664 S.W.3d 240

Tex. Crim. App.

2022

PHILLIP ANDREW CAMPBELL, Appellant v. THE STATE OF TEXAS

NO. PD-0449-21

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

September 21, 2022

SLAUGHTER, J., delivered the opinion for a unanimous Court.

O P I N I O N

A jury convicted Appellant Phillip Andrew Campbell of murdering Alexandria Jade Wright (“Jade“) by manual strangulation. In his testimony at trial, Appellant contended that on the night of Jade‘s death, he and Jade had engaged in rough sex involving erotic asphyxiation. Although Appellant admitted that he purposely choked Jade, he insisted that it was consensual, that he did not intend to harm her, and that her death was simply a tragic accident.

In the instructions that were submitted to the jury, over defense counsel‘s objection, the trial court included a definition for “intentionally” as it related to both the “nature” of Appellant‘s conduct as well as to the “result” of his conduct, even though intentional murder is a result-of-conduct offense. On appeal, Appellant argued that because of this, the charge improperly allowed the jury to convict him if it found that he intentionally choked Jade, rather than requiring the jury to find that he intentionally killed Jade. The Tenth Court of Appeals concluded that the error in the charge, if any, was harmless. We granted review to decide whether this conclusion was in error. Based on our independent review of the record, we agree that Appellant was not actually harmed by the trial court‘s failure to tailor the definition of “intentionally” to the result of Appellant‘s conduct. Accordingly, we affirm the court of appeals’ judgment.

I. Background

A. Facts and Procedural History¹

Appellant and Jade were acquaintances who knew each other through a mutual friend. The two began talking over social media and eventually became friends. On occasion, according to Appellant, he would buy drugs from Jade, often giving her extra money in the transaction “just to help her out.” In the days leading up to her death, Jade was short on cash and she turned to Appellant for help. According to Appellant, they came to an agreement whereby Jade would have sex with him in exchange for $300.²

On October 5, 2017, the two met at a Mexican restaurant and bar in Burleson. Together they walked over to the Days Inn Hotel and rented a room for the night. Appellant testified that he and Jade then began using drugs and having sex. Appellant claimed that during sex, they engaged in erotic asphyxiation, otherwise known as choking, to intensify pleasure. Appellant contended that the choking was consensual: he choked Jade and she choked him as well. Ultimately, Jade died of manual strangulation.

Appellant was indicted for murder under three different theories: (1) Appellant intentionally caused Jade‘s death; (2) Appellant knowingly caused Jade‘s death; or (3) Appellant intended to cause Jade serious bodily injury and committed an act clearly dangerous to human life that caused her death. See TEX. PENAL CODE § 19.02(b)(1)–(2). Each theory was based on the same conduct: Appellant caused Jade‘s death by impeding her normal breathing or circulation of the blood or by applying pressure to her throat or neck. He entered a not guilty plea and proceeded to trial.

During the charge conference after the close of evidence, defense counsel objected to the jury charge‘s definition of “intentionally,” which mirrored the complete statutory definition of that term found in Texas Penal Code Section 6.03(a). It read: “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.” Defense counsel argued that because murder is a result-of-conduct offense rather than a nature-of-conduct offense, the definition of “intentionally” should be limited accordingly in the charge. The trial court disagreed and overruled the objection.³

The trial court also submitted lesser-included-offense instructions on manslaughter and criminal negligence as alternatives to murder. The jury ultimately found Appellant guilty of murder. In doing so, the jury returned a general verdict that did not indicate on which alternative theory it relied in convicting Appellant. Thereafter, the jury assessed a sentence of life imprisonment.

