VIGIL v. STATE (2026)

OPINION

A jury found appellant Mark Anthony Vigil guilty of capital murder. Tex. Penal Code Ann. § 19.03. The trial court assessed punishment of life imprisonment. Tex. Penal Code Ann. §§ 19.03(b) (capital felony); 12.31(a). In two issues, appellant argues: (1) the evidence was legally insufficient to support the State's theory that appellant intentionally or knowingly murdered two people during the same criminal transaction and (2) the evidence was legally insufficient to establish that appellant committed murder during the immediate flight from the attempted burglary.

Having reviewed the evidence in the record, we conclude that the appellant's conviction for capital murder is not supported by legally sufficient evidence on either of the State's two theories. However, after reviewing the evidence, we reform the judgment to reflect a conviction for murder and affirm the trial court's judgment in part, as modified, and reverse and remand, in part, to the trial court for a new punishment hearing.

I. Background

On November 17, 2022, appellant, who was 18-years old at the time, drove to an apartment complex in unincorporated Galveston County, near Kemah, with his friends, 16-year old Gabriel Cantu and 17-year old complainant Josh Rojas. At the time of trial, Gabriel was an adult and testified about the sequence of events that occurred at the apartment complex.

Gabriel testified that he and Josh were close friends. On the night of the shooting, he recalls having been at Josh's place since the night before. Appellant came over to Josh's house and then suggested they leave. Gabriel testified that he initially did not know where they were going, though he found out after appellant started driving. Appellant drove to the apartments and then backed his vehicle into a parking space by the lake adjacent to the complex.

Gabriel testified that Josh had two guns: a 9-millimeter pistol and a .38 revolver. He recalled that Josh brought both guns with him to the apartments.

The trio then got out and walked to building two, and then up to the third floor. They were going to the apartment of a person named Ethan Maldonado, who was in the midst of a dispute with appellant. According to Gabriel, appellant allegedly knocked on the door and then decided to shoot the door with Josh's revolver. Gabriel testified that appellant had both the revolver and a rifle at the time. Appellant then asked Josh to shoot the door with his pistol. They tried to open the door, but when it would not open the trio took off running. Before they started running, appellant handed Gabriel the revolver.

Gabriel recalls they were running back to appellant's vehicle when appellant asked them to look for Maldonado's vehicle. Gabriel testified that appellant found a vehicle he recognized as Maldonado's and then told them to shoot. According to Gabriel's testimony, all three of them were shooting at the vehicle. Gabriel testified that he was in front of Josh and that appellant was behind Josh. While they were shooting at the vehicle, Josh started to scream that he had been shot. The trio then ran to appellant's vehicle. While they were getting in, a resident of the apartment complex, Richard Rocco, approached the passenger side of the vehicle and tackled Josh. He told him to get down and stay down. Rocco, a 54-year old military veteran who also lived in building two, had no prior involvement with appellant or either of his friends.

Appellant then got out of his vehicle and told Rocco to get off of Josh. Gabriel testified that Rocco told appellant, “You don't got the balls to shoot me, boy.” Appellant then shot Rocco with the rifle “too many times to count.” Josh got up and got in the front seat of appellant's vehicle. Rocco died of his injuries onsite.

Gabriel recalls that Josh started to bleed from his lower back. He asked to be taken to the hospital and Gabriel pleaded with appellant to go to the hospital, but appellant refused. Appellant ultimately returned to Josh's apartment in South Houston, and Gabriel immediately ran inside to tell Josh's father. Josh's father came out of the apartment and took appellant's keys from him in order to get medical help for his son. Gabriel and appellant then went up to Josh's apartment where they remained until the police arrived. Gabriel testified that he initially told the police a story that appellant had fabricated while driving home about being caught in a shooting in South Houston.

The case was tried to a jury in September 2024 and the jury found appellant guilty of capital murder. Appellant timely appealed his conviction.

II. Analysis

A. Standard of review

The Due Process Clause of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. Braughton v. State, 569 S.W.3d 592, 607 (Tex. Crim. App. 2018); see also Jackson v. Virginia, 443 U.S. 307, 315–16 (1979); U.S. CONST. XIV, § 1. In assessing the sufficiency of the evidence to support a criminal conviction, “we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); see also Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). We measure the evidence by the elements of the offense as defined by the hypothetically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

We may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the jury. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the jury's resolution of any conflicting inferences from the evidence and presume that it resolved such conflicts in favor of the judgment. Jackson, 443 U.S. at 326; Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014).

