Opinion
Nos. 05-09-00647-CR, 05-09-00648-CR, 05-09-00649-CR
Opinion Filed August 10, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F-0830680-Y, F-0858178-Y, and F-0858179-Y.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
Joe David Delagarza appeals his jury convictions for deadly conduct, evading arrest, and aggravated assault. In eight issues, he complains of the sufficiency of the evidence to support the deadly conduct and aggravated assault convictions, the admission of certain evidence in the deadly conduct case, and the court's charge in each case. We affirm the convictions.
Background
The events leading to Delagarza's convictions occurred over two days. They began the afternoon of July 17, 2008 when multiple gunshots were fired at and into his ex-wife's house while she, her son, and two grandchildren were inside, and they ended the following afternoon with a short car chase and shoot-out with police officers. Although he shot at more than one officer, Delagarza was charged with aggravated assault against one officer only, Dennis Burnside. The State called more than fifteen witnesses at the two-day trial including Delagarza's ex-wife Angelita Barron, his older daughter Mona Lisa, a granddaughter, his brother Fernando, and many of the officers involved in the car chase, shoot out, and investigation of the shooting at the house. Fernando, the State's first witness, testified he met Delagarza at a gas station around 2:30 or 3:00 p.m. on July 17, 2008. Delagarza was accompanied by a friend, Nicole Crittenden, and was driving a black or white car that belonged to Crittenden. Fernando testified Delagarza and his ex-wife had two daughters, Mona Lisa and Sarah. Fernando met Delagarza at the gas station because Delagarza wanted to see Sarah, and Fernando was responsible for setting up visits between Delagarza and his daughters. Fernando could not locate Sarah at her job and thought she might be at home. Delagarza asked Fernando to call Sarah to see if Delagarza could stop by the house for a visit, but Fernando refused. Fernando explained Sarah lived with Delagarza's ex-wife, Angelita Barron, and Delagarza and Barron did not get along. Delagarza left the gas station, and a few hours later, Fernando learned someone had fired gunshots at and into Barron's house. Fernando suspected it was Delagarza. Fernando testified Delagarza was addicted to methamphetamine and, although Delagarza did not appear to be under the influence of any substance when they met at the gas station, Fernando believed Delagarza must have been under the influence of a substance to have shot at Barron's house. According to Fernando, Delagarza called him the following day and accused him of calling Barron to tell her Delagarza was going to the house. Delagarza was upset and threatened "to come after" Fernando and Fernando's wife. Barron testified she was having a late lunch at home when she heard a car stop in front of her house. She observed the driver and a female passenger talking and then the female left the car. The car was black. The driver handed the female "something," which the female placed in the small of her back and shirt. Barron could not see the driver's face, but recognized the driver's hand as Delagarza's. Barron described the driver's hand as "white pale," "soft . . . and . . . more of a feminine hand than a masculine hand." Barron testified the structure of Sarah's and Delagarza's hands is similar and is a characteristic of Delagarza she remembered. Barron became afraid and ran to the living room where her young son and grandchildren were watching television. She told the children she feared she was in danger and then went to the front door. Barron could see the female approaching the house and opened the door. She asked the female what she wanted, and the female replied her car had "broke[n] down" and she needed help. The female entered the house and told Barron to come with her. The female was holding the door. Barron asked her to let go of the door and when the female refused, Barron threw a plate she was holding at the female. A struggle ensued, and Barron threw a few more items at the female. The female responded by threatening Barron, and Barron responded by asking her son to get her gun. The female then ran and Barron closed the door. A few seconds later, she heard gunshots and saw a bullet come into the house. She took the children to the bathroom to hide and called 9-1-1. According to Barron, the gunshots continued. It appeared to Barron that the shots were being fired by two different guns. Barron testified she lived with Delagarza for approximately thirteen years and neither was happy during that time. Barron testified further that Delagarza was not allowed to come to her house. However, she knew Delagarza was driving the car and fired some of the shots. She explained she was certain because he had threatened and "promised" to hurt her. Barron's and Delagarza's granddaughter corroborated Barron's testimony and added that she saw the driver, a male, point a gun and then heard gunshots. Officer Oscar