Edgar Cardenas v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

EDGAR CARDENAS, §
No. 08-18-00083-CR
Appellant, §
Appeal from the
v. §
346th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC#20180D01708)
§

OPINION

Appellant Edgar Cardenas (“Cardenas”) appeals his murder conviction for which a jury

sentenced him to fifty years in prison. We affirm.

BACKGROUND

During the evening of October 30, 2015, Cardenas hung out with a group of peers,

including nineteen-year-old twin brothers Luis Fernando (“Fernando”) and Luis Francisco

Delgado (“Delgado” or “deceased”). Throughout the evening Cardenas argued with Angel Loya

(“Loya”) and the twins. At one point during the evening, Cardenas drew a knife from his pocket,

showed it to Gilbert Saucedo and said he was getting “tired of the twins” and he planned to scare

them. Later in the evening after consuming alcohol, marijuana, and cocaine, Cardenas argued with

Delgado. According to Griselda Campos (“Campos”), after his argument with Delgado, Cardenas
again pulled out the knife, showed it to Campos and said he was “not messing around.”

As the night turned into the early morning hours of October 31, 2015, Cardenas and

Delgado agreed to fight in a yard behind a residence owned by Campos’ mother-in-law. The others,

including Fernando, Campos, and Loya watched as the two fought. When the fight began, Delgado

grabbed Cardenas by his feet and caused him to fall to the ground. While Cardenas was on the

floor Fernando kicked Cardenas. At one point, a dog, described as a pit bull attempted to intervene

in the fight. However, according to Loya, he pulled the dog away before it could cause injury.

Meanwhile, Loya’s mother, Rebecca Zamora, who lived across the street, was awakened

by a neighbor who reported a fight was occurring. Zamora ran to the location of the fight and

yelled to the men to stop fighting and warned them that she was going to call the police. According

to Zamora, the fight ended when Delgado stated, in Spanish, “No more, no more, no more, no

more.” As he spoke, Delgado was “folded over grabbing his stomach.” Loya assisted Delgado into

a nearby mobile home in which the twins were staying. Loya later called for an ambulance.

An ambulance arrived at 1:42 a.m. Daniel Antonio Sanchez, an advanced medical

technician, helped transport Delgado to the hospital. Sanchez located two stab wounds in

Delgado’s abdomen, and one stab wound in his forearm. While administering aid, Sanchez noticed

one of the stab wounds in Delgado’s abdomen was so deep his intestines protruded through the

wound. Delgado was pronounced dead at the hospital at 3:06 a.m. Delgado’s hospital records

indicated his liver was lacerated and his right kidney was seriously injured. An autopsy revealed

additional “sharp force injuries” to Delgado’s left forearm, left wrist, chest, and abdomen. The

medical examiner testified there were at least six “inside wounds” which differentiated from the

stab wounds in that they traveled longer along the surface of the skin but were not as deep as the

2
stab wounds to the abdomen. One stab wound to the abdomen was three inches deep, travelled

upwards, front to back, left to right and was the cause of Delgado’s death.

Shortly after the fight ended between Cardenas and Delgado, Karina Garcia went inside

the residence along with Cardenas and two others. Garcia saw Cardenas holding a knife, but the

blade was not exposed. Cardenas showed the group his thumb, which he said was broken, and told

the group he stabbed Delgado. Garcia did not believe him, however, because she saw no blood on

him. Garcia told Cardenas to put the knife away, which he did by placing it in his right pocket.

Cardenas then left the residence along with Christian Poor, Garcia, and Campos in Poor’s Tahoe,

which Poor drove. While traveling in the Tahoe, Campos asked Cardenas what he did to Delgado,

to which Cardenas replied, “it was just a little cut . . . nothing was going to happen to [Delgado].”

Cardenas pointed to his abdomen to show Campos where he “cut” Delgado. According to Campos,

Cardenas told her he “cut” Delgado because he was afraid of being attacked by the dog. Campos

then asked Cardenas what he did with the knife. Cardenas did not respond.

Later in the day, Cardenas was arrested and transported to the police station. At

approximately 10:00 a.m. on October 31, 2015, after waiving his Miranda rights, Cardenas agreed

to participate in a video-recorded interview. During the twenty-seven-minute interview, which was

played at trial, Cardenas admitted to carrying a knife in his pocket during the hours preceding

Delgado’s death. He explained he found the knife days earlier. He described the knife as having a

black handle and a black blade that opened “straight up” by the press of a button. Cardenas also

admitted to physically fighting Delgado, but claimed Delgado provoked him.

