LUIS LUNA v. THE STATE OF TEXAS (2026)

OPINION

Luis Luna was convicted of the capital murder of his 8-month-old daughter.¹ He was assessed the mandatory punishment of confinement for life without parole.²

On appeal, Luna concedes that the “evidence shows that [his daughter] died of suffocation.” But he argues that there was “no evidence from which a jury could rationally infer that [he] suffocated her or was responsible for someone else” doing so. He further contends that the trial court reversibly erred in excluding evidence and in its jury charge.

We affirm.

Background

Luna and Ya'Niece Mason were in a dating relationship, and they had a daughter together, S.M. At the time of S.M.'s birth in December 2019, Luna's relationship with Mason had ended. Shortly after, Luna moved into a one-bedroom apartment with four other men—Trevonte and Trevington Moulton, Henry Matthews, and Ladarrean Watson.

In early 2020, Mason and S.M. began visiting Luna at his apartment. And they stayed with him in a sunroom that he used as a bedroom. The sunroom was situated off the living room and was separated by a sliding glass door and curtains. According to Mason, Luna's roommates “never came in there.”

On Friday, August 21, 2020, Luna asked Mason to bring S.M. over to spend the weekend with him. Mason noted that it was the first time Luna had asked her to leave S.M. alone with him. Mason brought S.M. to Luna's apartment, along with a car seat, clothes, blankets, and wipes. Mason testified that S.M. was a healthy 8-month-old child and did not have any major health issues or breathing problems.

On Saturday, August 22, 2020, S.M. visited with Luna's roommates in the living room of the apartment. Roommates testified that S.M. seemed fine and had no injuries. The trial court admitted into evidence a video of S.M. taken that afternoon. In the video, S.M. appears content.

On Sunday, August 23, 2020, S.M. again visited with Luna's roommates. According to Travonte, S.M. appeared healthy and uninjured. He recalled seeing Luna take S.M. into the sunroom later that afternoon. The sunroom door was closed, the curtains were drawn, and he never heard any noise. He did not see anyone else go in or out.

At 3:30 p.m., according to Luna's cell phone records, an unidentified person—referred to as “4”—brought Luna “a gram” of something.

An hour later, Luna contacted Mason and asked to keep S.M. “for a week” so he could take her to visit people on Tuesday. Mason agreed, but asked to come over and bring S.M. more clothes. Luna refused—claiming he was about to leave and take S.M. to visit people that day. Mason asked where Luna was taking S.M. Luna told Mason not to question him.

From 6:00 to 7:30 p.m., Luna visited pornographic websites on his phone. At 9:30 p.m., Mason texted Luna and asked about S.M. and requested a photo. At 11:45 p.m., Luna responded: “stfu yes she good.”

Shortly after, roommate Trevonte, who had been asleep in the living room, awoke to a “bunch of yelling and screaming.” According to Trevonte, Luna came out of the sunroom holding S.M. and screaming “she can't breathe.” S.M. was “lifeless” and her lips were blue. Luna was “frantic” and tried to perform CPR. Trevonte called 911.

According to roommate Matthews, who had also been asleep in the living room, Luna ran out of the sunroom “scared [and] seeking help.” Luna “threw” S.M. on Matthews, “as in, like, help me, help me.” S.M. was laid on the floor, and it seemed to Matthews that her chest was “caving in.”

Roommate Trevington testified that he arrived home at 8:00 or 9:00 p.m. that night, and Luna and S.M. were in the sunroom. The door was closed, and he did not hear any noise. A friend, Ryan Jeng, was in the bedroom playing a game. Trevington went to sleep in the living room and later awoke to Luna “alerting that his baby was not waking up.” Trevington “could tell she wasn't breathing,” and she was “foaming at the mouth.” Luna told him that S.M. was in her car seat and that the straps were too tight.

Roommate Watson arrived home around 11:00 p.m. that night. Luna was in the sunroom with the door closed. And Watson did not see anyone else enter or leave. Thirty minutes to an hour later, Luna came out of the sunroom. He “had the baby in his hand like the cub on Lion King just holding it up,” and “just shaking the baby not just violent, violent.” It was immediately apparent to Watson that S.M. was dead—she was not breathing, and her face was blue.