B. Capital Murder

As a predicate to charging capital murder, the Penal Code requires that a defendant commit murder as defined under § 19.02(b)(1). See Tex. Penal Code Ann. § 19.03(a). Under § 19.02(b)(1), the mens rea element requires that the accused must have intentionally or knowingly caused the death of the victim. That predicate murder is then aggravated to capital murder where any one of ten additional circumstances is present. Tex. Penal Code Ann. § 19.03(a)(1)–(10). The State's first theory alleged that appellant intentionally caused the death of complainant Rocco, by shooting Rocco with a firearm while appellant was in the course of committing or attempting to commit the offense of burglary of a habitation. Tex. Penal Code Ann. § 19.03(a)(2). The State's second theory alleged that appellant intentionally or knowingly caused the death of an individual, complainant Rocco, by shooting Rocco with a firearm, and intentionally or knowingly causing the death of complainant Josh Rojas, by shooting Josh with a firearm in the same criminal transaction. Tex. Penal Code Ann. § 19.03(a)(7).

When a statute sets out several ways an offense can be committed, each of which embraces the same definition, is punishable in the same manner, and is not repugnant to any other, the various methods of commission are not distinct offenses, and may be charged in the same indictment. See Jurek v. State, 522 S.W.2d 934, 941 (Tex. Crim. App. 1975). The State need not elect between the various theories alleged; rather, the jury may consider all theories and return a general verdict of guilty. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).

C. Evidence

The State presented over twenty witnesses at trial. As appellant challenges the sufficiency of the evidence presented by the State, we consider the evidence in the record.

1. Testimony from residents

Tracie Molik, a resident of the apartments, testified that she was awakened around 11:30 pm to gunshots or bangs. She had a large window that faced the parking lot between buildings one and two. She could see a white vehicle with the trunk open and someone was rifling in the trunk of the vehicle. There were two people standing behind the passenger side near the rear of vehicle that were fighting, wrestling or perhaps jostling. Then Molik heard another six to eight shots. She did not see anyone else but the three people in her view and they did not react to the shots. She then saw a green vehicle speed off. One of the persons that had been fighting went off into the darkness and out of Molik's view. The person who had been standing by the trunk came to the driver's side of the vehicle and then someone got in behind him. Then, the driver got out and went around to the passenger behind the vehicle and lifted something or someone into the backseat. Molik said the vehicle went off slowly and then paused for a moment as if “the driver was concerned about someone or something in the back.” Then, the driver turned back and headed out the toward the front gate.

2. McKayla Turco

McKayla Turco lived in building two in November 2022. Her name was on the lease for the apartment. She was living with her then boyfriend Ethan Maldonado who had a key to the apartment. Around 1 a.m., she woke up to the sound of loud bangs. It sounded as if they were either in her building or the next building. She heard three specific shots go off. But because she needed to get up early for work the next day, she decided to mind her own business and go back to sleep. Around 3 a.m., there was banging on her door and Ethan went to open the door but could not get it open. The police forcibly opened the door when she and Ethan were unable to open it. When she was taken out for questioning, she could see someone had shot up her vehicle. She was unable to drive her vehicle after that. She testified that no one entered her apartment.

3. Disturbance call in South Houston

John Wang, a patrol deputy for the City of South Houston, testified that he was dispatched to a large disturbance call in the City of South Houston. The owner of the apartment, Josh's stepmother, allowed officers into the apartment to speak with the individuals who were alleged to have caused the disturbance. One of the individuals was appellant and the other was Gabriel. An AR-15 Radical 5.56 rifle was found in appellant's backpack. They both had blood on their hands, arms and clothing. South Houston police detained appellant and Gabriel and started contacting other agencies. South Houston police were informed there was a man at a local hospital that had gunshot wounds that had come from South Houston.

Appellant and Gabriel told officers that they were at the park down the street in South Houston when someone started shooting in their direction. The officers took appellant and Gabriel to the park to look for shell casings, but were unable to locate any.

Officer Wang later went back to the South Houston apartment to retrieve a revolver that Josh's brother had found after it was hidden by Gabriel.

