Marcario Hinojos Estorga v. the State of Texas ( 2023 )

Opinion filed February 9, 2023
In The
Eleventh Court of Appeals
__________
No. 11-21-00134-CR
__________
MARCARIO HINOJOS ESTORGA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-20-1230-CR
MEMORANDUM OPINION
Marcario Hinojos Estorga, Appellant, appeals his conviction for the third-
degree felony offense of injury to a child, elderly individual, or disabled individual.
See TEX. PENAL CODE ANN. § 22.04(a)(3), (f) (West Supp. 2022). The jury found
Appellant guilty as charged, found the two enhancement allegations to be true, and
assessed punishment at confinement for sixty years in the Institutional Division of
the Texas Department of Criminal Justice. The trial court sentenced Appellant
accordingly. On appeal, Appellant presents two issues in which he complains that
he was deprived of his right to a fair trial and due process of law when the trial court
charged the jury: (1) by inclusion of an instruction on the law of provocation and
(2) the inclusion of “nature of conduct” within the stated definitions of
“intentionally” and “knowingly”—from Section 6.03 of the Texas Penal Code—
when charged with a “result of conduct” offense. We affirm the judgment of the
trial court.
Factual Background
Appellant and Gloria Vasquez had been in a relationship since 2014. Vasquez
would often stay with Appellant at his home. On the evening of September 10, 2020,
Vasquez picked up Appellant from work, and the two argued. They then separated
and Vasquez spent the evening with her daughter.
In her testimony at trial, Vasquez stated that she and her daughter drank some
wine coolers, after which an acquaintance drove Vasquez to Appellant’s house
around 11:00 p.m. Vasquez testified that after entering the house, she went to the
bedroom, tripped over a shoe, and touched the bed. According to Vasquez,
Appellant “jumped out of bed,” accused Vasquez of being drunk—which she denied,
and told her to leave his house. Vasquez claims that she attempted to deescalate the
situation by asking Appellant to lie down but that when she turned around, Appellant
punched Vasquez in the back of the head. Even though Vasquez told him to stop,
Appellant continued to verbally and physically assault her. Vasquez testified that
she pushed Appellant away and told him to leave her alone. Appellant pushed her
up against a wall, and Vasquez kicked him in response. According to Vasquez,
Appellant then punched her in the face three or four times, causing her mouth to
bleed. Vasquez unsuccessfully attempted to call 9-1-1 twice; the first time, she
dropped the phone, and the second time, Appellant knocked the phone out of her
hands. Vasquez left and went to her daughter’s house, and her daughter then called
9-1-1.
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At trial, Appellant testified that he only acted in defense of himself. Appellant
testified that he had called Vasquez to tell her to come home, but Vasquez did not
respond. Appellant was concerned because Vasquez went to drink with her daughter
two other times that week, coming home as late as 1:30 a.m. Appellant did not hear
from Vasquez, so he locked the door and went to bed at 10:30 p.m.—only to be
woken up an hour later by Vasquez ringing the doorbell and knocking on the door
and a window to get Appellant to let her in. Appellant testified that Vasquez was
drunk and that she ran into a tree outside while walking around the house. Appellant
said that he helped Vasquez inside, put her on the couch, and went back to bed.
Later, Vasquez got up, came into the bedroom, and tripped on a shoe, which woke
Appellant and started another argument. Appellant claimed that Vasquez then
slapped Appellant in the face “hard enough for [him] to see stars.” Appellant pushed
her out of the room, and she bumped into a wall trying to get away from Appellant
while he was “trying to guide her out the door.” Appellant also testified that he did
not strike Vasquez in the head but that he did hit her in the jaw.
On appeal, Appellant argues that in the guilt/innocence charge, the trial court
committed reversible error twice: first, in giving an instruction on the law of
provocation, and second, by including instructions for both the culpable mental
states of “result of conduct” and “nature of conduct” within the definitions of
“intentionally” and “knowingly” when Appellant was on trial for a result-of-conduct
offense. See PENAL § 6.03(a)–(b) (West 2021).
Standard of Review
A review of alleged jury-charge error involves two steps. Ngo v. State, 175
S.W.3d 738, 744 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731–32
(Tex. Crim. App. 1994). First, we determine if there is any error; second, if there is
error, we must determine if the error is harmful requiring reversal. Ngo, 175 S.W.3d
at 743–44; Abdnor, 871 S.W.2d at 731–32.