Appellant appealed his conviction, arguing that the jury charge erroneously defined “intentionally” such that the jury could have convicted him of murder by merely finding that he intended to choke Jade, rather than finding that he intended to harm and/or kill Jade. Campbell v. State, 625 S.W.3d 675, 676 (Tex. App.—Waco 2021). The Tenth Court of Appeals rejected his complaint, concluding that the error, if any, was harmless. Id. at 677. The court observed that “the jury charge provided alternative manner and means as well as alternative mental states,” some of which provided the correct definitions as they would apply to these circumstances. Id. Thus, it reasoned, any harm was merely theoretical because the jury‘s general verdict did not specify under which theory it found Appellant guilty, and Appellant therefore could not establish that the jury convicted him based on the erroneous definition. Id. The court further reasoned that the factors from Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‘g) weighed against a finding of harm here. Specifically, it noted that: (1) Appellant was found to be in possession of violent pornographic videos depicting strangulation and necrophilia; (2) the medical testimony indicated Jade died from manual strangulation that would have required a strong compressive force for three to five minutes; and (3) the State‘s closing arguments emphasized that Appellant intended to kill Jade based on his sexual fantasies. Id. Viewing the alleged error in light of the Almanza factors, the court held that any such error was harmless.

Chief Justice Gray dissented. Id. at 677–79. In his view, the record established actual harm because the jury was instructed on an improper theory of liability. Chief Justice Gray further noted that under the majority‘s reasoning, there would be no way to show actual harm in a case like this one with both proper and improper culpability instructions where the jury‘s general verdict failed to reveal the theory upon which it relied in convicting. Id. He would have reversed the conviction “because the only contested issue was intent, and the failure of the definition of ‘intentionally’ to limit the relevant conduct to intending the result made the finding of murder all but inevitable.” Id. at 679 (paraphrasing Jordan v. State, 593 S.W.3d 340, 347 (Tex. Crim. App. 2020)).

We granted Appellant‘s petition for discretionary review on a single ground to evaluate the court of appeals’ conclusion that, assuming the charge was erroneous for failing to tailor the definition of “intentionally” to the result of his conduct, such error was not harmful.⁵

II. Standard of Review

Claims of jury charge error are reviewed under the two-pronged test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‘g). First, a reviewing court must determine if there is jury charge error. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If there is error, then a harm analysis must be conducted. Id. If there was a timely objection, as in this case, the record need show only “some harm” to justify reversal of the conviction. Almanza, 686 S.W.2d at 171. “Some harm” means actual harm and not merely a theoretical complaint. Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013); Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012). In assessing “some” harm, the reviewing court considers the error in light of four factors: (1) the entire jury charge, (2) the state of the evidence, (3) the jury arguments, and (4) if applicable, any other relevant information as revealed by the record as a whole. See Almanza, 686 S.W.2d at 171. Neither party bears the burden to show harm. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). Ultimately, reversal is required if the error was calculated to injure the rights of the defendant. Cornet, 417 S.W.3d at 449 (citing Almanza, 686 S.W.2d at 171).

III. Analysis

Although our analysis in this case is limited to evaluating the court of appeals’ conclusion as to harm, we will review the basic law pertaining to the type of error that allegedly occurred here because it informs our harm analysis. The Penal Code contains definitions for four separate culpable mental states. See TEX. PENAL CODE ANN. § 6.03 (intent, knowledge, recklessness, criminal negligence). This Court has previously recognized that “the scope of those culpable mental states is limited by the type of offense,” which depends on the “conduct element.” Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). There are three “conduct elements:” (1) nature of conduct; (2) result of conduct; and (3) the circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). Intentional murder is a result-of-conduct offense. See Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Martinez v. State, 763 S.W.2d 413, 419 (Tex. Crim. App. 1988). Therefore, the question before us here is whether, assuming the charge was erroneous for failing to tailor the definition of “intentionally” to the result-of-conduct offense at issue, the error caused Appellant “some” harm.

The court of appeals reasoned, in part, that Appellant did not suffer actual harm because the jury instructions included alternative manner and means as well as alternative mental states, some of which were correct. Campbell, 625 S.W.3d at 676–77. Thus, the court below determined that any harm was merely theoretical because the jury could have relied on the proper definitions within the charge as a basis to convict Appellant. Id. We do not agree entirely with this portion of the court of appeals’ reasoning. After all, it was at least possible that the jury could have relied on the improper definition in convicting Appellant, notwithstanding the inclusion of the other proper theories and definitions. However, we do agree with the court of appeals’ ultimate conclusion that, based on a complete review of the record in light of the Almanza factors, the trial court‘s definition of “intentionally,” if erroneous, was harmless. We examine the Almanza factors in turn below.