4. Conduct after the apartment shooting

John Rojas testified that his son, Josh, had been living with him for a short time. John knew that his son had two firearms including a .38 revolver and 9-millimeter pistol. Josh always carried a gun on his hip. Josh and Gabriel were close friends and Gabriel often stayed for days at a time. However, the day of the incident was the first time John had ever met appellant.

On the night of the shooting, Gabriel came up to the apartment and told John something had happened to Josh. John found his son in the backseat of appellant's vehicle slumped over. John knew that his son needed immediate medical attention so he took the keys from appellant, and drove his son to the hospital. John placed his son in the front seat and then carried him into the emergency room. Josh later died of injuries.

Angela Wren, who was then in a relationship with Josh's father, testified. After Gabriel told John that Josh had been shot, Gabriel and appellant came up to the apartment. Gabriel and appellant brought a backpack up to the apartment that was later taken by the police. Appellant whispered to Angela that “I shot him. I shot him with an AK-47.”¹ However, he would not tell her who had been shot. She knew that Josh carried guns. Her son also found a “cowboy” gun in the bathroom that they gave to police officers later. She testified that the cowboy gun belonged to Josh and she had seen him carrying it around.

Jai'lynn Phillips, who was friends with appellant, testified at trial. Phillips also knew Josh and Gabriel to varying degrees. Phillips admitted he received a call from appellant on the night of the shooting and was aware Josh was injured. Phillips recalls telling appellant to take Josh to the hospital. Phillips was not very forthcoming in his testimony although he admitted that appellant texted a picture of Maldonado's door at the apartments to him on the night of the shooting and described Maldonado as a “rat.” Detectives who previously interviewed Phillips proved up text messages from appellant on Phillips' phone that reflect around 11:30 pm on the night of shooting, appellant texted Phillips “I need you Bro[,]” followed by “Now Call Now.” Phillips later responded “Tell 12 what happened that someone tried to kill y'all”; “Take him to the hospital”; “You can beat this”; “You gotta tell them what happened so you don't go to jail”; and “It was self defense bro.”

5. Medical examiner's report

Dharsan Patak is a medical examiner for Harris County. He testified that Rocco died of multiple gunshot wounds.

Josh died of a single gunshot wound to the back. The medical examiner testified that the bullet was travelling sharply from left to right. Patak said the gunshot wound was lethal, but it is possible Josh could have survived if he had received immediate medical attention. Josh also had some minor blunt force injuries like abrasions to his scalp and knee. The entrance wound for the bullet reflects that Josh was shot at a range exceeding three feet. No bullet was found in Josh's body.

6. State's forensic evidence

The Galveston County Sheriff's investigator testified that a total of three 9-millimeter shell casings were found at the apartment complex. One of those casings was recovered from the third-floor breezeway near Maldonado's apartment. A piece of jacketing was found inside Maldonado's apartment. Another 9-milleter casing was found on the first floor of Maldonado's apartment building, and although they don't know, investigators agreed it could have fallen from the third floor. The third 9-millimeter casing was found near the vehicle that was shot. Ballistics testing confirmed that the three 9-millimeter casings, as well as the jacketing found inside Maldonado's apartment, were fired from Josh's 9-millimeter pistol based on consistent and repeatable patten areas of marks.

The investigator testified that two of the four rounds in the revolver had been fired. Because a revolver keeps its casings inside the chamber (as opposed to expelling the casings), investigators were unable to determine where or if the revolver was used at the apartments. Rifles do expel their casings. Therefore, if the rifle had been used to shoot Maldonado's apartment, investigators would have found rifle casings nearby.

Near the parking lot where Maldonado's vehicle was shot, there were 10 rifle casing found in a grassy area between the building and the parking area. Next to the curb adjacent to Maldonado's vehicle, one of the 9-millmeter pistol casings was found as well as a jacketing.

In the diagram below, numbers 4 and 5 are the jacketing and pistol casing associated with the 9-millimeter pistol. All the other numbers reflect rifle casings. Testimony from the investigator and the diagram below gave general context for the locations of appellant and Josh when they were shooting Maldonado's vehicle (which is the vehicle closest to number 4 in the diagram).

Blood stains were found across the parking lot between the location where Maldonado's vehicle was parked and where appellant's vehicle was parked. Some of those bloodstains were tested and the DNA came from a single source with Josh being the most likely contributor.

