NUMBER 13-20-00109-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ALEJANDRO CABALLERO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law No. 5

of Cameron County, Texas.

DISSENTING MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Silva

Dissenting Memorandum Opinion by Chief Justice Contreras

I agree with the majority that the jury charge was erroneous because it (1) failed 

to include an incident-specific unanimity instruction, and (2) failed to include the 

instruction mandated by Texas Penal Code § 2.05(a)(2). However, I respectfully dissent 

because I would find that appellant was egregiously harmed by the errors.

When a jury charge contains multiple errors, courts may assess the cumulative 
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effect of the errors in determining whether the appellant suffered egregious harm. See 

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (“It is conceivable 

that a number of errors may be found harmful in their cumulative effect.”); Abbott v. State, 

196 S.W.3d 334, 349 (Tex. App.—Waco 2006, pet. ref’d).

First, with respect to the lack of an incident-specific unanimity instruction, I would 

find that the state of the evidence supports a finding of egregious harm. The majority 

likens this case to Cosio v. State, 353 S.W.3d 766, 771–72 (Tex. Crim. App. 2011), in 

which the Texas Court of Criminal Appeals found no egregious harm resulting from the 

lack of an incident-specific unanimity instruction. That case is distinguishable. Cosio was 

charged with four counts of indecency with a child, but the evidence showed multiple 

instances of misconduct that supported each count; therefore, the court erred by failing 

to instruct the jury that it had to be unanimous as to which instance supported each count. 

Id. at 774 (noting that “[t]he jury could have relied on separate incidents of criminal 

conduct, which constituted different offenses or separate units of prosecution, committed 

by Cosio to find him guilty”). Nevertheless, Cosio did not suffer egregious harm from the 

error, in large part because Cosio’s “defense was essentially of the same character and 

strength across the board” with respect to each of the four instances of misconduct. Id. at 

777. Specifically, “Cosio’s defense was that he did not commit any of the offenses and 

that there was reasonable doubt as to each of the four incidents because [the 

complainant] was not credible and the practical circumstances surrounding the incidents 

of criminal conduct did not corroborate [the complainant’s] testimony.” Id. Because 

Cosio’s defensive theory as to all four instances was that the complainant was not 

credible, it is “highly likely that the jury’s verdicts . . . were, in fact, unanimous.” Id. at 778 
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(observing that, “[h]ad the jury believed otherwise, they would have acquitted Cosio on 

all counts”).

Here, as in Cosio, there was evidence of multiple discrete instances of misconduct 

which would have supported a deadly conduct conviction: (1) the stoplight incident, and 

(2) the Stripes incident. But appellant raised slightly different defensive theories as to 

each incident—as to the stoplight, appellant claimed that the gun was unloaded and that 

it was placed in the center console and never brandished; as to Stripes, appellant said he 

was holding his cell phone, not a gun. Notably, McClain testified he “can’t be positive” 

that appellant was holding a gun at the Stripes, whereas his testimony regarding the 

stoplight incident was far less equivocal. The “character and strength” of the evidence 

was not the same with respect to the two instances of misconduct. Cf. id. at 777. Unlike 

in Cosio, it is eminently feasible that the jury could have believed one defense but 

disbelieved the other—and if that was the case, the lack of an incident-specific unanimity 

instruction directly caused the rendition of a non-unanimous verdict.

Second, I would also find that the record supports a finding of egregious harm with 

respect to the lack of a § 2.05(a)(2) instruction. I agree with the majority that the lack of 

such an instruction was error and that there was nothing else in the jury charge to remedy 

the harm suffered. Moreover, as the majority concedes, the State explicitly informed the 

venire panel as to the presumption contained in penal code § 22.05(c), but it never

similarly informed the jury that, under § 2.05(a)(2), the presumption is not mandatory. See

TEX. PENAL CODE ANN. § 2.05(a)(2). Both of these factors support a finding of egregious 

harm.

I would additionally find that the state of the evidence in the record supports such 
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a finding. Penal code § 22.05(c) provides that, for purposes of the deadly conduct offense, 

“[r]ecklessness and danger are presumed if the actor knowingly pointed a firearm at or in 

the direction of another whether or not the actor believed the firearm to be loaded.” Id.