According to Watson, Luna claimed to have left S.M. in her car seat “accidentally with the straps too tight; and she basically choked.” But S.M. had “like, a belt mark” on her neck—“[l]ike, somebody had tried to tie something real, real, real tight to suffocate” her. And she did not have that mark when Watson saw her earlier that weekend.

Paramedic J. Shivers testified that he was dispatched to the scene at 12:24 a.m. on Monday, August 24, 2020. When he arrived, S.M. had no pulse and was not breathing. Shivers noted “ligation marks around her neck” and what appeared to be “a thermal burn around her mouth”—which was “discolored and white.” Her skin tone was poor and abnormally pale. And her core temperature was “already kind of low”—at 95.9 degrees. He opined that “there had been some sort of prolonged downtime before 911 was called.”

Harris County Sheriff's Office (HCSO) Deputy D. Papa spoke with Luna at the scene. He testified that Luna told him that he was the last person to see S.M. alive. In Deputy Papa's body camera video admitted into evidence, Luna stated that he and S.M. went to sleep at 7:00 p.m. Sunday in the sunroom. S.M. slept in her car seat. And, at 9:00 or 10:00 p.m., Luna woke up and saw S.M. slouched down in her car seat, with the seat belt straps up near her neck, and she was not breathing.

HCSO Deputy J. Ferrell also spoke with Luna at the scene, and his body camera video was admitted into evidence. In the video, Luna stated that, prior to the events, S.M. did not have any health issues or injuries. He noted that S.M.'s breathing had recently seemed “off”—as in, more audible—but he explained that she had been to the doctor, and it was “nothing serious” and “nothing that she need[ed] medication for.”

Dr. J. Ross, an assistant medical examiner at the Harris County Institute of Forensic Sciences (HCIFS), testified that she reviewed S.M.'s medical records. Before the events, according to records from S.M.'s pediatrician, S.M. did not have any significant medical history or respiratory issues. Rather, she was a normal, healthy 8-month-old little girl.

Records from Texas Children's Hospital from the night S.M. died showed that EMS “[n]oted rigoring with contractures and gray color with cold body upon arrival to scene” at 12:38 a.m. S.M. arrived at the hospital at 1:06 a.m. and was pronounced dead at 1:16 a.m. At that time, her body temperature was 89.8 degrees. Emergency room physicians noted that they were unable to intubate S.M. because her jaw was already “rigored shut.” And they observed: “Bruising over forehead. Left cheek appearance of handprint. On left cheek bruising.”

Dr. Ross also observed a “pattern” on S.M.'s face that was “consistent with a slap mark, a handprint mark on the face.” And photos were admitted into evidence. Ross noted that S.M. had bruising and scratches over the majority of her forehead and left side of her head. And the autopsy revealed that S.M. had “bruising on the brain underneath.” Dr. Ross explained that the bruising was consistent with S.M.'s head having been struck with or against an object.

S.M. also had abrasions below both eyes and petechial hemorrhaging on her upper and lower eyelids—which Ross explained was the “best indicator of asphyxiation.” And there were abrasions on her neck in “a linear pattern.” Ross opined that “[s]omething must have been around the neck region to create those.”

S.M. also had “linear markings consistent with a ligature” around her ankles. And Ross opined that “something was wrapped around [S.M.'s] ankles”—“some sort of narrow cord or something or a shoestring.”

Dr. Ross further testified that there were orange-red colored abrasions on the outside of S.M.'s lips and on the insides of her lips—like they had rubbed against her teeth and gums. And she explained that this was consistent with suffocation—putting something over the mouth, but with some movement.

S.M. also had “abundant hemorrhage” or “deep bruising” in the soft tissue of her external genitalia and buttocks. She had chafing and abrasions to the external genitalia, abrasions to her internal genitalia and around her vagina, “abrasion going towards the buttocks,” and tears to her anus. Dr. Ross noted a “large tear at the anus ․ extending towards the vagina.” She testified that these injuries were consistent with “forceful sex” and that “some sort of object” had penetrated S.M.'s sexual organ and anus.

Dr. Ross opined that S.M. died from “multiple blunt force injuries with suffocation and sexual assault.” She opined that S.M.'s death was caused by someone blocking her nose and mouth with a hand or an unknown object; by someone applying pressure to her throat and neck with a hand or object, including a phone charging cable; or by someone striking her head with or against an object or with a hand.