1. The entire jury charge

The first Almanza factor requires us to consider the entire jury charge. Almanza, 686 S.W.2d at 171. In this case, the alleged error occurred within the abstract portion of the charge. Abstract paragraphs “serve as a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge.” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). In contrast, application paragraphs apply “the pertinent penal law, abstract definitions, and general legal principles to the particular facts and the indictment allegations.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). 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.” Cook, 884 S.W.2d at 492 n.6.

The jury charge in this case, in relevant part, read as follows:

Our law provides that a person commits the offense of murder if he intentionally or knowingly causes the death of an individual; or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

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 a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Now bearing in mind the foregoing instruction, if you believe from the evidence beyond a reasonable doubt that the Defendant, Phillip Andrew Campbell, on or about October 6, 2017, in the County of Johnson and State of Texas, did then and there intentionally or knowingly cause the death of an individual, namely, Alexandria Wright, by impeding the normal breathing or circulation of the blood of Alexandria Wright or by applying pressure to the throat or neck of Alexandria Wright or if you believe from the evidence beyond a reasonable doubt that the Defendant, Phillip Andrew Campbell, on or about October 6th, 2017, in the County of Johnson and State of Texas, did then and there with the intent to cause serious bodily injury to an individual, namely Alexandria Wright, commit an act clearly dangerous to human life that caused the death of Alexandria Wright by impeding the normal breathing or circulation of the blood of Alexandria Wright or by applying pressure to the throat or neck of Alexandria Wright, then you will find the Defendant guilty of the offense of Murder as charged in the Indictment and so say by your verdict.

(emphasis added).⁶

In Hughes v. State, 897 S.W.2d 285 (Tex. Crim. App. 1994), this Court considered the harm caused by a similar error in the context of a capital murder case. We first determined that, because the capital murder as charged was a result-of-conduct offense (intentional murder) with a circumstances-surrounding-the-conduct element based on the aggravating circumstance (that the victim was a police officer), the trial court erred by including nature-of-conduct language in the culpable mental state definitions in the abstract portion of the charge. Id. at 295–96. Nevertheless, in evaluating the harm stemming from such error under Almanza, we determined that the application portion of the charge limited the harmful effect of the erroneous culpable mental state definitions in the abstract portion. Id. at 296. The application paragraph in Hughes stated:

Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that . . . [the appellant] did intentionally and knowingly cause the death of [the victim], a peace officer acting in the lawful discharge of an official duty, . . . and [the appellant], then and there knew that [the victim] was a peace officer, then you will find [the appellant] guilty of capital murder as charged in the indictment . . . .

Id. (emphasis added). We observed that the terms “intentionally” and “knowingly” directly modified the phrase “cause the death.” Id. Thus, in context, it was “obvious that the ‘result of conduct’ and ‘cause the result’ language [were] the applicable portions of the full code definitions” of “intentionally” and “knowingly” found within the abstract portion of the jury charge. Id. In other words, the phrasing within the application portion of the charge made clear which part of the culpable mental state definitions were applicable because the jury was instructed that it could find the appellant guilty only if it found that he intentionally or knowingly caused the victim‘s death. We relied heavily on this consideration in determining that the appellant had not been harmed by the trial court‘s failure to properly limit the culpable mental state definitions in the abstract portion of the charge. Id. at 296–97 (concluding that “because the facts, as applied to the law in the application paragraph, pointed the jury to the appropriate portion of the definitions, no harm resulted from the court‘s failure to limit the definitions of culpable mental states to result and circumstances of conduct“).

So too here. The application section instructed the jury to find Appellant guilty of murder if it found that he ”intentionally or knowingly cause[d] the death of [Jade]” or if he had “the intent to cause serious bodily injury . . . [and] commit[ted] an act clearly dangerous to human life that caused” Jade‘s death. (emphasis added). In both instances, the terms “intentionally” and “intent” directly modified the result of Appellant‘s conduct. Therefore, just as in Hughes, the application section of the charge clearly directed the jury to the appropriate part of the definition of “intentionally,” which then clarified any ambiguity concerning the mental state required to convict Appellant of murder. Accordingly, factor one suggests that Appellant suffered no actual harm because the application section of the charge helped to ameliorate any error within the abstract portion. See id.; see also Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App. 1995) (“We conclude that because the facts, as applied to the law in the application paragraph, pointed the jury to the appropriate portion of the definitions, no harm resulted from the court‘s failure to limit the definitions of culpable mental states[.]“).⁷

2. The state of the evidence

The second Almanza factor calls for consideration of the entirety of the trial evidence, including the contested issues and the weight of the probative evidence. Almanza, 686 S.W.2d at 171. Here, the fact that the purported error directly relates to the central contested issue at trial—i.e., whether Appellant intended to harm and/or kill Jade—could potentially support a harm finding. See Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App. 1996). But, based on the weight of the probative evidence, this factor actually weighs against a harm determination.