Garcia testified he arrived at the house within a minute of receiving the call. He noticed a car parked outside Barron's house "riddled with bullets" and a bullet hole on the screen of the front door. He found Barron and the children inside the home. Barron was "hysterical" and "excited," but was able to tell him what happened. Garcia also spoke to Samantha who recounted seeing a male in the car "shooting out" of the driver's window toward the house. Crime scene investigator April Stoll took over thirty pictures of the scene and collected bullet fragments and casings from the front porch area and near the car. The pictures, admitted into evidence, showed a broken plate and picture frame, bullet fragments found inside the car and scattered throughout the front of the house, and the bullet hole in the front door. Stoll testified that the casings came from a nine millimeter pistol. She also testified she prepared a report that contained a statement that two females, not one, approached Barron. Stoll received that information from another officer, but believed the statement to be incorrect. Lead detective Anthony Wester interviewed Barron, daughter Mona Lisa, and Crittenden. Based on the interviews, he believed one or more shots were fired from the porch area and additional shots were fired from the street. He obtained a warrant for Delagarza's arrest and charged Crittenden with deadly conduct also. Mona Lisa, whose children were at Barron's house the day of the shooting, testified she received an unsigned letter from Delagarza dated November 28, 2008. Over objection, the letter was admitted into evidence and read to the jury. In the letter, Delagarza explained why he and Crittenden had gone to Barron's house. Delagarza stated he told Crittenden that Sarah had complained to him that Barron had mistreated her as a child. Delagarza also told Crittenden that Barron had tried to poison him because he had multiple affairs while they were together. Crittenden thought Barron "needed her a___ kicked," and when Crittenden tried to "kick [her] a___ at her house," Barron started throwing things at her. Crittenden came back to the car and shot up Barron's car. A bullet "accidentally ricocheted off the truck and hit the door." Delagarza stated he did not remember what happened after that because he was "under the influence of ice [methamphetamine] for days and . . . had strong demonic spirits" living in him as a result of abuse he suffered at the hands of his father and stepfather. Undercover detective Oliveras testified he learned of the warrant for Delagarza's arrest on July 18, 2008. Based on information he received, Oliveras drove an unmarked car to Delagarza's mother's house that afternoon, parked on the street, and waited for Delagarza. About an hour later, Delagarza arrived at the house driving Crittenden's car. Delagarza and a passenger, later identified as Delagarza's brother Richard, left the car. Delagarza and Richard went into the house, came out and placed a black duffel bag in the car, and drove off. Olivares notified patrol officers of Delagarza's location so they could conduct a traffic stop and arrest Delagarza. Officers Tom Schwend, Dennis Burnside, Jacob White, Christopher Evans, and Margarito Gonzalez responded. Schwend and Burnside were alone in their patrol cars, White was accompanied by civilian Christopher Cantu, and Evans and Gonzalez were patrolling together. Schwend testified he was the first officer to get behind Delagarza. Once he had two other patrol cars behind him, Schwend signaled Delagarza to stop, but Delagarza did not stop. Uncertain if Delagarza realized he was being stopped, Schwend blew the air horn "a couple of times." Delagarza accelerated and cut through a construction area. At that point, Burnside got directly behind Delagarza and Schwend fell behind Burnside. The officers pursued Delagarza until Delagarza's car came to a sudden stop after hitting some railroad ties. Delagarza exited his car, raised his hand towards Schwend and Burnside, and started firing his gun. Schwend testified he heard bullets going past him. He did not return any shots himself, but followed Burnside as Burnside pursued Delagarza on foot. Moments later, Delagarza was shot in his back and fell. After a brief struggle with Schwend, Burnside, and White, Delagarza was arrested. Schwend testified he was about thirty to fifty yards from Delagarza when Delagarza began shooting. The chase and shooting were recorded by Schwend's in-car camera and the recording was played to the jury. The recording showed Burnside leaving the car with empty hands and immediately ducking as Delagarza fired shots at him. The recording also showed Delagarza shooting at Schwend. Burnside testified similarly to Schwend and added that when he saw Delagarza leave his car, he thought it would "be a normal foot chase." Burnside did not have his gun drawn when he left his car and was surprised by Delagarza firing at him and Schwend. Burnside felt "an immediate threat to [his] life" and believed Delagarza would cause him serious bodily injury