According to Dr. Ross, all of S.M.'s injuries occurred at or near the time of her death. And she opined that S.M. likely died after 1:00 p.m. but before 10:00 p.m. on Sunday, August 23.

Lauren Bauer, a DNA analyst at HCIFS, analyzed a number of items that law enforcement found during a search of Luna's sunroom. And she compared the DNA found on the items to the genetic profiles of known samples obtained from S.M., Luna, Trevonte, Trevington, Matthews, Watson, and Jeng. Bauer also discovered a genetic profile on the items that did not match any of the known samples.

Bauer testified that semen was confirmed on S.M.'s white infant blanket, white blanket with pink owls, and an article of her clothing—a pink “onesie.” And there was “very strong support” that the DNA profile found on the items originated from Luna. Semen was also detected and confirmed in the “inner seat area” of S.M.'s car seat. And there was “very strong support” that the DNA found originated from Luna (45 quadrillion times more likely) and from the unidentified individual (2 trillion times more likely).

Blood was confirmed on a neck gaiter found in the sunroom. And there was “very strong support” that DNA on that item originated from S.M. S.M.'s DNA was also found on a phone charging cord found on the sunroom floor.

Blood and semen were detected on several wipes found in a trash bag in Luna's sunroom and one found on his floor. And there was “very strong support” that the DNA found on several of them originated from S.M., Luna, and the unknown individual.

With respect to each of the items tested, Trevonte, Trevington, Matthews, Watson, and Jeng were excluded as contributors to the DNA found or the results were inconclusive.

Luna was charged with capital murder for causing the death of a person under 10 years of age or by causing a death in the course of committing aggravated sexual assault. The State alleged that Luna caused S.M.'s death by blocking her nose and mouth with his hand or an unknown object; by applying pressure to her throat and neck with his hand, phone-charging cable, neck gaiter, or unknown object; or by striking S.M. with his hand or an unknown object. And the trial court's charge authorized the jury to convict Luna as a principal actor, a party, or a co-conspirator.

The jury found Luna guilty of capital murder as charged in the indictment.³

Sufficiency of the Evidence

In his first issue, Luna challenges the legal sufficiency of the evidence supporting his conviction. He argues that there is “no evidence from which a jury could rationally infer that [he] suffocated [S.M.] or was responsible for someone else” doing so.

A. Standard of Review

We review a challenge to the sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In assessing the legal sufficiency of the evidence under the Jackson standard, “we consider all the evidence in the light most favourable 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.” Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (internal quotations omitted) (citing Jackson, 443 U.S. at 318–19).

In conducting our review, we defer to the responsibility of the factfinder to “fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. (quoting Jackson, 443 U.S. at 318–19). We therefore “may not re-evaluate the weight and credibility” of the evidence or “substitute our judgment for that of the fact-finder.” Id. When the record supports conflicting reasonable inferences, “we presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution.” Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018).

In a legal-sufficiency analysis, we treat direct and circumstantial evidence equally. Isassi, 330 S.W.3d at 638. “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hammack v. State, 622 S.W.3d 910, 914–15 (Tex. Crim. App. 2021). It is not necessary that the evidence directly prove the defendant's guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). If the cumulative force of all the incriminating circumstances is sufficient to support the conviction, each fact need not point directly and independently to guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

“The key question is whether the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.” Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (internal quotations omitted). And our role on appeal is “restricted to guarding against the rare occurrence when a fact finder does not act rationally.” Id. (internal quotations omitted).

B. Applicable Law

A person commits murder if he “intentionally or knowingly causes the death of an individual.” See TEX. PENAL CODE § 19.02(b)(1). A person commits capital murder if he “commits murder as defined under section 19.02(b)(1)” and: “murders an individual under 10 years of age” or “intentionally commits the murder in the course of committing or attempting to commit ․ aggravated sexual assault.” Id. §§ 19.02(b)(1), 19.03(a)(2), (8).