As discussed above, the record reflects that Appellant and Jade had plans to meet up on the evening of October 5, 2017. Before leaving to meet Appellant that evening, Jade told her mother that she should be back by around 8:30 p.m.⁸ Jade then drove from her home in Saginaw to Burleson, where she met Appellant at a restaurant. The two then walked to a nearby hotel. They appear on the hotel‘s surveillance system renting a room at around 8:30 p.m. Upon entering the hotel room, according to Appellant, the two began using methamphetamine and marijuana, and Appellant was also drinking alcohol. Eventually, they started having sex. At around 11:30 p.m., Jade spoke to her mother on the phone and said she would be home soon.

At some unknown time after that phone call, Jade died from manual strangulation. Upon Jade‘s death, Appellant did not immediately call 911 or seek help. Instead, he continued to use drugs throughout the night. During this time, Jade‘s mother was calling and texting both Appellant and Jade. Most of these calls went straight to voicemail, and Appellant responded to these texts only once to say that he was not with Jade.

The following morning, Appellant went to the hotel lobby and paid for a second night in the room. At some point, Appellant left the hotel in his car. At around 3 p.m., Appellant was pulled over in a traffic stop near the hotel for failing to signal. He lied to the officer who pulled him over and stated that he was staying alone at the hotel and that he was there for work. The officer let him go with a warning. At some point during that afternoon, Appellant drove to the home he shared with his mother and aunt and took a shower and changed his clothes. He also called a friend to ask for advice, telling the friend that he was in trouble and thought he had killed someone. The friend told him to call the police. Jade‘s mother continued texting Appellant to ask about her daughter, but he denied being with her or knowing her whereabouts. Finally, after Appellant returned to the hotel later that evening, at about 10:17 p.m. on October 6th, he asked the front desk employee to call 911 while he waited in the room for the police to arrive.

When police arrived, they found Jade already deceased, lying naked under a sheet on the bed. According to testimony from the first officer on the scene, it appeared that she had been deceased for “a long amount of time.”⁹ The room was in a state of disarray with ripped out pages from a phone book scattered all around and the mattress askew on the bed. The contents of Jade‘s purse had been dumped out on the bed, and her cell phone had been smashed to pieces.¹⁰ Her clothes had been placed on top of a lamp. One detective opined that the condition of the room indicated a state of chaos and signs of a struggle. He also opined that the ripped out phone book pages and placement of clothes on top of the lamp were possibly indicative of someone contemplating starting a fire.

Appellant told officers that he “did everything he could,” including attempting CPR, but he was unable to save Jade. Multiple officers testified that Appellant appeared to be intoxicated by drugs. Appellant told a paramedic that he had consumed “ice, meth, weed, and some whisky.” Appellant later started complaining of chest pains and began vomiting, after which he was transported to the hospital. He was then arrested for Jade‘s murder. The primary contested facts were those surrounding what occurred in the moments leading up to Jade‘s death. The State‘s theory was that Appellant intentionally killed Jade to fulfill a deviant sexual fantasy. To support this theory, the State presented evidence that Appellant possessed numerous pornographic videos, some of which involved violent depictions of rape, manual strangulation causing death, and necrophilia.¹¹ While all the videos were not played for the jury, one video was played in part, and the State also offered into evidence several still images from the videos. One detective who had viewed the videos testified regarding the substance of each. Without describing the substance in detail here, suffice it to say that most of the videos depicted a male individual violently raping a female, then strangling her until the point of death. Some of the videos contain graphic images of the female victims with bruising and blood coming from their noses while being strangled. In several of the videos, the male perpetrator continues to have sex with the victim after her death.

