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (en banc) (op. on reh’g). We address each 

issue in turn.

III. THE TRIAL COURT PROVIDED AN ERRONEOUS JURY INSTRUCTION

A. Controlling Law

Texas law requires that a jury reach a unanimous verdict on each statutory element of a 

charged offense. French v. State, 563 S.W.3d 228, 233 (Tex.Crim.App. 2018), citing TEX.CONST.

art. V § 13; Jourdan v. State, 428 S.W.3d 86, 94 (Tex.Crim.App. 2014). The jury must agree that 
6

the defendant committed one crime. See Landrian v. State, 268 S.W.3d 532, 535 (Tex.Crim.App. 

2008). Jury unanimity is not violated when the jurors can choose among various “alternative 

manner and means of committing the same statutorily defined offense.” Jourdan, 428 S.W.3d at 

94. But if the charge includes distinct offenses submitted in the disjunctive, the charge should 

inform the jury that they must unanimously agree on at least one the offenses. Ngo v. State, 175 

S.W.3d 738, 745 (Tex.Crim.App. 2005) (en banc) (“Unanimity in this context means that each and 

every juror agrees that the defendant committed the same, single, specific criminal act.”).

A person commits an assault if they either, (1) intentionally, knowingly, or recklessly 

causes bodily injury; or (2) intentionally or knowingly threaten another with imminent bodily 

injury. TEX.PENAL CODE § 22.01(a)(1)-(2). Section 22.02 then defines an aggravated assault, in 

pertinent part, as being an assault under section 22.01, and the person “uses or exhibits a deadly 

weapon during the commission of the assault.” Id. § 22.02(a)(2).

The Court of Criminal Appeals has recognized that a “bodily injury” assault is a separate 

and distinct criminal offense from assault by “threat.” See Landrian v. State, 268 S.W.3d 532, 540 

(Tex.Crim.App. 2008). By extension, the court indicated that an aggravated assault by causing 

bodily injury is a separate and distinct crime from an aggravated assault by threat. See id. The 

former is a result-oriented offense, while the latter is a conduct-oriented offense. See id.

B. Analysis

At trial, the State sought to prove an aggravated assault with a deadly weapon two ways: 

by causing bodily injury or by threat. And because the charging instrument sought one conviction 

by demonstrating the elements of two separate offenses, the jury should have been instructed that 

it must unanimously agree that Appellant was guilty of at least one of the offenses before it could 

return a guilty verdict. See id. at 539. This charge failed to do so, and the State concedes that 
7

point. We also agree that the circumstances in Appellant’s case demonstrate jury-charge error 

because the trial court did not instruct the jury that it must unanimously decide at least one of the

disjunctively submitted offenses. See Ngo, 175 S.W.3d at 749 (finding that appellant was denied 

his right to a unanimous verdict in a prosecution where the State charged three separate offenses 

of credit card abuse in three paragraphs within a single-count indictment). We sustain Issue One.

IV. APPELLANT FAILS TO SHOW HARM

Finding error in the jury instruction begins, rather than ends, our inquiry. “Not all jurycharge errors require reversal.” Reeves v. State, 420 S.W.3d 812, 816 (Tex.Crim.App. 2013); see 

Almanza, 686 S.W.2d at 174 (noting that automatic reversal is not warranted for every jury-charge 

error). We must conduct an evidentiary review of the record as a whole to gauge the actual harm 

to Appellant. See Almanza, 686 S.W.2d at 174. In Issue Two, Appellant argues that he properly 

objected to the erroneous jury instruction and suffered some harm to warrant reversal. The State 

maintains that the record does not demonstrate that Appellant was harmed.

A. Standard of Review

The lens through which we conduct our harm analysis depends upon whether Appellant 

raised a jury unanimity objection at trial. If Appellant objected, reversal is proper if the error 

caused the defendant “some harm.” Id. at 171; Jordan v. State, No. PD-0899-18, 2020 WL 

579406, at *4 (Tex.Crim.App. Feb. 5, 2020). “Some harm” means actual harm and not a 

theoretical complaint. See Jordan, 2020 WL 579406, at *5. If the defendant did not object at trial, 

a reversal is warranted only if the error caused egregious harm. Id. at 4.

In either situation, we assess the actual degree of harm in light of the, (1) entire jury charge; 

(2) entirety of the evidence, including the contested issues and weight of probative evidence; (3) 

arguments of counsel; and (4) any other relevant information present in the record. See Almanza,
8

686 S.W.2d at 171; Reeves, 420 S.W.3d at 816. Neither party bears a burden of proof or persuasion 

in an Almanza harm analysis. See Warner v. State, 245 S.W.3d 458, 464 (Tex.Crim.App. 2008).