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Not all jury charge errors require reversal on appeal. Reeves v. State, 420
S.W.3d 812, 816 (Tex. Crim. App. 2013). If the charge is erroneous, then on appeal
we must first determine if the defendant objected to the erroneous charge. Id. If the
defendant objected to the erroneous charge, we will reverse if the record shows that
the error caused “some harm.” Id. Conversely, if the defendant failed to object, an
appellate court may only reverse upon a finding of “egregious harm.” Id. Egregious
harm is harm that denies the defendant a fair and impartial trial. Nava v. State, 415
S.W.3d 289, 298 (Tex. Crim. App. 2013). This is a difficult standard to meet, and
the harm must be shown in the record. Reeves, 420 S.W.3d at 816. To assess harm,
the appellate court reviews (1) the jury charge itself, (2) the state of the evidence,
including weight and probative value, (3) counsel’s arguments, and (4) any other
relevant information in the trial record. Vega v. State, 394 S.W.3d 514, 521 (Tex.
Crim. App. 2013).
Analysis
At the jury charge conference, the trial court and both parties conducted a
thorough review of the charge. At no point during the jury charge conference did
Appellant object to the inclusion or wording of either of the instructions about which
he now complains on appeal. Because Appellant did not object to either instruction,
error, if any, will be reviewed under the egregious harm standard. Reeves, 420
S.W.3d at 816.
I. Provocation
In his first issue, Appellant argues that there was no evidence to support an
instruction on the “law of provocation.” The doctrine of provocation or “provoking
the difficulty” provides that, if the defendant provoked the victim to attack the
defendant so that the defendant would have a pretext to kill or injure the victim, the
defendant forfeits his right of self-defense. Elizondo v. State, 487 S.W.3d 185, 198
(Tex. Crim. App. 2016); Smith v. State, 965 S.W.2d 509, 512–13 (Tex. Crim. App.
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1998); see PENAL § 9.31(b)(4) (West 2019). Appellant asserts that the trial court
erroneously included an instruction on the doctrine of “provocation” and cites Smith
in support.
Appellant’s reliance on Smith and the doctrine of provocation is misplaced
because, in its charge to the jury, the trial court did not instruct the jury on the
doctrine of provocation. Rather, the specific language from the jury charge about
which Appellant complains on appeal reads as follows:
Self-defense does not cover conduct in response to verbal
provocation alone. The defendant must have reasonably believed the
other person had done more than verbally provoke the defendant.
This language stems from Section 9.31(b)(1) of the Penal Code; It does not
encompass the doctrine of provocation under Smith or Section 9.31(b)(4), does not
relate to any provocation by Appellant as a pretext to injure Vasquez, and does not
inform the jury about any forfeiture of or limitation on Appellant’s right of self-
defense. See Woodruff v. State, No. 08-19-00141-CR, 2021 WL 3667272, at *5–6
(Tex. App.—El Paso Aug. 18, 2021, pet. ref’d) (mem. op., not designated for
publication) (addressing the distinction between a Section 9.31(b)(1) instruction and
a Section 9.31(b)(4) instruction). The Section 9.31(b)(1) instruction about which
Appellant complains on appeal does not constitute a “provocation” instruction. Id.Furthermore, the trial court did not err when it tracked the language of
Section 9.31(b)(1) and instructed the jury that self-defense does not cover conduct
“in response to verbal provocation alone.” See id.; Preston v. State, No. 03-16-
00573-CR, 2018 WL 3447713, at *11 (Tex. App.—Austin July 18, 2018, no pet.)
(mem. op., not designated for publication) (holding that such an instruction was a
correct statement of the law of self-defense as provided for in the Penal Code and
the Texas Criminal Pattern Jury Charges); Castillo v. State, No. 14-03-00034-CR,
2005 WL 1294461, at *11 (Tex. App.—Houston [14th Dist.] Feb. 15, 2005, pet.
ref’d) (mem. op., not designated for publication) (stating that such an instruction
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does not constitute a limitation on self-defense). Because we have found no error
with respect to Appellant’s first issue, it is unnecessary to further analyze or discuss
Appellant’s claim of egregious harm. We overrule Appellant’s first issue.