In addition to this evidence, the State presented evidence that Appellant had created homemade pornographic videos in which he and a partner acted out scenes mimicking some of the non-violent pornographic films Appellant possessed. Appellant‘s former girlfriend also testified that Appellant showed her the violent pornographic videos depicting strangulations and necrophilia and told her that he would like to “try something like that, as long as he didn‘t kill [her].” She further stated that the two often engaged in consensual choking during sex, but she acknowledged that on one occasion Appellant had choked her to the point of unconsciousness without her consent.¹² She indicated that Appellant had a bad temper and sometimes blacked out while drinking and claimed he could not remember what happened. Given these facts, the State suggested that the jury could infer that Appellant violently choked Jade while intending or knowing that his conduct would cause her death so he could play out his deviant sexual fantasies.

Of critical importance to the State‘s theory was testimony from the medical examiner who performed Jade‘s autopsy, Dr. Nizam Peerwani. Dr. Peerwani opined that the cause of death was manual strangulation as evidenced by the hemorrhaging of both eyes, hemorrhaging to the inner surface of the strap muscles of the anterior neck, pooling or darkening of the face and petechia of the facial skin, a fracture to the horns of the thyroid cartilage, and scratches on the neck consistent with the victim attempting to release another‘s grip. He testified that manual strangulation requires a strong, compressive force to both carotid arteries for some three to five minutes, which cuts off the blood supply to the brain. Dr. Peerwani explained that the person first loses consciousness and then, if the strangulation continues, the brain becomes irreparably damaged by the lack of oxygen, which then results in the person‘s death. Thus, he told the jury that, to kill someone in this way, the actor must continue choking the victim for approximately two minutes beyond the point at which the victim loses consciousness. Further, Dr. Peerwani testified on cross-examination that, while “anything is possible,” an accidental death of someone participating in erotic asphyxiation was “highly unlikely.” This is because, he explained, “the forces applied [during erotic asphyxiation] are not to the extent that it cause[s] a person to die with fractures and hemorrhages and all that.” Dr. Peerwani concluded by stating that the type of death that occurred here “couldn‘t be accidental. I would always call that a homicide.”

Dr. Peerwani also described several other non-fatal injuries. Jade‘s right eye was swollen and there was an “area of contusion along the inner portion of the right eye.” On the left upper eyelid, there was an abrasion or a scrape with swelling, caused by blunt force trauma of some kind. There was a small abrasion or scrape along the bridge of Jade‘s nose. The right side of her face near the jawline showed a bluish discoloration, which was a “faint contusion that covered about two-and-a-half inches in totality diameter.” Dr. Peerwani testified that this was the result of “blunt force trauma of some kind, not [a] very severe one,” possibly a “soft blow” or a “hard slap.” Alternatively, the bruise could have been caused if she had “fallen down and tripped and hit her head on a hard, unyielding surface,” such as a floor or a side of a table. Regarding the bruising on her cheek, Dr. Peerwani could not say from the injury itself what caused it. There were no underlying internal injuries or fractures.

Dr. Peerwani also noted some abrasions along Jade‘s lips that would have been caused by a “strike on her face on the lips.” On the inside of Jade‘s mouth, there was a compression abrasion implying that the lower lip had been compressed against the teeth. In addition, there was a slight tear in the frenulum and hemorrhage along the inner lining of the upper lip. Dr. Peerwani opined that such an injury might result from a blow, or perhaps an attempted smothering where a person‘s hand is compressed on someone else‘s mouth and causes a crushing injury along the inner surface of the lips, which are being compressed against the teeth or jawbones.

In viewing these injuries collectively, Dr. Peerwani agreed with the prosecutor‘s suggestion that Jade would have suffered at least several discrete impacts or blows to cause the various injuries, given their disperse placement on her face. But he reminded the prosecutor that Jade “could be stumbling and falling down and hitting the ground, so I can‘t say with certainty” how the injuries to the face occurred. He agreed with defense counsel‘s suggestion that some of the injuries could have been caused by someone falling off a bed and hitting their face on the floor.¹³

