Alexander Holland v. the State of Texas ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ALEXANDER HOLLAND, § No.08-19-00249-CR
Appellant, § Appeal from the
v. § 299th District Court
THE STATE OF TEXAS, § of Travis County, Texas
Appellee. § (TC# D-1-DC-19-904012)
OPINION
Appellant, Alexander Holland, appeals from his conviction for murder and from his
sentence of 55 years confinement in the Institutional Division of the Texas Department of Criminal
Justice. See TEX.PENAL CODE ANN. § 19.02; Id. § 12.32. In a single issue, he argues that the trial
court erred by including an instruction on the law of parties in the charge of the court, thereby
reducing the burden of proof on the State. We find no merit to Holland’s issue and affirm the
judgment. 1
BACKGROUND
In January of 2017, Jason Baros and his girlfriend Luz Angel Munoz were living in a
1
As this case was transferred from our sister court in the Third Court of Appeals of Texas, we decide it in accordance
with the precedent of that court. TEX.R.APP.P. 41.3.
“homeless camp” behind a closed Jack in the Box restaurant on East Riverside in Austin, Texas. 2
Baros met Holland through his girlfriend in October of 2016 and saw him regularly because Munoz
worked as a “chauffeur” for Holland. In the days leading up to the murder of Munoz on January 18,
she and Holland had multiple arguments over a cell phone Holland had given her to use. Two days
before Munoz was beaten, Holland came to the campsite she shared with Baros looking for the
phone. Munoz was not there but Holland told Baros he needed the cell phone back. Baros testified
that at the time Holland “didn’t seem very mad.” The next day, Holland returned to the campsite
to find Munoz and Baros laying down because Munoz was sick. He began yelling at Munoz that
she needed to return the cell phone to him. Munoz yelled back that she had given the phone to a
person named JG. Baros described Holland as very angry at this point. Holland picked up a drawer
that was on the street and threw it at Munoz’s head, but Baros was able to block it. 3 Baros jumped
up as Holland pulled a knife. Baros grabbed a nearby wine bottle. Baros detailed the resulting
stand-off between the two. Holland said that he wanted his cell phone back, that he was not playing
anymore and that he was “going to beat the shit out of [Munoz].” Holland then left.
The next morning, Baros encountered Holland walking on the street a few blocks from the
campsite. Baros testified that Holland was “calm” during their conversation and that Holland
expressed to him that “[e]verything’s okay.” He also told Baros that he just wanted his cell phone
back and that he had talked to JG who told him that he did not have Holland’s cell phone. The two
then parted ways. Around 10:00 p.m. that same night, Holland arrived at Baros and Munoz’s
2
A Marisco’s Grill also occupied the location before it was abandoned and became an area used by the homeless.
Multiple witnesses referred to the location by that reference as well.
3
Furniture had been removed from a nearby building that was being remodeled and placed on the street near the
homeless campsite.
2
campsite in an SUV. Holland exited the vehicle from the passenger side, came to where the two
were laying on their bed and began yelling at Munoz that he was “going to kick her ass because
she didn’t return his cell phone.” Baros characterized Holland as “more angry than I had ever seen
him before.”
Munoz stood up as she and Holland argued and Baros recounted how he positioned himself
between the two because he was afraid Holland would attack Munoz. Baros put his hands behind
his back and told Holland to hit him and not Munoz. Holland was the first to take the argument to
a physical fight by pushing Baros. The driver of the SUV then asked Holland if he needed the
pistol to which he replied “No.” The driver got out of the vehicle and ran towards Baros to join
Holland in attacking him. While the driver grabbed Baros, Holland hit him. Holland then turned
his anger on Munoz and Baros continued fighting the driver. Baros could only hear what was
happening between Holland and Munoz, so at a point, he left the driver on the ground to retrieve
Munoz in hopes of walking away from the situation. As they were walking, Holland joined them
and punched Baros in the face. Baros was dazed by the punch when the driver ran at him again
and the two began to wrestle on the ground. Baros could only see Munoz and Holland out of the
corner of his eye during the struggle but did see Holland punch Munoz in the face causing her to
fall to the ground. Holland then kicked Munoz in the face and stomped on her head. Each time
Munoz would try to rise, Holland would stomp on her head causing her head to impact the
concrete. Baros estimated this happened four times. When Baros saw this happening, he
disengaged from the driver and went to help Munoz. When he did, the driver came to where Munoz
was and kicked her. Holland and the driver then ran to the SUV where Holland got in the driver’s
seat and the other man got in the passenger’s seat. When Baros got to Munoz, she was non-
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responsive and had blood coming from her nose and mouth. Baros held Munoz so they were on
their knees as the SUV was driven towards them. When the SUV hit the two of them, Munoz’s
head snapped back and Baros was struck in the shoulder and face. After striking Baros and Munoz,
Holland had to stop the vehicle and back up to be able to take the exit to the street. Baros yelled
for help as a car pulled up and the police arrived quickly. Ambulances took Munoz and Baros to
the hospital. 4
About 9:00 p.m. on this same night, Desiree Otero was driving home from work. She lived
right off Riverside. As she was driving and talking to a friend on the phone, she observed two
people beating up another person. She told her friend she thought a homeless person was being
attacked. Otero testified, that although it was nighttime, she could see because she turned on her
bright lights and the area was well-lit due to the traffic and the lights of the surrounding businesses.
