dissenting.
I agree with the majority opinion’s finding of jury charge error in this case, but disagree with its finding of egregious harm1 from that error.
An important factor affecting the harmfulness of error in a jury charge is the likelihood that the jury’s verdict was actually based upon an alternative available theory of culpability on which the jury was correctly instructed and the evidence is sufficient to prove guilt. See Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App.1999).
In this case, the jury concluded under the evidence that a murder had taken place. The only two possible perpetrators of the murder were appellant and his co-defendant (and brother), Jermarxian. However, the jury found appellant to be the more culpable of the two by finding him guilty of murder, but finding Jermar-xian guilty of only manslaughter.2 In addition, the jury necessarily concluded under the charge that neither defendant was acting in self-defense and that it had no reasonable doubt whether either was doing so (otherwise, it would have been bound to acquit either or both).
The majority’s conclusion that, “as the charge was presented, appellant could be found guilty of murder based solely on his brother’s conduct” is not correct. Although the initial application paragraphs in appellant’s charge on murder contained language supporting that conclusion, the final such paragraph qualified those preceding paragraphs by stating:
You are further instructed that before a person can be guilty of murder, he must have intentionally or knowingly caused *87the death, or he must have intended to cause serious bodily injury and have intentionally or knowingly committed an act clearly dangerous to human life that caused the death of the deceased. Unless you find beyond a reasonable doubt that the defendant is guilty of murder, or if you have a reasonable doubt thereof, you will acquit the defendant of murder and next consider whether the defendant is guilty of the offense of manslaughter.
(emphasis added). Assuming that the jury followed the instruction contained in the first sentence above, as the majority correctly recognizes that we must,3 then the jury could have found appellant guilty of murder only if it found that he was the principal actor rather than a mere party.4
The majority correctly acknowledges that the evidence was legally and factually sufficient to prove that appellant was guilty as the principal actor in that: (1) appellant, after hearing music that was derogatory to his own, argued and exchanged heated words with the complainant and displayed a pistol to the complainant before the chase and shooting occurred; (2) as the driver of the Expedition, appellant pursued the Caprice after it exited the 610 freeway; (3) numerous bullet holes were found on the driver and passenger sides of the Caprice, each entering from the rear direction; (4) none of the occupants of the Caprice could identify who fired any of the shots from the Expedition, including the fatal shot; and (5) the Expedition was never discovered and thus never inspected or tested by the police.
Similarly, during closing argument, no one mentioned that the jury could convict appellant based solely upon the conduct of Jermarxian. It was, thus, not a theory on which the State relied in the slightest respect. Instead, the prosecutor argued that “[the defendants] are both equally guilty” and that “Jermarxian may have fired the killing bullet, but [appellant] here certainly did his part.” She added that appellant had “chased them down” and “tried to kill them, tried to shoot them, tried to commit serious bodily injury.” Because the theoretical possibility that the jury could have found appellant guilty based on the erroneous portion of the charge can therefore be supported only by sheer speculation and is contradicted by every aspect of the case that supports any inference on this issue, I would not reverse the conviction based on a finding of egregious harm in the charge.
. Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defense theory. Stuhlerv. State, 218 S.W.3d 706, 719 (Tex.Crim.App.2007). To determine whether jury charge error is egregious, the reviewing court should consider: (1) the entirety of the jury charge itself; (2) the evidence; (3) the arguments of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Id.
. The majority cites several federal and Texas appeals court cases for the proposition that we cannot speculate that the jury considered and applied the law consistently to both co-defendants. See Odom v. United States, 377 F.2d 853 (5th Cir.1967); Ruiz v. State, 641 S.W.2d 364 (Tex.App.-Corpus Christi 1982, no pet.); see also United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); Moranza v. State, 913 S.W.2d 718 (Tex.App.-Waco 1995, pet. refd). However, none of these opinions except Moranza concern jury charge error or harm, but only whether a defendant's conviction should be reversed for the reason that verdicts were inconsistent with one another in some respect. If anything, Moranza indicates that inconsistent verdicts are relevant to evaluating egregious harm by holding that they did not necessarily reflect harm at all in that case. See 913 S.W.2d at 726. In this case, there is no contention or indication in the record that the jury’s verdicts were inconsistent. Instead, the controlling issue is simply whether the charge error caused appellant egregious harm, considering every relevant aspect of the case, which necessarily includes how the jury decided the case.
. See, e.g., Miles v. State, 204 S.W.3d 822, 827-28 (Tex.Crim.App.2006).
. The majority opinion concludes that this paragraph is not among those that apply the law to the facts, even though it ends with the standard “unless you find ... you will acquit” sentence. The majority further concludes that this paragraph merely instructs the jury on the requisite mental state, even though that element has already been covered and this paragraph states, in part, "before a person can be found guilty of murder, he must have ... caused the death, or ... committed an act ... that caused the death....” The majority also concludes that this paragraph could have pertained to Jermarxian rather than appellant even though it refers only to “defendant” and the preceding application paragraph distinguishes clearly between appellant, as defendant, and Jermarxian, and does not refer to Jermarxian as defendant. Although this paragraph does not cure the error, it combines with the other considerations discussed to demonstrate that the harm from the error is not egregious.