or death. White, Evans, and Gonzalez testified they fired their weapons at Delagarza after Delagarza began shooting at Burnside. Together, they fired a total of fifteen rounds. Burnside did not fire any shots. Detective Joseph Allen "processed" the scene along with several other detectives. Allen and the other detectives took pictures of the scene and searched the car Delagarza had been driving. The pictures showed bullet casings scattered throughout the area, bullet-damaged cars, a knife believed to be Delagarza's and a knife sheath found on Delagarza, the nine millimeter gun used by Delagarza, and various items found in the car Delagarza was driving. Among the items found in the car were a bag containing crystal methamphetamine, a loaded .38-caliber revolver, an open beer bottle, a bag containing paperwork showing that Crittenden had purchased a nine millimeter Ruger handgun immediately before the shooting at Barron's house, and a plastic Ruger gun case. Allen testified that both White's car and the car Delagarza had been driving were hit by bullets. Allen believed Delagarza fired a total of seven shots and, "during the excitement of being shot at and him shooting at officers . . . accidentally shot a round off into his own car." Southwest Institute of Forensic Sciences fire and tool mark section supervisor Raymond Cooper testified he analyzed the various bullet fragments and casings that were found at the two scenes and examined the nine millimeter Ruger handgun used by Delagarza. Based on his analysis, Cooper determined that eleven cartridge casings and two bullet fragments found at Barron's house were fired by the Ruger handgun, and two bullet fragments found at Barron's were excluded as being fired by the Ruger. Cooper also determined that two of the bullets and fifteen cartridge cases found by Allen were fired by the Ruger. Delagarza did not testify, but called his brother Richard as the sole witness at the guilt-innocence stage. Richard testified he and Delagarza had spent the day Barron's house was shot with Crittenden and Crittenden's sister Sheryl and had used crystal methamphetamine that night. Richard testified further that he and Delagarza went briefly to their mother's house the following afternoon. As they left their mother's neighborhood, they noticed several patrol cars, and Delagarza remarked to Richard that "they are coming for me." The patrol cars got in a line behind Delagarza and activated their lights. Delagarza told Richard "Here they come, Bro, they're coming" and when Richard told Delagarza to pull over, Delagarza replied "they're going to kill me, Bro, you don't understand, they're going to kill me." Delagarza then accelerated. Richard did not "understand what was going on," and again told Delagarza to stop. Delagarza continued driving until he hit some railroad ties and could no longer drive the car. Delagarza got out of the car, and Richard noticed "cops all around" them. Richard heard gunshots, saw Delagarza use the driver's side door as a shield from bullets, and saw the car get hit by bullets. Richard did not know, however, if Delagarza or the officers fired first. Richard testified he had previously seen Delagarza with the .38-caliber gun and that Delagarza had gotten the nine millimeter handgun the day before the arrest. Instructed on self-defense in the aggravated assault case and authorized to convict Delagarza of deadly conduct if it found he acted alone, as a party, or as a co-conspirator, the jury returned general verdicts of guilty as charged in each case. Following punishment testimony, the jury assessed enhanced sentences of twenty-five years in the deadly conduct case, twenty years for evading arrest or detention, and life for the aggravated assault.II. Sufficiency of the Evidence
In his third, fourth, and eighth issues, Delagarza challenges the sufficiency of the evidence to support the deadly conduct and aggravated assault convictions. Specifically, in his third and fourth issues, Delagarza asserts the evidence is legally and factually insufficient to support he committed the offense of deadly conduct either as a party or alone because no witness identified Delagarza or Crittenden as being at Barron's house and no evidence existed showing any plan between Delagarza and Crittenden to shoot at Barron's house. In his eighth issue, Delagarza asserts the evidence is factually insufficient to support the aggravated assault conviction because he acted in self-defense.A. Standard of Review