Otero described “that two people were initially holding up one person and kind of taking turns
taking blows, like hits at the other person.” She described how the person being hit was eventually
dropped to the ground and how the other two started kicking and stomping on the person on the
ground in the area of that person’s head. When asked to rank the force of the stomps and kicks on
a scale of one to ten with ten “being as much force as you can imagine someone applying,” she
answered it was “[d]efinitely a ten.” Otero explained she started flashing her bright lights and
honking her horn to try to stop the attack. Her intent was to turn into the area, but she could not
enter at the point she tried. Otero had to circle back around, yet she continued to honk and flash
her lights. As she pulled into the area where the assault was occurring, the two individuals were
still kicking and stomping on the person on the ground, but when she got closer, they took off
4
Upon examination and a CAT scan at the hospital, it was revealed that Baros suffered several facial fractures.
4
running towards a vehicle. She remembered one of the individuals had on gray and orange
clothing. Otero saw the two individuals leaving in the vehicle. She could then tell they were two
African-American males and that the driver was wearing an orange and gray hoodie. Otero was
able to identify Holland in court as the driver of the vehicle she saw in the parking lot that night.
After Otero entered the parking lot, a person came up and started beating on the side of her
car and window. He asked her to call for help because his “girlfriend had just [been] jumped . . . .”
At that same time, Otero saw a police officer driving by, so she flashed her lights and honked her
horn to get his attention. When Otero could tell the officer was coming to the lot, she got out of
her car and used the flashlight on her phone to locate the injured person. She found Munoz laying
on the ground in a fetal position covered in blood. Otero testified that “there was blood all over
her head, her nose. She was just lying in blood.”
When the paramedics arrived on the scene, they found Munoz on the ground in what was
described as “decerebrate posturing.” It was explained that this occurs when an individual has such
severe brain injury that the “likelihood of survival is very, very low.” Dr. Vincent Wang, a
neurosurgeon, performed brain surgery on Munoz beginning approximately thirty minutes after
her arrival at the hospital. After performing the operation, Dr. Wang opined that Munoz’s chance
of survival was “virtually zero” due to the blunt force trauma she had endured. Dr. Wang testified
that the force necessary to cause the type of brain injury Munoz sustained would have to be “high-
energy” and he would not expect to see this from simply falling down. Although he acknowledged
he did not know how many impacts there were, he did believe the brain trauma could have been
caused by kicking her in the head, stomping on her head or both. Munoz died on January 20.
Dr. Vickie Willoughby, a Deputy Medical Examiner for the Travis County Medical Examiner’s
5
Office expressed a similar opinion that, based on the findings in the autopsy, multiple impacts of
blunt force trauma caused the brain injury that resulted in the death of Munoz.