Appellant had parked his vehicle next to a pond adjacent to the apartment complex. Immediately behind the parking area was a gravel path. Signs of the struggle between Rocco and Josh were found on the gravel path including sandals, a jacket, and a lighter. Josh's 9-millimeter pistol was left at the scene. Several rifle casings and one rifle round were found in the area where appellant's vehicle was parked and adjacent to the gravel path. Ballistics testing confirmed that all the rifle casings collected were fired from appellant's rifle based on consistent and repeatable patten areas of marks.

Blood stains were found on the grass next to the gravel area, which were found to come from a single DNA source with Rocco being the most likely contributor and Josh being excluded as a contributor. The DNA from the bloodstains helped investigators determine when in the sequence of events Josh was shot.

Fingerprint analysis found four sets of prints on the 9-millimeter pistol and Josh was identified as the source of the prints. No suitable prints were found on the revolver. Although some suitable prints were found on the rifle, they did not match appellant, Josh, Gabriel, or Rocco. DNA analysis similarly reflects that Josh's DNA was found on the 9-millimeter pistol and Gabriel and appellant were excluded. The rifle contained DNA of both appellant and Josh. Although Josh's DNA was present in a stain on the stock of the rifle, expert analysis also supports a conclusion that appellant handled the rifle. DNA testing was done on the revolver. The DNA found on the revolver was determined to be a mix of four individuals, with Josh and Gabriel being possible contributors. Appellant was excluded as a possible contributor.

D. Murder of two people in the same criminal transaction

In his first issue, appellant argues that the trial court erred by denying his motion for directed verdict in which he challenged the sufficiency of the evidence to establish that he knowingly or intentionally killed two people during the same criminal transaction. This argument is a legal sufficiency challenge to one of the two theories of manner and means argued by the State for capital murder in the indictment.

Although appellant does not challenge that the killing of Rocco was intentional, he asserts there is no evidence that Josh was shot intentionally or knowingly. Appellant explains that the evidence reflects that he was shooting at Maldonado's vehicle at the time, and there was no evidence to establish that he knew or intended to kill Josh. Appellant argues the State did not meet its burden to prove that appellant knowingly or intentionally killed two people.

1. Mens rea requirement

The Penal Code provides definitions of the culpable mental states. “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.” Tex. Penal Code Ann. § 6.03(a). Similarly, 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.” Tex. Penal Code Ann. § 6.03(b).

In Koah v. State, the Court of Criminal Appeals explained that “the distinction between knowing and intentional is narrow ․ there is little difference between one who wills a particular result and one who is willing for it to occur ․ The formulated distinction between intentional and knowing, as to results, is thus between desiring the result and being reasonably certain that it will occur.” Koah v. State, 604 S.W.2d 156, 160 n.1 (Tex. Crim. App. 1980) (citing Practice Commentary to Tex. Penal Code Ann. § 6.03.). The mental state “knowingly” does not refer to the defendant's knowledge of the actual results of his actions, but knowledge of what results his actions are reasonably certain to cause. Howard v. State, 333 S.W.3d 137, 140 (Tex. Crim. App. 2011).

2. State's argument for the murder of two people

At trial, the State responded that, based on the diagrams showing the rifle casings, Josh was in appellant's line of fire when he was shooting at the vehicle. Therefore, the State argued that appellant either intentionally or knowingly caused Josh's death, and the fact that it was an accident did not preclude appellant's culpability.

In its appellate briefing, the State focuses on the “knowing” culpability requirement and maintains that the trial court did not err because the conviction can be upheld on appellant's knowledge (without a showing of intent) that his conduct was “reasonably certain” to cause Josh's death. Therefore, the State argues a jury could reasonably find that appellant “knowingly” shot Josh when appellant fired his rifle in the direction of Maldonado's vehicle. Further, the State highlights evidence supporting the conclusion that appellant shot Josh. Although there were no bullets found in Josh's body, the State asserts that the evidence supports the conclusion that appellant shot Josh. The State cites testimony from the Angela Wren (who described herself as like a stepmother to Josh) that appellant allegedly told her “I shot him. I shot him with an AK-47.” Gabriel's testimony put appellant close behind Josh, and Gabriel prepared a hand drawn diagram that shows appellant close behind Josh but slightly to the left. However, Gabriel also testified that Josh was shot accidentally.