§ 22.05(c). Here, appellant testified that his gun was not loaded, and there was no 

evidence to the contrary. Without the § 22.05(c) presumption, evidence that a person 

brandished an unloaded gun would not be enough to prove recklessness or danger to 

another, two essential elements of the offense of deadly conduct. See id. § 6.03(c) (“A 

person acts recklessly, or is reckless, with respect to circumstances surrounding his 

conduct or the result of his conduct when he is aware of but consciously disregards a 

substantial and unjustifiable risk that the circumstances exist or the result will occur. The 

risk must be of such a nature and degree that its disregard constitutes a gross deviation 

from the standard of care that an ordinary person would exercise under all the 

circumstances as viewed from the actor’s standpoint.” (emphasis added)). If the jury 

believed appellant’s uncontroverted testimony that the gun was unloaded, it would still 

have convicted appellant based on the mandatory presumption in § 22.05(c) and the 

absence of the required § 2.05(a)(2) instruction.

The majority cites Neely v. State, 193 S.W.3d 687–88 (Tex. App.—Waco 2006, no 

pet.) and Garrett v. State, 159 S.W.3d 717, 721 (Tex. App.—Fort Worth 2005), aff’d, 220 

S.W.3d 926 (Tex. Crim. App. 2007), for the proposition that “where the great weight of 

the evidence supports the facts giving rise to the presumption, egregious harm has not 

occurred.” But those cases are inapposite because they asked whether the appellant was 

harmed by the lack of an instruction on § 2.05(a)(2)(D), which states that “if the jury has 

a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, 
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the presumption fails and the jury shall not consider the presumption for any purpose.” 

See TEX. PENAL CODE ANN. § 2.05(a)(2)(D). Because the great weight of the evidence 

supported the predicate facts in those cases, a § 2.05(a)(2)(D) instruction would not have 

made a difference to the result. Here, on the other hand, appellant was harmed from the 

lack of an instruction under § 2.05(a)(2)(B), which provides “that if [the predicate facts]

are proven beyond a reasonable doubt the jury may find that the element of the offense 

sought to be presumed exists, but it is not bound to so find.” Id. § 2.05(a)(2)(B). Section 

2.05(a)(2)(B) operates as a constitutional backstop, ensuring that even statutes 

ostensibly establishing “mandatory” presumptions do not relieve the jury of its 

responsibility to find each essential element of the offense beyond a reasonable doubt.

See Willis v. State, 790 S.W.2d 307, 309 (Tex. Crim. App. 1990) (“[M]andatory 

presumptions are deemed unconstitutional because they eliminate the State’s 

constitutionally required burden of proving guilt beyond a reasonable doubt.”). When the 

instruction is erroneously omitted, a defendant is deprived of this constitutional protection.

Here, appellant was harmed by the omission because it deprived him of his right to have 

the jury find two essential elements of the offense—recklessness and danger—beyond a 

reasonable doubt. See Bellamy v. State, 742 S.W.2d 677, 686 (Tex. Crim. App. 1987)

(finding egregious harm from the lack of a § 2.05(a)(2) instruction where the presumed 

fact—appellant’s knowledge that the property received was stolen—was the “sole

contested issue,” there was conflicting testimony on the issue, and the prosecutor 

mentioned the presumption to the jury); Ross v. State, 594 S.W.3d 566, 572 (Tex. App.—

Amarillo 2019, no pet.) (finding egregious harm from the lack of a § 2.05(a)(2)(B)

instruction where “the circumstantial evidence of appellant’s intent [the presumed fact]
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largely rested on the predicate facts that give rise to the statutory presumption”); RamirezMemije v. State, 466 S.W.3d 894, 901 (Tex. App.—Houston [14th Dist.] 2015, no pet.)

(finding egregious harm from the lack of a § 2.05(a)(2) instruction where the presumed 

fact—appellant’s intent to defraud or harm—was the “sole contested issue” and the

evidence of intent was “not overwhelming”).

For the forgoing reasons, and in light of the specific circumstances present here, I 

would conclude that the charge errors cumulatively caused egregious harm because they 

affected “the very basis of [appellant’s] case,” “deprive[d him] of a valuable right,” or 

“vitally affect[ed] a defensive theory.” See Cosio, 353 S.W.3d at 777; Chamberlain, 998 

S.W.2d at 238. Accordingly, I would reverse the trial court’s judgment and remand for 

further proceedings. I respectfully dissent.

DORI CONTRERAS

Chief Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed on the

3rd day of June, 2021.