In Brooks v. State, the Texas Court of Criminal Appeals overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim App. 1996), which adopted a factual sufficiency standard of review. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). The court concluded in Brooks that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt. Id. at 895. Accordingly, we review issues three, four, and eight under the Jackson standard. See Jackson v. Virginia, 443 U.S. 307 (1979). Under the Jackson standard, a reviewing court examines all the evidence, whether properly admitted, in the light most favorable to the verdict and determines whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). When the issue of self-defense is raised before the trier of fact, the reviewing court determines, viewing the evidence in the light most favorable to the verdict, not only whether the trier of fact could have found the essential elements of the offense beyond a reasonable doubt but also whether the trier of fact could have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). In conducting the sufficiency review, the court defers to the trier of fact's credibility and weight determinations because the trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 319, 326; Brooks, 323 S.W.3d at 899; see also King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (review of evidence for legal sufficiency does not involve reweighing of evidence or substitution of jury's judgment). When the trial court's charge authorizes the jury to convict on more than one theory, the conviction will be affirmed if the evidence is sufficient on any one of the theories. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).B. Applicable Law
Based on the indictment, to establish Delagarza was guilty of deadly conduct, the State had to prove beyond a reasonable doubt that Delagarza knowingly discharged a firearm, a deadly weapon, at or in the direction of Barron's habitation and was reckless as to whether the habitation was occupied. See Tex. Penal Code Ann. § 22.05(b) (West 2011). The State could establish this through circumstantial evidence and through evidence Delagarza either acted on his own or, acting with intent to assist or promote the commission of the offense, he solicited, encouraged, directed, aided, or attempted to aid the other person to commit the offense. See id. §§ 7.01, 7.02(a)(2); Conner, 67 S.W.3d at 197 ("conclusion of guilt can rest on the combined and cumulative force of all incriminatory circumstances."). The State could also establish Delagarza's guilt through evidence showing that, in an attempt to carry out a conspiracy to commit one felony, a co-conspirator committed deadly conduct and, though having no intent to commit that act, the co-conspirator committed it in furtherance of the conspiracy and the act was one that should have been anticipated as a result of carrying out the conspiracy. See Tex. Penal Code Ann. § 7.02(b). To establish Delagarza was guilty of aggravated assault, the State had to prove beyond a reasonable doubt that Delagarza intentionally or knowingly threatened Burnside with imminent bodily injury, used or exhibited a deadly weapon-a firearm, and knew Burnside was a police officer engaged in the lawful discharge of an official duty. See id.§§ 22.01(2), 22.02(a)(2), (b)(2)(B). By proving its case beyond a reasonable doubt, the State also satisfied it burden of persuasion in disproving Delagarza's claim that he was justified in using deadly force against Burnside because he reasonably believed such force was immediately necessary to protect himself against Burnside's use or attempted use of unlawful deadly force. See id. § 9.32; Saxton, 804 S.W.2d at 913.C. Application of Law to Facts
Delagarza maintains the deadly conduct conviction must be reversed because the closest evidence placing him at Barron's house was Barron's testimony that "the hand she saw handing something to the [female]" after the black car stopped in front of her house was Delagarza's and this testimony was "far from a positive identification." Delagarza also asserts the conviction must be reversed because no witness identified Crittenden by picture or in court as the female who confronted Barron at Barron's house and no evidence established he and Crittenden had any plan to shoot at Barron's house. The record, however, reflects that (1) Delagarza communicated to his brother Fernando a desire to go to Barron's house, (2) the shooting at Barron's house occurred shortly after that, (3) the granddaughter observed a male shooting at Barron's house from a black car, (4) Delagarza had threatened Barron with harm, (5) bullet fragments and casings found at Barron's house were fired from the gun Delagarza's brother Richard had seen in Delagarza's possession and which was collected at the time of Delagarza's arrest, (6) Delagarza was driving a black car the day of his arrest, (7) Delagarza evaded detention, and (8) Delagarza fled from officers and shot at them. The record further reflects Delagarza told his brother Richard that the police were "coming for [him]" when they saw the multiple patrol cars after leaving their mother's house the day after the shooting at Barron's house. Also, he threatened his brother Fernando and Fernando's wife with harm because he believed Fernando had called Barron to alert her that he was coming. Additionally, Delagarza admitted in his letter to Mona Lisa that he was at Barron's house when the shooting occurred. Although Delagarza objected to the admission of that letter, in determining whether the evidence is legally sufficient to support a conviction, a reviewing court considers all the