The State argues that we should apply Almanza’s egregious harm standard of review, 

because Appellant’s objection in the trial court did not preserve the issue raised in this appeal. 

Specifically, the State maintains that Appellant’s motion to require an election by State does not 

comport with his argument on appeal. We disagree. A defendant’s “objection to an erroneous 

jury charge need not constitute a paragon of clarity and specificity in order to trigger [Almanza’s]

some harm analysis.” See French, 563 S.W.3d at 235. Appellant preserved error under Almanza

if his objection was specific enough to alert the trial court that the charge allowed the jury to be 

non-unanimous concerning the way in which the offense was committed. See id. (noting that 

appellant’s objection was sufficient because, at the very least, it alerted the trial court that the 

unanimity instruction contained an error of some kind).

Appellant’s objection did just this. Appellant’s motion to require election by the State 

argued that the State must elect what specific offense of aggravated assault with a deadly weapon 

it would prosecute, in order to ensure a unanimous verdict, and counsel orally urged this objection 

to the trial court. The motion also argued that the State must elect in order to minimize the risk 

that the jury would convict because of the charged crimes collectively, rather than because one 

crime was proven beyond a reasonable doubt. Considering Appellant’s written motion and oral 

argument to the trial court, we conclude that his objection was at least specific enough to alert the 

trial court that the application paragraph contained some kind of error with respect to a juror 

unanimity issue. See id. Appellant preserved error, and we apply Almanza’s “some harm” analysis 

on review. See id.
9

B. Consideration of the Almanza Factors

Even the less exacting standard of some harm requires the record to demonstrate that the 

inclusion of the erroneous jury instruction caused actual, and not merely theoretical harm. See id. 

Appellant argues that the erroneous instruction caused some harm because the evidence did not 

demonstrate that he committed one of the charged offenses exclusively, and the remainder of the 

jury charge, and the record did not ameliorate the problem. The State maintains that the instruction 

did not cause actual harm because the evidence, arguments, and voir dire focused on aggravated 

assault with a deadly weapon causing bodily injury, and the jury rejected Appellant’s central 

defensive theory of self-defense. We agree with the State and conclude that the record does not

demonstrate that Appellant suffered some harm as a result of the jury-charge error.

1. The entire jury charge

In assessing this first factor, we look for anything in the balance of the jury charge that 

either exacerbated or ameliorated the error. See French, 563 S.W.3d at 236. After examining the 

entire jury charge, we conclude that nothing exacerbated the error. See id. The instructions begin 

with general principles laid out in easy-to-comprehend terms. Instructions concerning the 

applicable law follow, including definitions for aggravated assault with a deadly weapon and selfdefense. We set out the text of the application section above. The general principles section 

instructs that the verdict must be unanimous:

You may return a verdict only if all [12] of you agree on this verdict. This is not to 

say that you should surrender your personal belief as to whether the State has 

proven the Defendant guilty beyond a reasonable doubt or not as to any particular 

count, but that you should only return a verdict if the verdict is unanimous.

Appellant maintains that this unanimity instruction exacerbated the error because it 

contains the words “any particular count.” We disagree. The mandate for jurors to not surrender 

their personal belief as to Appellant’s guilt of any particular count, if anything, tends to ameliorate 
10

rather than exacerbate the jury-charge error, as we presume that the jury followed the written 

instructions. See Miles v. State, 204 S.W.3d 822, 827-28 (Tex.Crim.App. 2006) (noting that, in 

the absence of evidence to the contrary, a reviewing court assumes the jury followed its written 

instructions). As such, this factor does not weigh in favor of a finding of some harm. See French,

563 S.W.3d at 235.

2. The entirety of the evidence

The second category for an Almanza analysis requires the reviewing court to consider the 

entire record, including the contested issues and weight of probative evidence, to determine 

whether the evidence made it more or less likely that the instruction caused Appellant some harm. 

See Almanza, 686 S.W.2d at 171. Relative to this factor, two considerations weigh heavily against 

Appellant. First, the record contains no, or almost no evidence of an aggravated assault by threat, 

which militates against the possibility some jurors convicted based on the threat theory and some 

convicted on the injury theory. Second, Appellant’s defensive theory at trial centered on selfdefense, and not a denial of the aggravated assault.

As to the first consideration, we parallel the facts in this case to those in French v. State. 

French involved the same argument that Appellant advances here: two distinct crimes were 

submitted in the disjunctive and it was possible the jury was not unanimous in its general verdict 

as to which crime it convicted on. The crime at issue in French was aggravated sexual assault of 

a child. 563 S.W.3d at 232. The defendant there was charged with committing two distinct acts 

against the child, each of which were classified as distinct offenses. Id. at 233. The jury convicted 

the defendant, but the intermediate court noted the same error we identify here and found the error 

harmful. Id. at 232. The Texas Court of Court of Criminal Appeals, however, disagreed and 

reversed, finding no harmful error. The crux of its analysis was that there was an abundance of 
11

evidence germane to one of the charged offenses, but little to none for the other.2 Id. at 236-39. 