Although Cardenas remembered a dog attempted to bite him during the fight, he initially

claimed he could not remember what happened after the dog’s attempted intervention. Later in the

3
interview, however, when a detective asked Cardenas whether he was more afraid of Delgado or

the dog, Cardenas said, “when I pulled out the knife, the dog was gonna try to bite me.” He said

he did not fear for his life during the fight. When the detectives asked Cardenas why he pulled out

his knife during the fight, Cardenas said, “I think it was for the dog because I saw the dog was

gonna try to bit [sic] my leg.” Cardenas explained that as the dog approached, he stood up and

“went like that” only once. Cardenas demonstrated to the detectives how he used the knife by

cupping his right hand and sweeping his extended right arm in an upward motion. He said Delgado

was standing next to the dog. He also claimed he did not know what happened to the knife after

the fight.

When asked what he was thinking after the fight, Cardenas said he knew he “did wrong.”

Cardenas said he remembered that after the fight, Fernando accused him of stabbing Delgado

which prompted Cardenas to leave the residence because he was afraid of Fernando. Cardenas

admitted he told his family he got into a fight and that he thought he stabbed someone. During the

interview Cardenas wore a cast on his left hand and explained he had obtained medical treatment.

He thought he broke his thumb during the fight, but had no other visible injuries. According to his

medical records Cardenas was diagnosed with a dislocated left thumb and a closed head injury

“without loss of consciousness” and a facial contusion, which were all attributed to a “[f]all down

stairs.”

DISCUSSION

In four issues, Cardenas contends: (1) the evidence was legally insufficient to support one

of three alternate murder allegations of which Cardenas was charged by indictment; (2) the jury

charge erroneously omitted an instruction on aggravated assault by threat with a deadly weapon;

4
(3) the jury charge failed to limit the elements of the culpable mental state definitions of

“intentionally” and “knowingly” to the result of conduct element; and (4) the jury charge

erroneously shifted the burden of proof on self-defense from the State to Appellant.

I. Legal Insufficiency of the Evidence

In his first issue, Cardenas contends no evidence supported the felony-murder allegation

submitted to the jury under Section 19.02(b)(3) of the Texas Penal Code.

A. Procedural Background

Cardenas was charged by indictment with one count of murder. In three paragraphs, the

indictment alleged Cardenas committed murder by at least one of three alternate means, including:

(1) intentional murder; (2) committing an act clearly dangerous to human life with intent to cause

serious bodily injury; and (3) felony murder. See TEX.PENAL CODE ANN. §§ 19.02 (b)(1), (b)(2),

and (b)(3). Specifically, the indictment alleged in relevant part as follows:

Paragraph A

[Edgar Cardenas] did then and there intentionally or knowingly cause the death of
an individual, namely, LUIS FRANCISCO DELGADO, by stabbing [him] about
the body with a knife,

Paragraph B

[Edgar Cardenas] did then and there, with intent to cause serious bodily injury to
an individual, namely, LUIS FRANCISCO DELGADO, commit an act clearly
dangerous to human life that caused the death of said LUIS FRANCISCO
DELGADO, to wit: stabbing [him] about the body with a knife,

Paragraph C

[Edgar Cardenas] [d]id then and there intentionally or knowingly commit or attempt
to commit a felony, to wit: aggravated assault with a deadly weapon by threat, and
in the course of and in furtherance of the commission or attempt, or in immediate
flight from the commission or attempt, he committed or attempted to commit an act
clearly dangerous to human life, to wit: stabbing LUIS FRANCISCO DELGADO

5
 about the body with a knife, that caused the death of LUIS FRANCISCO
DELGADO . . . .

Each paragraph in the indictment tracked the statutory language contained in subsections of the

murder statute. See TEX.PENAL CODE ANN. § 19.02(b)(1), (b)(2), and (b)(3). The trial court’s

charge permitted the jury to find Cardenas guilty of murder if it found beyond a reasonable doubt

he committed the murder by one of three alternate means as charged in the indictment. The jury

returned a general verdict finding that Cardenas was “GUILTY of murder as charged in the

indictment.”