The State all but concedes that the shooting of Josh was accidental but asserts mens rea for murder exists because appellant should have had knowledge that by firing his rifle at Maldonado's vehicle that he was reasonably certain to strike Josh. However, the State's argument seems to conflate the culpable mental state of “reckless” with “knowing” arguing that appellant was aware that his rifle was capable of inflicting serious bodily injury and death. See Tex. Penal Code Ann. § 6.03(c) (“A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.”). The State further highlights that appellant's conduct after leaving the apartment complex reflected that “[a]ppellant did not consider Josh's life to be a matter of top priority.”

Intent can be inferred from the acts, words, and conduct of the accused. Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980). It may also be inferred from the extent of the injuries and the relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). There is no evidence in the record that appellant intended to kill or cause serious bodily injury to Josh. Therefore, we must decide whether there is evidence that appellant had knowledge that his actions were reasonably certain to cause death or serious bodily injury to Josh.

3. Evidence does not establish appellant's knowledge

The medical examiner's testimony established only that Josh was shot at a range exceeding three feet and that the bullet that struck Josh was travelling sharply from left to right. There is no specific information in the record about the distance between or positions of appellant and Josh. The diagram prepared by the Sheriff's Department (shown above) provides approximate general locations for the rounds fired by Josh and appellant but is clearly marked as not to scale. Testimony at trial also explained that shell casings can move and roll. Even assuming the casing and jacketing for the pistol approximate Josh's location, and the rifle casings approximate appellant's location, the diagram does not offer any evidence as to the angles or line of fire for either individual. Further, there is no information as to whether Josh changed his position at any point after appellant started firing.

The jury also heard Gabriel's testimony about the shooting. Gabriel recalled that Josh was near the sidewalk and appellant was “close” behind Josh. However, Gabriel explained that he was in front of Josh, so Gabriel first became aware that Josh had been shot when he heard Josh scream. Gabriel did not see the incident, nor did he provide any testimony to establish that Josh was so clearly in appellant's line of fire that appellant was reasonably certain that he would shoot Josh. The fact that appellant did shoot Josh is not evidence that he shot at Maldonado's vehicle with knowledge that it was reasonably certain Josh would be injured or killed. See Louis v. State, 393 S.W.3d 246, 251 (Tex. Crim. App. 2012) (“Capital murder is a result-of-conduct offense; the crime is defined in terms of one's objective to produce, or a substantial certainty of producing, a specified result, i.e. the death of the named decedent.”) (internal citation omitted).

Appellant and Josh were friends. Josh accompanied appellant to the apartments in order to support appellant in whatever dispute appellant was attempting to resolve with Maldonado. After the trio was unable to rouse Maldonado or enter his apartment, they ran away. Appellant saw what he believed to be Maldonado's vehicle, and told his friends to stop and shoot the vehicle. All three started shooting at the vehicle although Gabriel testified he did not succeed in shooting the revolver. Other than the fact of the shooting itself, there is no evidence in the record suggesting that appellant knew that Josh was within his firing or striking range.

Appellant's conduct after shooting Josh is instructive. Appellant did not leave Josh at the apartments. The trio attempted to return to appellant's vehicle. When Rocco approached and tackled Josh, appellant demanded that Rocco release his friend. When Rocco challenged appellant, appellant fired his rifle repeatedly into Rocco. Appellant's behavior in defending Josh from Rocco's attack is not consistent with a person who acted with intent or knowledge that his actions would cause serious bodily injury or death to his friend.

As the State points out in its briefing, there is evidence in the record that appellant refused to take Josh to the hospital for immediate medical attention. Testimony from Gabriel, as well as the call made by appellant to Phillips on the night of the shooting, reflects that appellant was very concerned about getting into trouble. Although he never took Josh to a hospital, appellant did take Josh back to his home and did nothing further to harm Josh. This is not legally sufficient evidence that appellant was reasonably certain his shooting of Maldonado's vehicle would result in death or bodily injury to Josh.

Gabriel did not testify directly as to appellant's knowledge. Therefore, the evidence in the record from which the jury had to make their inferences was the locations of the shell casings left by appellant and Josh when they were firing their guns. However, this evidence (and the related diagram) does not tell us what direction appellant or Josh were firing, or whether either of them changed positions. It also does not tell us how far apart they were. Viewed in light of the totality of his actions, the evidence supports, at best, that appellant disregarded a substantial risk Josh might be hit, i.e. reckless conduct, not that he was aware his conduct was reasonably certain to cause Josh's death, as “knowing” requires. Or, in other words, the State's proof, at its best, establishes appellant knew that firing a rifle toward a vehicle was dangerous but does not show he was aware his conduct was reasonably certain to kill Josh specifically.