II. “Intentionally” and “Knowingly” Definitions
In his second issue, Appellant argues that the trial court erred by the inclusion
of an instruction that might be appropriate for “nature of conduct” offenses but not
for the offense with which Appellant was charged—Injury to a Child, Elderly
Individual, or Disabled Individual under Section 22.04 of the Texas Penal Code—a
“result of conduct” offense. Appellant contends that the Section 6.03 definitions of
“intentionally” and “knowingly” constituted error because they included “nature of
conduct” language in addition to “result of conduct” language. In light of the
erroneous instruction to the jury, Appellant contends that he was egregiously
harmed, being deprived of due process and the right to a fair trial.
The Texas Penal Code provides four culpable mental states for offenses:
intentionally, knowingly, recklessly, and criminal negligence. PENAL § 6.03. The
scope of the above culpable mental states are limited by “conduct elements,” which
fall into three offense categories: (1) “results of conduct” (2) “nature of conduct,”
and (3) “surrounding circumstances” offenses. Cook v. State, 884 S.W.2d 485, 487
(Tex. Crim. App. 1994) (citing McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim
App. 1989)); see Young v. State, 341 S.W.3d 417, 423–24 (Tex. Crim. App. 2011).
The Court of Criminal Appeals requires trial courts to limit the culpable mental
states in their jury charge only to the “conduct elements” for the specific offense on
trial. Cook, 884 S.W.2d at 491.
The crux of the “conduct elements” question is what makes the conduct
illegal. For example, “nature of conduct” crimes, such as gambling and assault by
threat, focus on the nature of the crime. Peek v. State, 494 S.W.3d 156, 162 (Tex.
App.—Eastland 2015, pet. ref’d) (citing McQueen, 781 S.W.2d at 603; Zuliani v.
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State, 383 S.W.3d 289, 298 (Tex. App.—Austin 2012, pet. ref’d)). “Result of
conduct” crimes, such as injury to a child or to an elderly individual, focus on the
result of the act. McQueen, 781 S.W.2d at 603 (collecting cases). “Circumstances
of conduct” crimes, such as unlawfully discharging a firearm, focus on the
surrounding circumstances of the act. Young, 341 S.W.3d at 423 (unlawfully
discharging a firearm).
Injury to the elderly is defined by the injury caused, not how the injury was
caused nor the surrounding circumstances that led to the injury being caused. See
PENAL § 22.04(a). Therefore, as the Court of Criminal Appeals has held, injury to
the elderly is a “result of conduct” offense. Jefferson v. State, 189 S.W.3d 305, 312
(Tex. Crim. App. 2006); Kelly v. State, 748 S.W.2d 236, 239 (Tex. Crim. App.
1988); see PENAL § 22.04(a); see also Cook, 884 S.W.2d at 487.
Since injury to a child, elderly individual, or disabled individual is a result-
oriented crime, the trial court’s inclusion of the “nature of conduct” language in the
definitions of “intentionally” and “knowingly” was error. See Haggins v. State, 785
S.W.2d 827, 828 (Tex. Crim. App. 1990) (holding that defendant was entitled to a
definition in the jury charge that is limited to the kind of mental state criminalized
in the statute). The State concedes that the inclusion of the “nature of conduct”
language was error. Appellant did not, however, object to this instruction at trial;
therefore, we use an egregious harm standard to evaluate the error. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). “[T]he record must
show that a defendant has suffered actual, rather than merely theoretical, harm from
jury instruction error. Errors that result in egregious harm are those that affect ‘the
very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect
a defensive theory.’” Ngo, 175 S.W.3d at 750 (footnote omitted).
To assess egregious harm, we review what the Texas Court of Criminal
Appeals has referred to as the Almanza factors: (1) the jury charge itself, (2) the state
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of the evidence, including weight and probative value, (3) counsel’s arguments, and
(4) any other relevant information in the trial record. See Vega, 394 S.W.3d at 521.
When considering harm in a failure to limit the definition of culpable mental states,
we may consider the degree to which the application paragraph limits any overbroad
language. Cook, 884 S.W.2d at 492 n.6. When the facts, as applied to the application
paragraph, point the jury to the appropriate definitions, there is no harm in a failure
to limit the definitions of culpable mental state to result and circumstances of
conduct. Cook v. State, No. 05-90-01378-CR, 1994 WL 533063, at *3 (Tex. App.—
Dallas Sept. 28, 1994, no pet.) (not designated for publication).
In our review of the record, the entirety of the jury charge weighs against
finding harm. Analyzing the jury charge, we see that the trial court used the standard
definitions of mental culpability found in Section 6.03 of the Penal Code in the
abstract portion of the jury charge.1 However, the definitions of mental culpability
were appropriately limited in the application paragraph of the jury charge. In the
application paragraph, the trial court charged the jury as follows:
Now if you find from the evidence beyond a reasonable doubt
that . . . [Appellant] did then and there intentionally or knowingly cause
bodily injury to Gloria Vasquez . . . by striking [her] about the head,
then you will find [Appellant] guilty as charged . . . .