B. Standard of Review

A legal-sufficiency challenge requires us to review the relevant evidence in the light most

favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We consider all the

evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State,

67 S.W.3d 192, 197 (Tex.Crim.App. 2001). Similarly, we consider all the evidence that sustains

the conviction, whether submitted by the prosecution or the defense. Cook v. State, 858 S.W.2d

467, 470 (Tex.Crim.App. 1993)(en banc); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.

2000)(en banc). During our review, we do not reevaluate the weight and credibility of the evidence,

nor do we substitute our judgment for that of the jury. King, 29 S.W.3d at 562. Rather, we act only

to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246

(Tex.Crim.App. 1993)(en banc).

The legal sufficiency of evidence is measured against the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.

1997). “This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those

situations in which there is an actual failure in the State’s proof of the crime rather than a mere

6
error in the jury charge submitted.” Trevino v. State, 228 S.W.3d 729, 752–53 (Tex.App.—Corpus

Christi 2006, pet. ref’d)(citing Malik, 953 S.W.2d at 240). We then determine if any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson,

443 U.S. at 319.

A person commits murder if he intentionally or knowingly causes the death of an

individual. TEX.PENAL CODE ANN. § 19.02(b)(1). A person commits murder if he intends to cause

serious bodily injury and commits an act clearly dangerous to human life that causes the death of

an individual. TEX.PENAL CODE ANN. § 19.02(b)(2). A person commits murder if he commits or

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

the commission or attempt, or in immediate flight from the commission or attempt, he commits or

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

TEX.PENAL CODE ANN. § 19.02(b)(3).

A person acts intentionally with respect to a result of his conduct or nature of his conduct

when it is his conscious objective or desire to engage in the conduct or cause the result. TEX.PENAL

CODE ANN. § 6.03(a). A person acts knowingly with respect to a result of his conduct when he is

aware that his conduct is reasonably certain to cause the result. TEX.PENAL CODE ANN. § 6.03(b).

A person acts knowingly with respect to the nature of his conduct when he is aware of the nature

of his conduct. TEX.PENAL CODE ANN. § 6.03(b).

“Intent and knowledge are fact questions for the jury and are almost always proven through

evidence of the circumstances surrounding the crime.” Manrique v. State, 994 S.W.2d 640, 649

(Tex.Crim.App. 1999)(en banc)(Meyers, J., concurring). The jury may infer intent from any facts

that tend to prove its existence, including the acts, words, and conduct of the defendant. Id. “The

7
specific intent to kill may be inferred from the use of a deadly weapon, unless in the manner of its

use it is reasonably apparent that death or serious bodily injury could not result.” Vuong v. State,

830 S.W.2d 929, 934 (Tex.Crim.App. 1992). Intent to kill may also be inferred from the nature

and extent of the injuries inflicted on the victim. See Felder v. State, 848 S.W.2d 85, 90

(Tex.Crim.App. 1992)(intent to kill could be inferred from location and depth of stab wound). A

jury may also infer knowledge from such evidence. Manrique, 994 S.W.2d at 649.

C. Analysis

Cardenas contends no evidence supported the felony-murder allegation submitted under

Section 19.02(b)(3) because no evidence supported the underlying felony of aggravated assault

with a deadly weapon by threat. The State does not dispute Cardenas’ contention. Instead, the

State argues as long as sufficient evidence supports one of the other two alternate means alleged

in the indictment, Cardenas’ insufficiency claim fails. See Kitchens v. State, 823 S.W.2d 256, 258

(Tex.Crim.App. 1991)(in a capital murder case, “the State need prove only one of the underlying

offenses charged in the indictment in order to support the conviction[.]”).

In his reply brief, Cardenas argues Kitchens is distinguishable because it addressed only a

jury unanimity claim, which according to Cardenas is not his complaint. However, contrary to

Cardenas’ assertion, in addition to addressing a jury unanimity claim in Kitchens, the Texas Court

of Criminal Appeals also addressed an insufficiency-of-evidence claim similar to the claim

Cardenas raises here. See Kitchens, 823 S.W.2d at 259 (in appeal in which appellant was charged

with capital murder under alternate theories, “appellant alleges that the evidence is insufficient to

prove murder in the course of aggravated sexual assault as alleged in the indictment”).