Holland was arrested and being transported to the police station at about the same time as
Munoz passed away. When he arrived at the station, officers observed a stain on Holland’s right
shoe that they believed could possibly be blood. Holland’s clothes and shoes were collected as
evidence. The items were submitted to a laboratory where a forensic scientist performed testing
for DNA. The lab was furnished a blood standard from Munoz and buccal swabs containing DNA
from Holland. The DNA profile showed the blood stain on the right shoe contained a mixture of
at least two individuals with a major female DNA profile which matched the profile of Munoz. 5
DISCUSSION
In his sole issue, Holland contends the trial erred by including an instruction on the law of
parties in the court’s charge which he argues reduces the State’s burden of proof. During the charge
conference at the end of the guilt-innocence phase of trial, Holland’s counsel addressed the
disputed instruction by stating “I would object to the inclusion of the law of parties in this case
and the language specifically used on page 2 of the charge.” Counsel stated no basis in law for his
objection — indeed he never mentioned that the inclusion of the instruction reduced the State’s
burden of proof. After a final review of the court’s charge, Holland’s counsel “reurge[d] [his]
objection to the inclusion of the law of parties in the charge.” He then simply read into the record
the following instructions which appeared on page two of the charge:
A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, or by the conduct of another for which he is
5
The medical and scientific evidence is lengthy and detailed. Given the single issue raised by Holland, we will
dispense with further discussion of those facts which are not necessary to resolve the issue raised.
6
criminally responsible, or by both. Each party to an offense may be charged with
the commission of the offense.
A person is criminally responsible for an offense committed by the conduct
of another if acting with intent to promote or assist the commission of the offense,
he solicits, encourages, directs, aids, or attempts to aid the other person to commit
the offense.
See TEX.PENAL CODE ANN. § 7.02(a)(2). Once again, he simply objected to inclusion of the
language in the charge and never mentioned his argument on appeal.
To preserve error regarding a jury charge, an objection must be sufficiently specific to point
out the errors complained of. Chapman v. State, 921 S.W.2d 694, 695 (Tex.Crim.App. 1996);
Harkins v. State, 268 S.W.3d 740, 746 (Tex.App.—Fort Worth 2008, pet. ref’d) see also
TEX.CODE CRIM.PROC.ANN. art. 36.14 (“Before said charge is read to the jury, the defendant or
his counsel shall have a reasonable time to examine the same and he shall present his objections
thereto in writing, distinctly specifying each ground of objection.” [Emphasis added]). “To
constitute a valid objection to jury instructions, the objection must be specific and clear enough to
apprise the trial court of the nature of the objection — this specificity requirement is to enable the
trial court ‘to know in what respect the defendant regards the charge as defective and to afford him
an opportunity to correct it before reading the charge to the jury.’” Harkins, 268 S.W.3d at 747(quoting Pennington v. State, 697 S.W.2d 387, 390 (Tex.Crim.App. 1985)). In this case, Holland
never raised with the trial court the issue he now argues on appeal. He never advised the trial court
of the reasoning behind the general objection made at trial. Because Holland’s objection does not
comport with his complaint on appeal, we treat this issue as one of unobjected-to charge error.
We must review “all alleged jury-charge error . . . regardless of preservation in the trial
court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012). In reviewing a jury charge,
we first determine whether error occurred; if not, our analysis ends. Id. If error occurred, whether
7
it was preserved determines the degree of harm required for reversal. Id. Unpreserved charge error
warrants reversal only when the error resulted in egregious harm. Nava v. State, 415 S.W.3d 289,
298 (Tex.Crim.App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(op. on
reh’g); see TEX.CODE CRIM.PROC.ANN. art. 36.19.
Before reaching the question of harm, we must first determine whether there was error in
the charge. The jury charge authorized conviction of Holland either as a primary actor or as a party
to murder. Holland recognizes that “a review of the evidence shows that the alleged conduct of
Appellant was sufficient to sustain his conviction for the offense of murder as alleged in the
indictment without consideration of the actions of a non-defendant actor who was present with
Appellant.” 6 Holland then argues that the test set forth in McCuin v. State, 505 S.W.2d 827(Tex.Crim.App. 1974) should apply:
Where the evidence introduced upon the trial of the cause shows the active
participation in the offense by two or more persons, the trial court should first
remove from consideration the acts and conduct of the non-defendant actor. Then,
if the evidence of the conduct of the defendant then on trial would be sufficient, in
and of itself, to sustain the conviction, no submission of the law of [parties] is
required.
Id. at 830. The State responds that these guidelines from McCuin should be “disavowed because
the Court’s statements were dicta.”
Holland contends that a law-of-parties instruction is erroneous if there is sufficient
evidence to convict the accused as a principal actor. “But submission of one theory does not
prohibit the submission of the other.” Ryser v. State, 453 S.W.3d 17, 28 (Tex.App.—Houston [1st
Dist.] 2014, pet. ref’d); see Goff v. State, 931 S.W.2d 537, 545 (Tex.Crim.App. 1996). Even if the
6
Thus, Holland has not challenged the sufficiency of the evidence supporting his conviction for murder. See Walter
v. State, 588 S.W.3d 682, 688 (Tex.App.—Eastland 2019, pet. ref’d).