In his defense, Appellant testified that he and Jade had a good relationship, the choking was consensual, and that Jade‘s death was an accident. According to Appellant, they did not discuss what kind of sexual activity they would engage in beforehand, nor did he specifically ask Jade for her consent before he choked her. But he suggested it was consensual because “she moaned” when he “grabbed her by the throat” and “she didn‘t object to anything like that.” Not only that, but he told the jury that they had sex multiple times that night and each time they engaged in erotic asphyxiation. The last time, Appellant claimed, he blacked out while his hands were around Jade‘s neck. He testified that the last thing he remembered was that he was near completion when he “saw a million little black dots” and then he woke up on the floor covered in urine with Jade‘s motionless body lying next to him. Once he realized she was unconscious, he panicked and tried to resuscitate her. But when that failed, Appellant understood that Jade was dead. Appellant testified that he then tried to call for help but his cell phone was dead and the phone in the room also did not work. He then went into a panic and was “hallucinating” from all the drugs he had consumed. He sat in the bathtub where he continued to get high. He stated that he then “destroyed the room” by tearing up the phone book and throwing things around the room because his plan was to light a fire and then kill himself. Eventually, after going home to say goodbye to his family, Appellant changed his mind about killing himself and returned to the hotel to call 911.

In viewing the totality of the evidence in this record, we conclude that this consideration weighs heavily against a finding of harm here. The State‘s case for guilt was exceedingly strong. While merely circumstantial, the evidence that Appellant was in possession of violent pornography depicting rape and necrophilia supported the State‘s theory that his deviant sexual fantasies went far beyond mutual and consensual erotic asphyxiation. The testimony of Appellant‘s girlfriend indicating that she and Appellant would frequently engage in consensual choking signaled that Appellant was experienced with this sexual behavior and would have known when to stop choking someone to prevent irreversible damage. The medical testimony of Dr. Peerwani all but foreclosed the possibility of an accidental killing here. He testified that the types of injuries Jade suffered would have required a compressive force strong enough to break her cartilage and cause hemorrhaging of the neck muscles. The force would have had to be sustained for three to five minutes to cause her death, with two of those minutes occurring after she had lost consciousness. Based on the severity of the injuries involved, Dr. Peerwani testified that in his view this type of killing would “always” amount to a homicide and could not be the result of an accident. The additional non-fatal injuries to Jade‘s face were also strongly suggestive of a violent struggle between her and Appellant. This was further supported by the self-inflicted scratches to her neck resulting from her desperate attempts to release Appellant‘s grip. Finally, other circumstantial evidence reflected Appellant‘s consciousness of his guilt: his failure to call for immediate help; his breaking of Jade‘s phone; his avoiding answering Jade‘s mother‘s calls and texts; his lying to the police officer who pulled him over; and his plans to burn the hotel room.

In contrast to the State‘s compelling evidence, the probative value of Appellant‘s defensive testimony was plainly weak. Despite his claim that Jade‘s death was accidental, Appellant‘s testimony did not describe an accident. It is true that he claimed he did not intend to harm Jade while he was conscious, but Appellant also said that he was unsure what happened after he blacked out as a result of his drug intoxication. Because he had blacked out, Appellant‘s testimony did not (and indeed, could not) clearly assert that, as the strangulation was occurring, he had no intent to cause Jade harm or kill her. He never testified, for example, that he failed to realize Jade was in distress or had lost consciousness, nor did he say that he thought it was safe to continue choking Jade for a short time even after she passed out but that he planned to stop before she was harmed. Instead, Appellant merely testified that he choked Jade during sex, he blacked out, and the next thing he knew she was dead. Viewed on the whole, Appellant‘s testimony did not provide an explanation for how Jade “accidentally” died of manual strangulation. Thus, even if the jury believed Appellant‘s testimony, his version of events was not exonerating because his testimony did not address his mental state at the moment Jade died.

In sum, taking into consideration the probative weight of all the evidence in the record, this factor does not support an actual-harm finding. See Villarreal v. State, 453 S.W.3d 429, 436–40 (Tex. Crim. App. 2015) (concluding that, although the purported charge error related to the “primary contested issue at trial,” the second Almanza factor weighed against finding egregious harm given “the relative weakness of the defensive evidence in light of the entire record” and the fact that the appellant‘s self-defense claim was “contradicted by the entirety of the record“).