The State's theory that appellant, while committing an inherently dangerous felony, accidentally shot and killed an accomplice, more accurately fits within the felony murder paradigm of Penal Code section 19.02(b)(3), and not the “intentional or knowing” result-of-conduct offense of capital murder as defined in Sections 19.02(b)(1) and 19.03(a). Tex. Penal Code Ann. §§ 19.02(b), .03(a). The Legislature has not included felony murder as a qualifying act for purposes of capital murder. See Tex. Penal Code Ann. § 19.03(a). We cannot agree with the State that its repackaging of felony murder as capital murder is consistent with legislative intent.

Because there is not legally sufficient evidence of two intentional or knowing murders to support one of the State's two theories of capital murder, we sustain issue one.

E. Commission of a burglary and murder in the same criminal transaction

In issue two, appellant argues that the State's second theory of liability—that appellant committed murder and a burglary in the same criminal transaction—was not supported by sufficient evidence. Specifically, appellant argues that the shooting of Rocco was not in the immediate flight from a burglary, but rather from the criminal mischief incident of shooting at vehicles. In summary, appellant argues the criminal mischief episode was an intervening event, which was not in furtherance of the burglary, and they were not part of the same criminal transaction.

The State disagreed and argues that the evidence supports a rational finding that an attempted burglary occurred and that appellant shot Rocco while in “immediate flight” after the attempted burglary. A person commits the offense of burglary if “without the effective consent of the owner, the person: (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” Tex. Penal Code Ann. § 30.02(a). The Penal Code defines “enter” to mean to intrude: (1) any part of the body; or (2) any physical object connected with the body. Tex. Penal Code Ann. § 30.02(b).

Gabriel testified that appellant knocked on the door and when no one responded that appellant and Josh fired at the door. After two shots were fired, appellant tried the door and was not able to open the door. The forensics investigation revealed that there was a jacketing found from the 9-millimeter pistol in Maldonado's living room and a defect in the door also made by the 9-millimeter pistol. Assuming that the State met its burden on the elements of burglary, there is no evidence supporting the State's burden to show that the burglary and the murder of Rocco occurred in the same criminal transaction.

The Penal Code requires for the offense of capital murder that a person must intentionally commit “murder in the course of committing or attempting to commit ․ burglary[.]” Tex. Penal Code Ann. § 19.03(a)(2). Appellant challenges the State's argument and evidence that Rocco was murdered in the same transaction as the attempted burglary. See Griffin v. State, 491 S.W.3d 771, 776 (Tex. Crim. App. 2016) (“Section 19.03(a)(2) contains no general requirement that in order to constitute capital murder, the murder must be committed to facilitate the underlying felony offense”).

The Court of Criminal Appeals has held that as used in Texas Penal Code section 19.03(a)(2), “in the course of committing” is defined as conduct occurring during an attempt to commit, during the commission of, or in immediate flight from, the forbidden behavior. E.g., Griffin, 491 S.W.3d at 774–75; Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993). Although the evidence is clear that Rocco was not murdered during the attempt to commit burglary, we consider whether the State is correct that appellant killed Rocco during the immediate flight from the attempted burglary.²

“Immediate flight” is not defined in the Penal Code, but Black's Law Dictionary defines “immediate” as “[o]ccurring without delay; instant,” “[n]ot separated by other persons or things,” or “[h]aving a direct impact; without an intervening agency.” Immediate, Black's Law Dictionary (12th ed. 2024); Sweed v. State, 351 S.W.3d 63, 69 n.5 (Tex. Crim. App. 2011). Here, the undisputed evidence in the record shows that appellant and his friends did not simply continue a direct, uninterrupted escape from the attempted burglary.

Instead, after abandoning their effort at the apartment door, they halted their flight to their getaway vehicle, actively turned their attention to the complex, searched for what appellant believed to be Maldonado's vehicle, and then deliberately chose to remain on the scene long enough to fire multiple rounds at that vehicle. This deliberate decision to stop their immediate flight, re-engage, and undertake a new round of criminal conduct in the parking lot constitutes a distinct intervening episode. That intervening episode breaks any continuous, immediate chain of events between the attempted burglary at the apartment door and the later confrontation with Rocco near appellant's vehicle. Even if Rocco's intervention was to prevent appellant's escape, the escape he was preventing was from the criminal mischief shooting of the vehicle, or vehicles, as there was evidence that Rocco's vehicle was also shot. The record contains no evidence that Rocco was aware of, or was responding to, the earlier attempt to enter Maldonado's apartment.