evidence, whether properly admitted. See Conner, 67 S.W.3d at 197. Viewing this evidence in the light most favorable to the verdict, we conclude that, contrary to Delagarza's assertion, the record contains evidence, in addition to Barron's testimony about the hand she saw in the car, from which a rational juror could conclude beyond a reasonable doubt that Delagarza was at Barron's house, knowingly shot at her house, and was reckless as to whether the house was occupied. Because the jury was authorized to convict Delagarza if it found he acted alone or as a party or co-conspirator, and the evidence is sufficient to support a conviction that Delagarza acted alone, we need not address his arguments concerning the evidence to support he acted in concert with Crittenden. See Guevara, 152 S.W.3d at 49. We resolve Delagarza's third and fourth issue against him. We also resolve Delagarza's eighth issue and conclude the evidence is legally sufficient to support the aggravated assault conviction and reject the self-defense claim. In arguing the evidence is insufficient to support his conviction because he acted in self-defense, Delagarza asserts the officers did not establish with certainty that he fired first. Delagarza further asserts the testimony that (1) he was pursued by several officers, (2) he told his brother Richard that the officers were going to kill him, (3) he was surrounded by several officers when he left his car at the end of the chase, and (4) his car was hit established he acted in self-defense. The record, however, reflects the officers testified consistently that Delagarza fired first. Moreover, although Delagarza argues he was justified in using deadly force against Burnside because he believed such force was necessary to protect himself against Burnside's use or attempted use of unlawful deadly force, Delagarza points to no evidence in the record, and we find none, showing Burnside used or attempted to use any unlawful deadly force against him. A rational juror could conclude that Delagarza was a police officer engaged in the lawful discharge of an official duty from Richard's testimony that Delagarza noticed the various patrol cars as he and Delagarza left their mother's neighborhood. Also, a rational juror could conclude that Delagarza intentionally or knowingly threatened Burnside with imminent bodily injury and used or exhibited a deadly weapon from Burnside's testimony that he felt threatened by Delagarza when he saw Delagarza pointing a gun at him and he feared serious injury or death. Finally, a rational juror could conclude that Delagarza was not justified in using deadly force from Burnside's testimony that he did not draw his weapon during the chase.III. Admission of Evidence
In his first issue, Delagarza complains of the admission of the unsigned letter to Mona Lisa. The letter was admitted over Delagarza's objection to its "authenticity" and followed testimony from both Barron and Mona Lisa identifying the handwriting on the letter as Delagarza's. Citing Texas Rule of Evidence 901, Delagarza asserts Barron's and Mona Lisa's "conclusory statements" that the handwriting was his were insufficient to authenticate the letter as being from him because neither testified how they were familiar with his handwriting. He further asserts he was harmed because it "was the key piece of evidence placing [him] outside [Barron's] house" and supporting the deadly conduct charge.A. Standard of Review
A trial court's evidentiary ruling is reviewed for abuse of discretion. See Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007); Page v. State, 125 S.W.3d 640, 648 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Druery, 225 S.W.3d at 502; Page, 125 S.W.3d at 648. No abuse of discretion occurs when the evidence is admitted based on the belief that a reasonable juror could find the evidence had been authenticated or identified. Druery, 225 S.W.3d at 502.B. Applicable Law
Texas Rule of Evidence establishes the authentication or identification requirement for the admissibility of evidence. Tex. R. Evid. 901; Page, 125 S.W.3d at 648. This requirement "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." See Tex. R. Evid. 901(a); Druery, 225 S.W.3d at 502. A handwritten document can be authenticated by presenting non-expert opinion testimony as to the genuineness of the handwriting. See Tex. R. Evid. 901(b)(2); Stafford v. State, 248 S.W.3d 400, 408 (Tex. App.-Beaumont 2008, pet. ref'd). The opinion must be based upon a familiarity with the handwriting acquired independently of the litigation. See Tex. R. Evid. 901(b)(2); Stafford, 248 S.W.3d at 408. A handwritten document can also be authenticated by showing "[d]istinctive characteristics and the like" including content, substance, internal patterns, and appearance, taken in conjunction with the circumstances. See Tex. R. Evid. 901(b)(4); Druery, 225 S.W.3d at 502.C. Application of Law to Facts