3. Arguments of counsel

Under the third Almanza factor, an appellate court must consider the arguments of counsel. Almanza, 686 S.W.2d at 171.

During closing arguments, both the prosecutor and defense counsel focused on intent. The crux of the prosecutor‘s argument was that Appellant intended to harm Jade to fulfill his deviant sexual fantasies. He explained that the lesser-included charges (manslaughter and criminally negligent homicide) are meant for accidents, but he then reviewed the evidence and argued that there was no evidence that Jade‘s death was accidental. He continued:

We don‘t know exactly what transpired in that room, but you have a pretty good idea, because you saw that video and you saw what he thinks is appropriate with women. You saw that he likes to fantasize and watch people, hopefully acting, get murdered. It‘s just so unfortunate for [Appellant] that he ends up in a room with a girl who dies the exact same way as the pornography he enjoys to watch [sic]. This is not an accident. This is an intentional act.

Defense counsel agreed with the State that “this case comes down to intent,” and he directed the jury‘s attention to Appellant‘s lack of motive. He largely argued that this was risky behavior, but it was not murder because there was no evidence that Appellant intended to harm Jade: “There was no intent and there‘s been no evidence of any intent, that Mr. Campbell intended to cause her death or intended to cause serious bodily injury to her.” Rather, defense counsel insisted, “It was an accidental death.”

In rebuttal, the prosecutor reminded the jury that Dr. Peerwani testified that it takes three to five minutes to strangle someone. To illustrate this, he asked the jury to look at a photo of Jade for five minutes while he walked them through Jade‘s death using Dr. Peerwani‘s timetable: After 45 seconds, Jade began to realize that something was wrong and she started clawing at Appellant‘s hands; at two-minutes Jade began to get light-headed; Jade lost consciousness at the three-minute mark, during which her brain was deprived of blood and her face began to turn purple; and at the five-minute mark Jade was officially dead. To close, the prosecutor said, “Remember those five minutes. Not a five-minute long accident. It was a five-minute long murder.”

Thus, the State never argued that Appellant could be convicted based solely on his intent to engage in the conduct. Instead, the jury arguments focused on whether Appellant intended the result—i.e., causing Jade serious bodily injury or death. Therefore, the jury arguments undoubtedly helped to remedy the alleged error in the charge. See French v. State, 563 S.W.3d 228, 238 (Tex. Crim. App. 2018) (noting that the State‘s final arguments focused the jury‘s attention such that the charge error was harmless); see also Gelinas v. State, 398 S.W.3d 703, 709 (Tex. Crim. App. 2013) (noting that “we have determined that jury arguments bear significantly on an Almanza analysis“). We conclude that this factor weighs against a harm finding.

4. Any other relevant information

Finally, the last Almanza factor allows us to consider any other relevant information as revealed by the record as a whole. See Almanza, 686 S.W.2d at 171. Having reviewed the record, we find no other relevant information that warrants consideration. Accordingly, this factor neither weighs in favor of, nor against, finding harm.

5. The Almanza factors together

Assuming the jury charge provided an erroneous definition for “intentionally” because it was improperly tailored to the result-of-conduct offense at issue, we conclude that on this record Appellant was not harmed by any such error.

As noted above, we do not, however, entirely agree with part of the court of appeals’ rationale for reaching the same conclusion. The court below reasoned in part that, in a case with alternative manner and means as well as alternative mental states, absent some certainty that the jury relied on the erroneous instruction in convicting the defendant, any harm is merely theoretical. Campbell, 625 S.W.3d at 677. Like Chief Justice Gray, we believe such reasoning improperly heightens the standard for establishing “some harm” in this context and would, in practical terms, all but foreclose a finding of harm for this type of error. See id. at 679 (Gray, C.J., dissenting). Nevertheless, for all the reasons we have already noted in our analysis above, we disagree with Chief Justice Gray‘s ultimate determination that the charge here, if erroneous, resulted in some harm requiring reversal. Through consideration of the full Almanza factors, it is apparent that any harm to Appellant as a result of the error was merely theoretical. Indeed, the record reveals that this is an instance in which: (1) the application paragraph of the charge limited the jury‘s consideration to the appropriate portion of the culpable mental state definitions; (2) the State presented compelling evidence of Appellant‘s guilt, in contrast to Appellant‘s defensive evidence which was weak and contradicted by the entire record; and (3) the parties focused their arguments on whether Appellant intended the result in causing Jade‘s death. Accordingly, in view of the totality of the record as Almanza requires, we conclude that Appellant was not actually harmed by the alleged charge error.