When reviewing the insufficiency-of-evidence claim, the Court in Kitchens emphasized

8
the fact that the appellant had not challenged the sufficiency of the evidence supporting his

conviction under an alternative theory of guilt, and observed, “it is settled that ‘when a jury returns

a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if

the evidence is sufficient with respect to any of the acts charged.’” Kitchens, 823 S.W.2d at 259

(quoting Turner v. United States, 396 U.S. 398, 420 (1970)). The Court then overruled the

insufficiency claim “[b]ecause appellant does not contest the sufficiency of the evidence to prove

[the alternate capital murder allegation].” Id.

After Kitchens, the Court, in other contexts, has reiterated the rule that in homicide

offenses, “different legal theories involving the same victim are simply alternate methods of

committing the same offense . . . whether they are found in the same or different [statutory]

subsections, so long as the same victim is alleged for the predicate murder[.]” Gamboa v. State,

296 S.W.3d 574, 583-84 (Tex.Crim.App. 2009). And “when a general verdict is returned and the

evidence is sufficient to support a finding under any of the paragraphs submitted, the verdict will

be applied to the paragraph finding support in the facts.” Manrique, 994 S.W.2d at 642 (citing

Aguirre v. State, 732 S.W.2d 320 (Tex.Crim.App. 1987)). Here, Cardenas does not challenge the

legal sufficiency of the evidence supporting his conviction under the alternative theories alleged

in the indictment. And we conclude the evidence was legally sufficient to support Cardenas’

conviction under either of the alternate theories.

Our conclusion is based on the evidence set forth in the background section above,

including the summary of facts we highlight here. First, Cardenas admitted several times in the

presence of several individuals he used a deadly weapon, i.e, a knife, to stab the deceased. Second,

during the evening before the stabbing, on at least two occasions, Cardenas expressed a desire to

9
use the knife to address his conflict with the deceased indicating premeditation. Third, the location,

severity and depth of the fatal stab wound suggested Cardenas intended to inflict a deadly blow or

to cause serious bodily injury. Fourth, contrary to Cardenas’ assertion that he used the knife to

injure the deceased only once, the physical evidence established Delgado suffered multiple injuries

from the knife. Fifth, after the stabbing, Cardenas left the scene prior to the arrival of police or the

ambulance, disposed of the knife, and lied to medical personnel about how he sustained his own

injury and to the police about how the fight transpired. From this evidence a jury could reasonably

infer an intent to kill or that he committed an act clearly dangerous to human life with intent to

cause serious bodily injury.

In sum, because Cardenas does not challenge the legal sufficiency of the evidence proving

he caused Delgado’s death by intentionally doing so, or by committing an act clearly dangerous to

human life with intent to cause serious bodily injury, and we find there was sufficient evidence to

support his conviction under either of these theories, his legal insufficiency claim fails. We

overrule Cardenas’ first issue.

II. Unobjected-to-Jury-Charge Error

In Issues Two, Three, and Four, Cardenas contends the jury charge was defective in the

following three respects: (1) the charge omitted an instruction on the elements of aggravated

assault with a deadly weapon by threat; (2) the culpable mental state definitions of “intentionally”

and “knowingly” were not limited to the result-of-conduct element; and (3) the instruction on self-

defense allegedly shifted the burden of proof from the State to Appellant.

A. Standard of Review

Cardenas raised no objections to the court’s charge at trial. Under such circumstances, our

10
first duty is to decide whether jury-charge error exists. Ngo v. State, 175 S.W.3d 738, 743

(Tex.Crim.App. 2005). And if we find error, we can only reverse on the basis of unobjected-to

charge error if we find the error is so “egregious” and created such harm that the appellant “has

not had a fair and impartial trial.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(en

banc)(op. on reh’g); Vega v. State, 394 S.W.3d 514, 521 (Tex.Crim.App. 2013).