We view our record in the same way.

The testimony in our case contains virtually nothing about the threat theory. At most, Lara 

testified to this statement by Appellant:

[LARA]: I stopped the motorcycle and I ask -- I turned my head to the right side 

and I say to this person, “What are you trying to do?” And he say, “I want to put 

this on your neck.”

[PROSECUTOR]: And when he said, “I want to put this on your neck,” did you 

know what he was talking about?

[LARA]:. Yeah, about the rope.

Another brief reference to the statement is repeated in Lara’s cross-examination:

[DEFENSE COUNSEL]: “Here wait. Let me put this around your neck”?

[LARA]: Yes.

[DEFENSE COUNSEL]: So he said that to you in Spanish?

[LARA]: Yes.

In the sequence of Lara’s testimony, he first stated that the rope came over his head and around 

his neck. He then related the statement about “I want to put this on your neck.” If the statement 

came after the rope was around Appellant’s neck, it was less a verbal threat, and more a description 

of what had already occurred. And nothing about the statement directly threatens an injury. By 

contrast, the jury heard a great deal of evidence about an actual aggravated assault causing physical 

injury.

Lara testified that Appellant threw a yellow rope around his neck and began hitting him as 

he was on his motorcycle attempting to leave the store parking lot. He indicated that Appellant 

broke his nose and got on top of him as he crawled, choking him with the rope. Finally, Lara 

2 One offense involved penetration of the child’s anus, and the other penetration of the child’s sexual organ. The child 

testified to multiple occasions of the former, but as to the latter, had only claimed penetration of her sexual organ to a 

nurse, but quickly recanted that allegation, claiming she was mistaken. French v. State, 563 S.W.3d 228, 236-238

(Tex.Crim.App. 2018). 
12

testified that Appellant pinned him flat against the parking lot surface and tightened the rope 

around his neck so that he could not breathe. Lara explained how Appellant used the rope handle

affixed to the end of the rope to squeeze the paracord tighter around his neck.

The State introduced photographs of Lara’s head taken shortly after the assault, which 

depicted multiple lacerations, blood running down his nose, and asphalt debris across his forehead, 

both cheeks, and chin. Additional photographs documented ligature marks around Lara’s neck, 

and the yellow paracord with a rope handle affixed to the end laying on the parking lot surface 

next to Lara’s motorcycle.

Appellant testified that he purchased the yellow rope just prior to the incident and affixed 

the handle that day. Appellant admitted that he followed Lara out of the store with the rope in his 

hand. He grabbed Lara, and they started fighting, because he “was trying to detain” Lara. 

Appellant stated that he “got on top of” Lara, “rolled him around” and “pulled [Lara] on his back.” 

While Appellant was on top of Lara, he testified that he “started wrapping [Lara’s] hands up in the 

rope.”

Appellant further testified that the fight occurred after his “training instincts” kicked in 

from working in “detainee operations,” and “if [he] was mad, [Lara] would be dead.” Appellant 

did not deny that he was on top of Lara while Lara was on his hands and knees with the rope 

around his neck and indicated this occurred because Lara was being “uncooperative.” At one 

point, Appellant acknowledged that the rope was around Lara’s neck during the fight and that it 

caused the ligature marks, explaining, “[i]n a scuffle, things happen,” and “[w]hen you struggle 

against something, sometimes you get marks.”

Appellant argues that the evidence of whether the rope was actually around Lara’s neck is 

disputed (the store manager could not recall if he saw it or not, the video camera was positioned 
13

far away, and Appellant denied intentionally placing the rope around Lara’s neck). But the 

question is not whether the evidence of an aggravated assault by causing injury was disputed, but 

whether the jury had two alternatives to pick between and could have split its vote with some 

finding assault by causing injury, and some by threat. Because the evidence of threat was so thin, 

if not non-existent, we fail to see the likelihood of harm.

This conclusion is buttressed by the defense Appellant urged at trial. Appellant presented 

a theory of self-defense which presupposes his admission of the underlying offense. See Jordan, 

2020 WL 579406, at *1; Gamino v. State, 537 S.W.3d 507, 511-512 (Tex.Crim.App. 2017). Selfdefense is a “confession and avoidance” defense, meaning a defendant is not entitled to a selfdefense jury instruction unless he admits to the alleged conduct, although not necessarily every 

element. See id at 511-512. A defendant cannot invoke both self-defense and flatly deny the 

charged conduct. See Jordan, 2020 WL 579406, at *1; see also Villarreal v. State, 453 S.W.3d 

429, 437 (Tex.Crim.App. 2015). During the jury charge conference, the court found that Appellant 

admitted to sufficient conduct alleged in the indictment to entitle him to the defense.