IV. Conclusion

After considering the alleged jury-charge error in this case in light of the Almanza factors, we hold that any such error did not result in some harm to Appellant. We, therefore, affirm the judgment of the court of appeals.

DELIVERED: September 21, 2022

PUBLISH

Notes

This description of the events leading up to Jade‘s death is based largely on Appellant‘s defensive testimony. Because Jade was the only other person who could have testified to some of these facts and she was deceased, some aspects of Appellant‘s testimony went more or less unchallenged. Although we have relied on Appellant‘s testimony for portions of the background facts, we readily acknowledge that the jury would have been free to reject any part of Appellant‘s testimony if it determined such testimony to be lacking in credibility.

To corroborate his testimony, Appellant offered into evidence numerous Facebook Messenger messages between Jade and himself in which the two discussed this arrangement. On the other hand, Jade‘s mother testified that Jade indicated Appellant was loaning her money for her car payment and did not mention anything about the money being in exchange for sex. To the extent the evidence was conflicting on this point, we need not resolve any conflict here but simply take note of it for purposes of completeness.

The alternative culpable mental state for murder (i.e., knowledge) was defined according to the result of Appellant‘s conduct.

The question on which we granted review is as follows: “Did the jury charge in a case that involved autoerotic [sic] asphyxiation that led to the death of one of the participants and a conviction of murder for the other participant, and contained an incorrect definition of ‘intentionally,’ which allowed the jury to find the Appellant guilty merely by finding that he intended the action, rather than intending the result, cause harm[?]”

The definitions of the culpable mental states for the lesser included offenses (recklessness and criminal negligence) were limited to the result of conduct. They read as follows:

A person acts recklessly, or is reckless, with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. . . .

A person acts with criminal negligence, or is criminally negligent, with respect to the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the result will occur. . . .

In Patrick, we relied on Hughes to reach the same conclusion—i.e., that although the jury charge in Patrick‘s capital murder trial included “definitions of ‘intentionally’ and ‘knowingly’ [that] indiscriminately set forth the three alternative conduct elements,” the application paragraph eliminated any harm stemming from the error because “when those terms are viewed in their factual context, it becomes apparent which conduct element applies to which element of the offense.” (citing ). Thus, Patrick provides further support for our determination that the application section ameliorated the alleged charge error in this case.

Jade‘s mother testified that, on that morning, Jade had gotten into a fight with her boyfriend, Randy. Randy had taken some of Jade‘s money that she needed to make her car payment, and Jade was upset and crying. Jade told her mother that Appellant agreed to loan her the $300 she needed for her car payment. In contrast, Appellant testified that the money was not a loan but was instead intended to be payment in exchange for sex.

This view was shared by the paramedic who arrived on scene, who testified that Jade was “very cold” to the touch. A detective on the scene noted that Jade‘s body was showing signs of lividity, which occurs after death when the blood “pools to the lowest part of the body and creates a purple spot similar to a bruise[.]” Jade‘s body showed lividity on both the front and back, which indicated “that she had been deceased for a while and then [that] she had been moved or turned over enough and for long enough for lividity to form on the other side of her body.”

Appellant acknowledged in his testimony that he had broken Jade‘s phone at some point after her death. Appellant could not provide any explanation for why he broke Jade‘s phone, aside from the fact that he was panicking and was very high on drugs.

These videos were stored on an SD card found in Appellant‘s bedroom. Officers seized the SD card during a search of Appellant‘s home following his arrest.

Specifically, she testified that she had allowed Appellant to choke her at times during sex but that on occasion it went “a little bit too far.” She testified that during the incident when she lost consciousness, when she awoke, Appellant was still having sex with her and still had his hands on her throat.

In addition, Dr. Peerwani noted that Jade had contusions of the lower extremities that “could have been very well produced by her stumbling and falling down.” He noted, however, that some of these contusions were at least 18 hours old based on the yellow color of the bruising and probably occurred at some time before her death.