B. Jury-Charge Error Analysis

1. Failure to Instruct the Jury in the Abstract Portion of the Charge on
Underlying Felony in Felony Murder Allegation.

In Issue Two, Cardenas contends the trial court erred by failing to include in the abstract

portion of the charge the elements of aggravated assault with a deadly weapon by threat, see

TEX.PENAL CODE ANN. §§ 22.02(a)(2) and 22.01(a)(2), when the application paragraph on felony

murder instructed the jury it could convict under the following conditions:

If you find from the evidence beyond a reasonable doubt that on or about the 31st
day of October, 2015 in El Paso County, Texas the Defendant, EDGAR
CARDENAS, did then and there, intentionally or knowingly commit or attempt to
commit a felony, to wit: aggravated assault with a deadly weapon by threat, and in
the course of and in furtherance of the commission or attempt, or in immediate
flight from the commission or attempt, he committed or attempted to commit an act
clearly dangerous to human life, to wit: stabbing LUIS FRANCISCO DELGADO
about the body with a knife, that caused the death of LUIS FRANCISCO
DELGADO; and the said defendant used and exhibited a deadly weapon, to wit: a
knife during the commission of or immediate flight from said offense then you will
find the Defendant GUILTY OF Murder as charged in the Indictment. [Emphasis
added].

The State does not dispute the trial court wholly failed to instruct on the elements of aggravated

assault by threat and it concedes this omission was error, but argues the error did not result in

egregious harm to Cardenas. Accordingly, we assume without deciding the trial court erred in

failing to charge the jury on aggravated assault with a deadly weapon by threat in the abstract

11
portion of the trial court’s charge.

2. Failure to Limit “Intentionally” and “Knowingly” Definitions to Result-of-
Conduct Element

In Issue Three, Cardenas contends the trial court erred when it failed to limit the conduct

element in its definitions of “intentionally” and “knowingly” to only “result of conduct.” See Price

v. State, 457 S.W.3d 437, 441 (Tex.Crim.App. 2015)(“A trial court errs when it fails to limit the

language in regard to the applicable culpable mental states to the appropriate conduct element.”);

Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App. 1994).

Section 6.03 of the Texas Penal Code delineates three “conduct elements” which may be

involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the

circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App.

1989). Specifically, “intentionally” and “knowingly” are defined by Section 6.03 as follows:

(a) 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.

(b) 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. [Emphasis added].

TEX.PENAL CODE ANN. § 6.03(a)-(b).

The jury charge in this case defined “intentionally” and “knowingly” in the abstract portion

of the charge as follows:

A person acts intentionally, or with intent, with respect to the nature of his conduct
or to the 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

12
 conduct or to circumstances surrounding his conduct when he is aware of the nature
of his conduct or that the circumstances exist. [Emphasis added].

Thus, the jury charge’s definition of “intentionally” contained the result of conduct element, but it

also included reference to the nature of conduct element. The “knowingly” definition, however,

omitted entirely the result of conduct element and contained only the elements applicable to nature

of conduct and superfluous language related to circumstances surrounding conduct offenses.

The State concedes the definitions of “intentionally” and “knowingly” applicable to both

intentional murder and committing an act clearly dangerous to human life with intent to cause

serious bodily injury should have focused only on the result of Cardenas’ conduct. See Cook v.

State, 884 S.W.2d at 491 (“Intentional murder . . . is a ‘result of conduct’ offense, therefore, the

trial judge erred in not limiting the culpable mental states to the result of appellant’s conduct.”);

see also Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex.Crim.App. 1983)(“We also note that murder

under Section 19.02(b)(2) . . . is a ‘result’ type of a crime.”). However, the State also contends the

trial court correctly included the nature of conduct element in both definitions because the mens-

rea applicable to the felony-murder allegation was controlled by the underlying felony which, in

this case, was aggravated assault by threat, which is a nature of conduct offense. Lomax v. State,

233 S.W.3d 302 (Tex.Crim.App. 2007). We agree.

In Lomax, the Texas Court of Criminal Appeals expressly observed that the felony-murder

statute itself “plainly dispenses with a culpable mental state,” Lomax, 233 S.W.3d at 305, and

overruled prior precedent which held “a culpable mental state is required for ‘the act of murder’

in a felony-murder prosecution and that the mental state of the underlying felony supplies this

culpable mental state.” Id. at 307 (overruling Rodriguez v. State, 548 S.W.2d 26, 28-29

(Tex.Crim.App. 1977)). It did so because the appellant there argued that strict liability offenses,

13
like DWI, which omit proof of a culpable mental state, could not operate as the predicate felony

in a felony-murder prosecution in light of the holding in Rodriguez.