That admission was corroborated by, (1) the testimony of Lara, (2) the weapon discovered 

at the scene, (3) the photographs and video recorded at the time of the assault, and (4) Appellant’s 

own testimony. By finding Appellant guilty, the jury indicated that it believed Appellant 

committed the offense and that it disbelieved the self-defense claim. See Braughton v. State, 569 

S.W.3d 592, 609 (Tex.Crim.App. 2018) (noting that a jury verdict of guilty is an implicit rejection 

of the defendant’s self-defense theory), citing Saxton v. State, 804 S.W.2d 910, 913-14 

(Tex.Crim.App. 1991) (en banc). The point here is that case was much less about whether an 

assault by threat occurred, and more about a claim of self-defense to an admitted physical struggle. 
14

So charge error directed at a nominal facet of the trial does not show harm. See French, 563 

S.W.3d at 235.

3. The arguments of counsel

In analyzing arguments, a reviewing court also determines whether any statements made 

by the parties exacerbated or ameliorated error in the charge. See Arrington v. State, 451 S.W.3d 

834, 844 (Tex.Crim.App. 2015). We conclude that this factor weighs neither in favor of nor 

against a finding of some harm, because the parties did not add to the charge error by telling the 

jury that it did not have to be unanimous with respect to the its verdict. Cf. id. (concluding that 

the factor weighed neither in favor nor against an egregious harm finding when neither party 

addressed unanimity during argument) with Ngo, 175 S.W.3d at 750 (finding egregious harm in 

part because the State informed the jury during closing argument that it need not be unanimous in 

its verdict). The State’s closing argument emphasized that the evidence demonstrated the elements 

of aggravated assault with a deadly weapon causing bodily injury. Neither party’s closing 

argument addressed the elements of aggravated assault with a deadly weapon by threat.3 While 

both parties addressed the law and evidence concerning self-defense during closing, neither party 

mentioned the unanimity instruction or the erroneous jury charge. Neither party invited the jury 

to convict Appellant without agreeing as to which criminal offense he committed. See id.

4. Other relevant information contained in the record

In considering the final Almanza factor, we examine the complete record, including voir 

dire and opening statements. See French, 563 S.W.3d at 236. Neither party discussed juror 

unanimity during voir dire or opening statements. Likewise, neither party discussed the elements 

3 The State once mentioned that Appellant stated to Lara, “I’m going to put this rope around your neck” during 

argument. The prosecutor did not use the statement to support the assault by threat theory but discussed it in the 

context of the witness credibility.
15

of aggravated assault by threat. During voir dire, the State explained that it had to prove the 

elements of aggravated assault causing bodily injury beyond a reasonable doubt and detailed those 

elements for the jurors. The State’s opening statement focused on the elements of aggravated 

assault with a deadly weapon by causing bodily injury, emphasizing that Appellant attacked and 

tried to strangle Lara. Upon reviewing the complete record, we conclude that the jury was never 

told, by any party or the trial court, that it need not return a unanimous verdict. As such, nothing 

militates in favor of finding some harm. See id. at 235.

After considering the charge error in light of all of the Almanza factors, we conclude that 

the record, as a whole, does not demonstrate that Appellant suffered some harm from the jury 

instruction. When the record demonstrates a risk of harm so small that it may be characterized as 

not “remotely significant,” or where the risk of harm is “highly unlikely” as to be “almost 

infinitesimal,” the harm resulting from the jury-charge error is only theoretical harm. See id. at 

239. As such, we overrule Issue Two.

We note that the trial court certified Appellant's right to appeal in this case, but the 

certification does not bear Appellant's signature indicating that he was informed of his rights to 

appeal and to file a pro se petition for discretionary review with the Texas Court of Criminal 

Appeals. See TEX.R.APP.P. 25.2(d). We thus find that the certification is defective and has not 

been corrected either by Appellant's attorney, or the trial court.

To remedy this defect, the Court ORDERS Appellant's attorney, pursuant to TEX.R.APP.P.

48.4, to send Appellant a copy of this opinion and this Court's judgment, to notify Appellant of his 

right to file a pro se petition for discretionary review, and to inform Appellant of the applicable 

deadlines. See TEX.R.APP.P. 48.4, 68. Appellant's attorney is further ORDERED, to comply with 

all the requirements of TEX.R.APP.P. 48.4.
16

V. CONCLUSION

Finding that the trial record as a whole does not demonstrate that Appellant suffered some 

harm as a result of the jury charge, we affirm the trial court’s judgment.

JEFF ALLEY, Chief Justice

March 10, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)