A similar scenario occurred in Cook, where the defendant was charged with
intentional murder, a result-oriented crime. Cook, 884 S.W.2d at 485, 491 (the
1
The charge read as follows:
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.
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.
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definitions of “intentionally” and “knowingly” in the abstract portion of the jury
charge were not limited to “result of conduct”); see Martinez v. State, 763 S.W.2d
413, 419 (Tex. Crim. App. 1988). In Cook, the Court of Criminal Appeals found
error and remanded for a harm analysis. Id. at 491–92. To determine harm on
remand, the Dallas Court of Appeals viewed the terms in their factual context and
analyzed the grammatical structure of the application portion of the jury charge.2
Cook, 1994 WL 533063, at *2. The Dallas court held that the wording of the charge
did not authorize the jury to convict the defendant “on his conduct alone,” and it held
that there was “no harm” in the trial court’s failure to limit the abstract definitions
of “intentionally” and “knowingly” to the result of the defendant’s conduct. Id. at
*2–3.
Our case is virtually indistinguishable from Cook. Here, the abstract
definitions contained “nature of conduct” language, even though the charged offense
is a “result-oriented” crime. See PENAL § 22.04; Jefferson, 189 S.W.3d at 312. The
application paragraph asked the jury to determine whether Appellant “did . . .
intentionally or knowingly cause bodily injury to Gloria Vasquez.” The terms
“intentionally” and “knowingly” directly modify the phrase “cause bodily injury.”
Thus, only the “result of conduct” language from the abstract definitions applied to
the facts in Appellant’s case.
The weight and probative value of the evidence also weighs against finding
harm. At trial, Vasquez testified about the circumstances leading up to the assault.
She testified that Appellant punched her on the chin and about the face and head.
2
The relevant part of one of the application paragraphs in Cook read as follows:
Now, if you find from the evidence beyond a reasonable doubt that . . . the defendant . . .
did intentionally or knowingly cause the death of MICHAEL WILLIAMS, an individual, by
stabbing MICHAEL WILLIAMS with a knife, a deadly weapon, as alleged in the
indictment, . . . then you will find the defendant guilty of murder.
1994 WL 533063, at *2. The other application paragraph in Cook contained the same italicized
phrase but was a charge on voluntary manslaughter. Id.9
Although Appellant testified that he merely pushed or “guided” her out of the room,
he also admitted that he struck her on the jaw once to make her leave. The nature of
the injuries sustained by Vasquez, as depicted in bodycam footage and photographs
that were admitted as exhibits at trial and as described in the testimony of a police
officer who responded to the assault call, support Vasquez’s version of the events.
This evidence suggests that Appellant by his conduct intended to cause the resulting
injuries—consistent with a “result of conduct” offense.
Further, counsels’ trial arguments during the guilt/innocence phase weighs
against finding egregious harm. Both parties’ arguments framed the charge as a
“result of conduct” offense. In Appellant’s closing argument, he referred to the
application paragraph of the jury charge and highlighted the language “that the
defendant intentionally and knowingly cased [sic] bodily injury by striking her about
the head.” In the State’s closing argument, the State also argued the law correctly,
limiting culpability to the result of Appellant’s conduct.
Other relevant information in the trial record weighs against finding harm.
During voir dire, the State addressed culpability for injury to an elderly individual
and limited its comments to results-only language. The State discussed some
definitions but did not define “intentionally” or “knowingly,” properly or
improperly. The State’s opening statement made no reference to any definition of
“intentionally” or “knowingly.” The record shows that, during its deliberations, the
jury never inquired of, submitted any note to, or communicated to the trial court
indicating any confusion regarding the element of intent.
The only mention or reference to the erroneous definition of mental
culpability is contained in the standard definitions included in the abstract portion of
the jury charge. No other part of the record suggests that the State intended to
exacerbate the error, or actually caused any exacerbation. All four Almanza factors
weigh against a finding of harm. Accordingly, we hold that Appellant was not
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egregiously harmed by the trial court’s failure to limit the abstract definitions, and
we overrule Appellant’s second issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
February 9, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Williams, J., and Wright, S.C.J.3
Trotter, J., not participating.
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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