The Court disagreed with Lomax’s argument and explained the Legislature’s decision to

dispense with a culpable mental state in the felony-murder statute was “consistent with the

historical purpose of the felony-murder rule, the very essence of which is to make a person guilty

of an ‘unintentional’ murder when he causes another person’s death during the commission of

some type of a felony.” Id. at 305. The Court held as long as the underlying offense was not

“manslaughter” any felony offense will do, even if it lacked a mens-rea element. Accordingly,

whether a felony-murder allegation requires proof of a culpable mental state depends on whether

the elements of the underlying felony include one. And, if the elements of the underlying felony

include a culpable mental state, the relevant element for purposes of the Section 6.03 definitions

is the one applicable to the mens-rea element in the underlying felony, if any. Here, the underlying

felony in the felony-murder allegation was aggravated assault by threat, which contains a mens

rea element focused on the nature of the accused’s conduct. See Garfias v. State, 424 S.W.3d 54,

60 (Tex.Crim.App. 2014)(“[a]s we have noted in the past, an assaultive offense by threat is a

conduct-oriented offense”)(citing Landrian v. State, 268 S.W.3d 532, 540 (Tex.Crim.App.

2008)[Emphasis added].

While we agree with the State the court’s charge correctly included the nature of conduct

element in the definitions of “intentionally” and “knowingly,” the State does not address the other

errors in the “knowingly” definition, namely, the inclusion of the third conduct element,

circumstances surrounding the conduct, and the omission of the result of conduct element.

Therefore, we find the jury was erroneously charged on the definition of “knowingly” for these

14
reasons. See Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App. 1995)(observing that under

reasoning in Cook, it would be error when defining culpable mental state definitions to include all

three conduct elements when only two were applicable).

3. Self-Defense Instruction

In Issue Four, Cardenas alleges the trial court shifted the burden of proof from the State to

the defendant when it instructed the jury on self-defense. The jury was instructed on self-defense

as follows:

If you all agree that the state has proved, beyond a reasonable doubt, each of the
elements, you must next consider whether the defendant’s use of force was made
in self-defense.

You have heard evidence that, when the defendant, Edgar Cardenas, stabbed Luis
Francisco Delgado about the body with the knife, he believed his use of deadly
force was necessary to defend himself against Luis Francisco Delgado’s use of
unlawful deadly force. A person’s use of deadly force against another that would
otherwise constitute the crime of murder is not a criminal offense if the person
reasonably believed the force used was immediately necessary to protect the person
against the other’s use or attempted use of unlawful deadly force.

Self-defense does not cover conduct in response to verbal provocation alone. The
defendant must have reasonably believed the other had done more than verbally
provoke the defendant. The defendant is not required to prove self-defense. Rather
the state must prove beyond a reasonable doubt that self-defense does not apply to
the defendant’s conduct.

The Defendant’s belief that the use of deadly force was immediately necessary is
presumed to be reasonable if the Defendant: knew or had reason to believe that
person against whom deadly force was used was committing or attempting to use
deadly force and did not provoke the person or persons against whom the deadly
force was used; and was not otherwise engaged in criminal activity, other than a
Class C misdemeanor that is a violation of law or ordinance regulating traffic at the
time the force was used.

Therefore, if you find beyond a reasonable doubt that the defendant, EDGAR
CARDENAS, did then and there intentionally or knowingly cause the death of
LUIS FRANCISCO DELGADO, but you further find, or have a reasonable doubt
thereof, that EDGAR CARDENAS was justified in using deadly force against

15
 LUIS FRANCISCO DELGADO when and to the degree he reasonably believed
the force was immediately necessary to protect himself against LUIS FRANCISCO
DELGADO’S use or attempted use of unlawful deadly force, you will find the
defendant NOT GUILTY. (VERDICT FORM A-2).

If you do not so find, or have a reasonable doubt thereof, you will next consider
whether the defendant is guilty of the lesser-included offense of Manslaughter.

Cardenas takes issue with the last sentence in the court’s charge on self-defense which

instructed, “If you do not so find, or have a reasonable doubt thereof, you will next consider

whether the defendant is guilty of the lesser-included offense of Manslaughter” because it

allegedly “appears to tell the jurors that if they have a reasonable doubt that Appellant acted in

self-defense, they should reject that proposition.”