8
theory that the accused operated as the principal actor is the “theory best supported by the
evidence,” if there is evidence to support the inference that the accused acted as a party to the
offense, the trial court does not err in giving a parties instruction. Id. at 545.
If the evidence introduced upon the trial of the case simply raises an issue, that the conduct
of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, then the
State’s case rests upon the law of parties and is dependent, at least in part, upon the conduct of
another. Hill v. State, No. 03-99-00151-CR, 1999 WL 1023729, at*2 (Tex.App.—Austin Nov. 12,
1999, no pet.)(not designated for publication). In such a case the law of parties may be submitted.
See Gilmore v. State, 666 S.W.2d 136, 156 (Tex.App.—Amarillo 1983, pet. ref’d). “When the
evidence is sufficient to support both primary and party theories of liability, the trial court does
not err in submitting an instruction on the law of parties.” Ransom v. State, 920 S.W.2d 288, 302
(Tex.Crim.App. 1996)(op. on reh’g); Bell v. State, No. 03-00-00243-CR, 2001 WL 1510836, at *6
(Tex.App.—Austin Nov. 29, 2001, pet. ref’d)(not designated for publication); see also Tucker v.
State, 771 S.W.2d 523, 529 (Tex.Crim.App. 1988). Evidence is sufficient to prove the defendant
on trial as a party to an offense when the evidence shows that at the time of the offense, the parties
were acting together, each doing some part of the common purpose. Cordova v. State, 698 S.W.2d
107, 111(Tex.Crim.App. 1985), cert. denied, 476 U.S. 1101 (1986).
The evidence indicated there were two men involved in the assault on Munoz. They acted
together in many of the activities connected to the murder. The understanding of each party was
clear when the party originally driving the SUV to the campsite asked Holland if he wanted the
pistol. Otero testified that two people were holding up a third person and taking turns at
administering blows to that person. She testified that both individuals dropped the victim of the
9
assault and then kicked and stomped the head of that person. Otero later observed that victim to
be Munoz. Baros testified that the person with Holland kept fighting with him so that he could not
assist Munoz. He also testified that the original driver was the last to kick Munoz before the
attackers ran for their vehicle. Both the neurosurgeon and the deputy medical examiner testified
that Munoz died as a result of multiple blunt force injuries to her brain. Neither expert testified
that one blow was sufficient to have caused the death of Munoz or identified which blow actually
caused her death. We believe this evidence sufficient to raise the issue that Holland may not have
acted alone in this murder but instead may have acted together with the individual who drove the
SUV to the campsite. The trial court did not err in giving a parties instruction. McCuin, 505 S.W.2d
at 830. 7
Even if we were to assume error in the jury charge by the inclusion of the instruction on
the law of parties, the error would be harmless. Holland conceded on appeal that his “conduct was
sufficient in and of itself to sustain the jury’s finding of guilt . . . .” If, as Holland claims, the
evidence clearly supports his guilt as a primary actor, error in charging on the law of parties is
harmless. Cathey v. State, 992 S.W.2d 460, 466 (Tex.Crim.App. 1999); Black v. State, 723 S.W.2d
674, 675 (Tex.Crim.App. 1986); Govan v. State, 682 S.W.2d 567, 570-71 (Tex.Crim.App. 1985).
Having failed to show harm, Holland also has failed to show egregious harm. 8 We overrule
Holland’s sole issue.
CONCLUSION
7
We decline the invitation of the State to “disavow” higher court caselaw.
8
Even if Holland had preserved the alleged error to the jury charge by proper objection, the outcome would be the
same. “Even where proper objection is made at trial, we have held that where, as in the instant case, the evidence
clearly supports a defendant’s guilt as the primary actor, error in charging on the law of parties was harmless.” Cathey,
992 S.W.2d at 466.
10
Having overruled Holland’s sole issue, we affirm the trial court’s judgment.
June 11, 2021
LEE GABRIEL, Senior Justice (Ret.)
Before Palafox, J., Alley, J. and Gabriel, Senior Justice (Ret.)
Gabriel, Senior Justice (Ret.)(Sitting by Assignment)
(Do Not Publish)
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