The State's proof here establishes a homicide that followed an additional criminal act that is separated in time and motivation from the alleged underlying felony, and that is insufficient to transform this homicide into a capital murder. See, e.g., Herrin v. State, 125 S.W.3d 436, 440–41 (Tex. Crim. App. 2002) (evidence of capital murder was insufficient when there was no evidence that appellant intended to kidnap victim before or during intentional murder); Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986) (“A killing and unrelated taking of property do not constitute capital murder under 19.03(a)(2): the State must prove a nexus between the murder and the theft”); see also Griffin, 491 S.W.3d at 776 (although murder need not be committed “in furtherance of the underlying felony,” a felony “committed as an afterthought and unrelated to the murder is not sufficient to prove capital murder”). Therefore, we conclude there was no evidentiary support for the jury's finding of appellant guilty of capital murder.

We sustain issue two.

F. Reformation

We now consider whether reformation of appellant's conviction to the lesser-included offense of murder is an appropriate remedy. Thornton v. State, 425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014). The purpose of reformation is “to avoid the ‘unjust’ result of an outright acquittal[.]” Id. at 300. The use of reformation is limited to convicting for lesser-included offenses—not different offenses altogether. Lang v. State, 664 S.W.3d 155, 163 (Tex. Crim. App. 2022); see also Thornton, 425 S.W.3d at 298–99 (“[C]ourts of appeals should limit the use of judgment reformation to those circumstances when what is sought is a conviction for a lesser offense whose commission can be established from facts that the jury actually found.”).

Reformation to the lesser-included offense is required if the reviewing court can answer yes to two questions: (1) in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and (2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense? Lang, 664 S.W.3d at 163. The answer to both questions must be “yes” in order to reform the judgment. If reformation is an appropriate remedy in a particular case, it should be applied regardless of whether either party requested or contested—or whether the jury was actually given—an instruction on the lesser-included offense at trial. Thornton, 425 S.W.3d at 297.

Murder, as defined by section 19.02(b)(2) can be a lesser-included offense of capital murder. See Hudson v. State, 394 S.W.3d 522, 524–26 (Tex. Crim. App. 2013). Under either Penal Code section 19.03(a)(2) or (a)(7), the State must prove appellant committed a murder within the meaning of section 19.02(b)(1). See Tex. Code Crim. Proc. Ann. art. 37.09(1) (“An offense is a lesser included offense if: ․ it is established by proof of the same or less than all the facts required to establish the commission of the offense charged”). Here, the jury was instructed on the lesser-included offense of murder, and we conclude that the jury necessarily found that appellant committed the lesser-included offense of the murder of Rocco. Not only does appellant not challenge the sufficiency of the evidence to show that he intentionally murdered Rocco; our review of record, discussed above, confirms that the evidence was sufficient to enable a rational jury to find that appellant intentionally caused Rocco's death by shooting him multiple times with his rifle. Thus, we reform appellant's conviction to reflect a conviction for murder.

III. Conclusion

We conclude that the evidence does not support a verdict of guilty as to capital murder. However, because the evidence is legally sufficient to establish the lesser-included offense of murder, we modify the judgment of the trial court to reflect a conviction for murder. See Lang, 664 S.W.3d at 174–76; Griffin, 491 S.W.3d at 777; Herrin, 125 S.W.3d at 443–44.

Accordingly, we affirm the trial court's judgment in part, as modified, and reverse and remand, in part, to the trial court for a new punishment hearing. Tex. R. App. P. 43.2(b), (d).

FOOTNOTES

1.   The firearm carried by appellant on the night in question was an AR-15 Radical 5.56 rifle and not an AK-47.

2.   The jury charge did not include any definition on immediate flight. However, we conduct our review of the sufficiency of the evidence based on the hypothetically correct jury charge. Gollihar v. State, 46 S.W.3d 243, 252 (Tex. Crim. App. 2001); Malik, 953 S.W.2d at 240.

Tonya McLaughlin, Justice