In support of his argument, Cardenas cites to a single case, Alonzo v. State, 353 S.W.3d

778, 781 (Tex.Crim.App. 2011), for the general proposition that when charging on self-defense,

the trial court should instruct the jury to acquit the defendant if “the State ha[s] not disproved self-

defense beyond a reasonable doubt.” Id. Cardenas concedes, as he must, that the court’s charge

expressly instructed the jury that the “defendant is not required to prove self-defense” and that the

“the state must prove beyond a reasonable doubt that self-defense does not apply to the defendant’s

conduct.” Moreover, the court’s self-defense charge clearly instructed the jury that if it believed

Cardenas “was justified in using deadly force . . . when and to the degree he reasonably believed

the force was immediately necessary to protect himself . . . you will find the defendant NOT

GUILTY.” While the additional language about which Cardenas complains was not a model of

clarity, we find it did not shift the burden of proof from the State to appellant to demonstrate

beyond a reasonable doubt that his use of deadly force was justified. Accordingly, we find no error

in this regard. We overrule Issue Four.

16
 C. Egregious Harm Analysis

Having found error in the charge as to Issues Two and Three, and in light of Cardenas’

failure to object to the error in the charge, we turn to the question of whether the record establishes

Cardenas suffered egregious harm as a result of these trial court errors. Egregious harm resulting

from unobjected-to charge error exists if the error goes to the very basis of the case, deprives the

accused of a valuable right, vitally affects his defensive theory, and thereby effectively denies the

accused a fair and impartial trial. Almanza, 686 S.W.2d at 172. In examining the record for

egregious harm, we consider: (1) the entire jury charge; (2) the state of the evidence; (3) the closing

arguments of the parties; and (4) any other relevant information in the record. Arteaga v. State,

521 S.W.3d 329, 338 (Tex.Crim.App. 2017).

(1) Failure to charge on underlying felony in felony murder in abstract portion of
charge

In this case, we find no egregious harm flowed from the trial court’s failure to instruct the

jury on the underlying felony, i.e., aggravated assault by threat, when charging the jury in the

abstract portion of the charge on felony murder. Our conclusion is based on two reasons. First, in

addition to felony murder, the application section of the charge authorized the jury to convict

Cardenas if it found beyond a reasonable doubt he committed murder by two other alternate means,

intentional murder and by committing an act clearly dangerous to human life with intent to cause

serious bodily injury. As we explained above, we find the evidence legally sufficient to support

Cardenas’ conviction under either of these alternative means. Second, the record shows defense

counsel argued in closing there was no evidence tending to show Cardenas’ guilt by felony murder,

and the prosecutor did not strongly rebut defense counsel’s argument with respect to felony

murder, opting instead to focus on Cardenas’ intent to “murder” and to cause serious bodily injury

17
while committing an act clearly dangerous to human life.

As there was little to no evidence tending to show Cardenas’ guilt by felony murder, the

jury almost certainly did not rely upon the instruction on felony murder in the application section

of the court’s charge. Under these circumstances, any error by the trial court when charging on the

felony murder allegation in the abstract section of the court’s charge is harmless. See e.g.

Washington v. State, 417 S.W.3d 713, 724 (Tex.Crim.App. 2013)(finding submission of charge on

law of parties was harmless because “if there was ‘no evidence tending to show appellant’s guilt

as a party, the jury almost certainly did not rely upon the parties instruction in arriving at its verdict,

but rather based the verdict on the evidence tending to show appellant’s guilt as a principal actor’”).

We overrule Issue Two.

(2) Failure to correctly define “knowingly” in abstract portion of charge

The murder theories requiring proof of a “knowingly” culpable mental state were

intentional murder brought under Section 19.02(b)(1) and felony murder brought under Section

19.02(b)(3). Since we have already determined the jury almost certainly did not rely on the

instruction on felony murder in the application section of the court’s charge to convict Cardenas,

our egregious harm analysis focuses on the use of “knowingly” with respect to intentional murder

under Section 19.02(b)(1).