Neither Barron nor Mona Lisa testified how they were familiar with Delagarza's handwriting. However, Barron and Delagarza were together for approximately thirteen years and Mona Lisa was his daughter. See Stafford, 248 S.W.3d at 409 (concluding State authenticated victim's handwritten correspondence through daughter's testimony that she recognized handwriting on letters as her mother's). Further, the letter contained sufficient distinctive internal characteristics to support a finding that Delagarza authored the letter. The letter included intimate details of Delagarza's childhood and relationship with Barron, the confrontation between Crittenden and Barron, and Delagarza's state of mind the day Barron's house was shot and the days following. From these details, the trial court could have believed a reasonable juror could find the letter had been properly authenticated. See Druery, 225 S.W.3d 502-03 (concluding letter to appellant's cousin contained sufficient distinctive internal characteristics to support finding that appellant authored letter where, among other things, author identified himself as appellant and letter identified witnesses to offense and included details known to appellant); Johnson v. State, 208 S.W.3d 478, 499 (Tex. App.-Austin 2006, pet. ref'd) (concluding letter containing intimate details of appellant's life including previous marriages, suicide of second husband, and upcoming trip to Europe had sufficient distinctive internal characteristics to support finding that appellant wrote letter). Accordingly, we conclude the trial court did not abuse its discretion in admitting the letter. We resolve Delagarza's first issue against him.IV. Charge Error
In his second, fifth, sixth, and seventh issues, Delagarza asserts charge error.A. Standard of Review
Jury charge error is reviewed under the standard set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Under that standard, the reviewing court first determines whether error occurred. Id. (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). In determining whether error occurred, the reviewing court examines the charge as a whole, considering the workable relationship between the abstract paragraphs of the charge and those applying the abstract law to the facts of the case. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997); see also Caldwell v. State, 971 S.W.2d 663, 666 (Tex. App.-Dallas 1998, pet. ref'd). The abstract paragraphs act as a "glossary" to facilitate the jury's understanding of the concepts and terms used in the application paragraphs of the charge. Plata, 926 S.W.2d at 302; see also Caldwell, 971 S.W.2d at 666. A charge is adequate if it contains an application paragraph authorizing a conviction under conditions specified by other paragraphs of the charge to which the application paragraph necessarily and unambiguously refers, or contains some logically consistent combination of such paragraphs. Plata, 926 S.W.2d at 304; see also Caldwell, 971 S.W.2d at 666. If the reviewing court determines error occurred and appellant objected at trial, the reviewing court then determines whether the error was "calculated to injure" the appellant's rights or, there was "some harm." Barrios, 283 S.W.3d at 350 (quoting Almanza, 686 S.W.2d at 171). If the court determines "some harm" occurred, it must reverse the conviction. Id. (citing Almanza, 686 S.W.2d at 171). If appellant did not object, the court will reverse only if the error was "fundamental" and "so egregious" that appellant was denied a fair and impartial trial. Id. (quoting Almanza, 686 S.W.2d at 171). The degree of harm is determined in light of the entire charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.B. Applicable Law
The purpose of the jury charge is to inform the jury of the applicable law and guide the jurors in applying it to the facts of the case. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). The charge must allow the jury to determine guilt in light of the evidence and the law. Id. Under Texas Code of Criminal Procedure article 36.14, a trial judge "shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury." Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). A judge's duty to properly charge the jury exists even when defense counsel fails to object to inclusions or exclusions in the charge and thus the judge must sua sponte instruct the jury on the law applicable to the case. Taylor, 332 S.W.3d at 486. This sua sponte duty, however, does not necessarily extend to issues dependent on strategy or tactics such as defensive issues, lesser-included offenses, or evidentiary issues. See Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). Generally, such issues are "law applicable to the case" for purposes of article 36.14 only if raised by the evidence and requested to be included in the charge. See id. at 249-51.C. Application of Law to Facts 1.Deadly Conduct
In his second issue, Delagarza argues the court failed to give a full instruction concerning the law of the parties in the deadly conduct case and failed to apply the facts to the law. Relevant to this issue, the court's charge included the following abstract paragraphs: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.
If, in the intent [sic] to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.These paragraphs tracked the language of Texas Penal Code sections 7.02(a)(2) and (b), respectively, concerning a person's criminal responsibility for the conduct of another. See Tex. Penal Code Ann. § 7.02(a)(2), (b). They were immediately followed by the following application paragraph:
Now if you find from the evidence beyond a reasonable doubt that on or about the 17th day of July, 2008, in Dallas County, Texas, the defendant, JOE DAVID DELAGARZA, acting alone or as a party, did then and there knowingly discharge a firearm, a deadly weapon, at or in the direction of a habitation of ANGELITA BARRON, and defendant was then and there reckless as to whether the habitation was then occupied, in that defendant discharged the firearm, a deadly weapon, into said habitation that was occupied by said complainant at the time of said shooting, then you will find the defendant guilty of deadly conduct, as charged in the indictment.Delagarza asserts this charge is erroneous in three respects and, as a result, his conviction should be reversed. First, he asserts the abstract paragraphs contained in the charge only partially set forth the law applicable to the case, and the court should have included a paragraph tracking the language of penal code section 7.01(a). That section provides that "[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Id. § 7.01(a). Delagarza maintains the court's failure to include this instruction "affected the jury's ability to fairly and accurately implement the instruction/commands of the application paragraph." Second, Delagarza argues that the harm from the omission of the 7.01(a) instruction was "compounded" by the court's failure to apply the law to the facts of the case. Delagarza asserts that while the application paragraph mentioned the word "party," it did "not set forth the conditions under which the jury could convict [him] of the offense of deadly conduct as a party." Delagarza notes the charge omits the name of the "other party" and does not set forth that the jury would need to find the other party guilty as the primary actor beyond a reasonable doubt in order to convict Delagarza as a party. See Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993) ("if the State is to prove a defendant's guilt as a party beyond a reasonable doubt, the State must first prove the guilt of another person(s) as the primary actor(s)."). Third, Delagarza asserts the application paragraph failed to authorize a conviction under a conspiracy theory because it failed to mention that theory entirely. In response, the State asserts, among other arguments, that any error was "immaterial" because the evidence supported Delagarza's guilt as a principal. Assuming, without deciding, that the court's charge was erroneous, we conclude any error was harmless. Delagarza did not assert his complaints about the charge at trial, and as such, we look to see if any error was "so egregious" that he was denied a fair and impartial trial. The record reflects the State requested the instruction on the law of the parties and conspiracy theory. The record further reflects the State argued to the jury three alternate theories of culpability-that Delagarza acted alone, as a party, or as a conspirator. By omitting the conspiracy theory from the application paragraph, however, the charge narrowed to two the theories from which the jury could find Delagarza guilty. This benefitted Delagarza. Moreover, as we concluded in our discussion of the sufficiency of the evidence, the evidence supports a finding that Delagarza committed the offense acting alone. Such evidence by itself has been found to render any error resulting from an improper charge on the law of the parties harmless. See Brown v. State, 716 S.W.2d 939, 945-46 (Tex. Crim. App. 1986); Ryan v. State, 937 S.W.2d 93, 105 (Tex. App.-Beaumont 1996, pet. ref'd); see also Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996) ("the harmfulness of error in a jury charge should be measured, at least in part, against the likelihood that the jury's verdict was actually based upon an alternative theory of culpability not affected by erroneous portions of the charge."), overruled on other grounds by, Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). We resolve Delagarza's second issue against him.
2.Evading Arrest or Detention
In his fifth issue, Delagarza complains of the following instruction in the evading arrest or detention charge:The actor is presumed to have known the person attempting to arrest or detain him or her was a peace officer if he was driving a marked patrol car indicating the person's employment as a peace officer.Because Texas Penal Code section 38.04 which governs the offense of evading arrest or detention does not provide for such a presumption, Delagarza argues the court erred in including this instruction in its charge. See Tex. Penal Code Ann. § 38.04. Delagarza did not object to the charge at trial, but maintains this error amounted to an improper comment on the weight of the evidence and lessened the State's proof. Delagarza also argues the error was compounded by the trial court's failure to charge the jury on the law of presumptions in accordance with section 2.05 of the penal code. See id. § 2.05(a)(2) ("when this code or another penal law establishes a presumption with respect to any fact . . . the court shall charge the jury, in terms of the presumption and the specific element to which it applies"). Delagarza maintains he was harmed as a result of the erroneous charge and his conviction should be reversed. Although a trial judge may not comment on the weight of the evidence, we need not determine whether error occurred because we conclude Delagarza was not egregiously harmed. See Tex. Code Crim. Proc. Ann. art. 36.14. The charge instructed the jury, in relevant part, to find Delagarza guilty of evading arrest or detention if it found beyond a reasonable doubt that Delagarza fled from Schwend while Schwend was lawfully attempting to arrest or detain him and Delagarza knew Schwend was a peace officer. Although Delagarza argues the complained-of instruction lessened the State's proof and allowed the jury to disregard his defensive evidence, no dispute existed at trial that Schwend was in a patrol car when he activated his lights and siren and signaled Delagarza to stop. In fact, Delagarza's brother Richard testified Delagarza noticed the many patrol cars when they left their mother's neighborhood and knew they were "coming after him." Considering the relevant portions of the record, we cannot conclude Delagarza was denied a fair and impartial trial and egregiously harmed. We resolve his fifth issue against him.