We first consider whether including the superfluous “circumstances surrounding” conduct

element in the knowingly definition resulted in egregious harm. “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 v. State, 897 S.W.2d 285, 296 (Tex.Crim.App. 1994)(quoting

18
Cook, 884 S.W.2d at 492, fn. 6). The application paragraph on intentional murder correctly

instructed the jury as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the
31st day of October, 2015 in El Paso County, Texas the Defendant EDGAR
CARDENAS, did then and there intentionally or knowingly cause the death of an
individual, namely LUIS FRANCISCO DELGADO, by stabbing LUIS
FRANCISCO DELGADO about the body with a knife; and the said defendant used
and exhibited a deadly weapon, to wit: a knife during the commission of or
immediate flight from said offense.

. . .

[T]hen you will find the Defendant GUILTY of Murder as charged in the
Indictment. [Emphasis added].

Thus, in the application paragraph both the intentional and knowing elements clearly modified

“cause the death,” which would have instructed the jury to focus on whether Cardenas intended to

cause the death or knew his conduct would cause the death, both of which are result oriented

inquiries. Such language when viewed in factual context within the application paragraph is

sufficient to establish Cardenas suffered no egregious harm by the inclusion of the superfluous

“circumstances surrounding” conduct element in the knowingly definition in the abstract portion

of the court’s charge. See Hughes, 897 S.W.2d at 296-97 (finding no harm, much less egregious

harm, from inclusion of superfluous conduct element in mens rea definition when application

paragraph pointed the jury to appropriate conduct at issue); Medina v. State, 7 S.W.3d 633, 640

(Tex.Crim.App. 1999)(en banc)(“Where the application paragraph correctly instructs the jury, an

error in the abstract instruction is not egregious.”).

Next, we consider whether omission of the result of conduct element in the knowingly

definition in the abstract portion of the charge amounts to egregious harm in this case. “[W]here

the application paragraph of the charge correctly instructs the jury on the law applicable to the

19
case, this mitigates against a finding that any error in the abstract portion of the charge was

egregious.” Kuhn v. State, 393 S.W.3d 519, 529 (Tex.App.—Austin 2013, pet. ref’d). Because we

find the application paragraph under Section 19.02(b)(1) correctly instructed the jury to focus on

whether Cardenas knew his conduct would result in Delgado’s death, we find it was adequate to

prevent egregious harm.

In addition, even if Cardenas could somehow show he suffered egregious harm by the

submission of an erroneous definition of knowingly in the abstract portion of the court’s charge

with respect to intentional murder under Section 19.02(b)(1) or felony murder under Section

19.02(b)(3), we find the jury could have found him guilty under the alternate murder theory

submitted under Section 19.02(b)(2), which did not reference the erroneous “knowing” definition.

With respect to Section 19.02(b)(2), the jury was correctly authorized to convict Cardenas of

murder if it found beyond a reasonable doubt that he

[W]ith intent to cause serious bodily injury to an individual, namely, LUIS
FRANCISCO DELGADO, commit[ed] an act clearly dangerous to human life that
caused the death of the said LUIS FRANCISCO DELGADO, to wit: stabbing LUIS
FRANCISCO DELGADO about the body with a knife . . . . [Emphasis added].

Because this application paragraph was correct in that the mens rea element of “intent” correctly

modified “to cause serious bodily injury,” and the “intent” definition in the abstract portion of the

charge included the result of conduct element, i.e, “when it is his conscious objective or desire to

. . . cause the result,” and there was sufficient evidence to support Cardenas’ conviction under

Section 19.02(b)(2), we find Cardenas did not suffer egregious harm from the erroneous definition

of “knowingly” in the abstract portion of the charge that was applicable only to the other theories

submitted under Sections 19.02(b)(1) or 19.02(b)(3). Medina, 7 S.W.3d at 640 (finding no

egregious harm from jury charge error involving erroneous definition of “knowingly” where there

20
was “at least one theory of the offense upon which appellant’s conviction may stand”). We overrule

Issue Three.

CERTIFICATION OF RIGHT TO APPEAL

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

certification does not bear Appellant’s signature indicating that he has been 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 that neither

Appellant’s attorney nor the trial court has corrected the defective certification.

To remedy this defect, the Court ORDERS Appellant’s attorney, pursuant to Rule 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. The Court further ORDERS Appellant’s attorney to comply

with all the requirements of Rule 48.4. TEX.R.APP.P. 48.4.

CONCLUSION

For these reasons, we affirm the trial court’s judgment.

August 17, 2021
YVONNE T. RODRIGUEZ, Chief Justice

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

(Do Not Publish)

21