C. Analysis

When a trial court's charge authorizes a jury to convict on more than one theory—as it did in this case—a guilty verdict will be upheld if the evidence is sufficient to support any one of those theories. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Here, the evidence is sufficient to support that Luna, as a principal actor, intentionally caused the death of an individual under 10 years of age. See TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a)(8).⁴

Luna concedes in his brief that “[t]he evidence shows that SM died of suffocation” and that the “injury on her mouth was consistent with someone putting something over her mouth.” He does not challenge the sufficiency of the evidence supporting his conviction generally or supporting that S.M. was under 10 years of age or that her death was intentionally or knowingly caused. See id. §§ 19.02(b)(1), 19.03(a)(8). He argues only that the evidence is insufficient to establish that he is the person who suffocated her. Accordingly, we limit our review to the essential element of identity. See TEX. R. APP. P. 47.1.⁵

Identity may be proven by direct evidence, circumstantial evidence, or by reasonable inferences from the evidence. Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018); Greene v. State, 124 S.W.3d 789, 792 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (“[E]yewitness identification is not necessary.”). Injury-to-a-child cases particularly depend on circumstantial evidence because “there is rarely direct evidence of exactly how the child's injuries occurred.” Bearnth v. State, 361 S.W.3d 135, 140 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (internal quotations omitted). “[W]hen a child is injured in the absence of any witnesses, the critical issue often comes down to timing and who had access to the child at the time of the injuries.” Contreras v. State, No. 08-23-00210-CR, 2025 WL 947999, at *16 (Tex. App.—El Paso Mar. 28, 2025, no pet.) (not designated for publication).

Here, the jury could have reasonably inferred that Luna had sole access to S.M. at the time she sustained her fatal injuries. “Texas case law is replete with holdings that when an adult defendant has had sole access to a child at the time [her] injuries are sustained, the evidence is sufficient to support a conviction for injury to a child, or murder if the child dies.” Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref'd).⁶

Testimony was presented by Luna's roommates that S.M. appeared healthy and uninjured before the events. Dr. Ross testified that S.M.'s medical records reflect that she was a healthy child. And Luna stated on police video that S.M. was “good” at 7:00 p.m., when he and she went to sleep in the sunroom.

All of Luna's roommates testified that Luna and S.M. were alone together in the sunroom at the time she stopped breathing. The apartment was on the third floor and the only means of ingress and egress was through the sliding glass door into the living room. The roommates were asleep in the living room, and none of them saw anyone else go in or out. And when Luna came out of the sunroom with S.M. not breathing, nobody else was with him. Notably, Luna told Deputy Papa that he was the last person to see S.M. alive. See Matthews v. State, 513 S.W.3d 45, 54 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (considering that appellant was last person known to see victim alive).

Luna argues that any inference that he had “sole access” to S.M. is “purely speculative and unsupported” because he went to sleep at 7:00 p.m. the night of the murder and someone else could have had access to S.M. while he was asleep.

But the State is not required to disprove all alternative hypotheses that are inconsistent with a defendant's guilt. See Cantu v. State, 395 S.W.3d 202, 207 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). Rather, we consider only whether the inferences necessary to establish guilt are reasonable based on the cumulative force of all the evidence when considered in the light most favorable to the jury's verdict. See Hooper, 214 S.W.3d at 16–17.

Additionally, the jury could have reasonably inferred that Luna's conduct after the murder demonstrated a consciousness of guilt. It is well-established that “conduct on the part of a person accused of a crime subsequent to its commission, which indicates a ‘consciousness of guilt,’ may be received as a circumstance tending to prove that he committed the act with which he is charged.” Mottin v. State, 634 S.W.3d 761, 770 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd) (internal quotations omitted).⁷

First, a delay in seeking medical care is probative of wrongful conduct and indicates a consciousness of guilt. See Washington v. State, 567 S.W.3d 430, 439 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd) (considering two-hour delay in calling 911, despite child's obvious need for medical attention); Martin v. State, 246 S.W.3d 246, 262 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (delay in seeking medical care for injured child supported inference of guilt).

Dr. Ross opined that all of S.M.'s injuries occurred at or near the time of her death and that she likely died after 1:00 p.m. but before 10:00 p.m. on Sunday, August 23. Dr. Ross explained that rigor mortis can begin in children one to two hours after death. And body temperature generally decreases at a rate of one to two degrees per hour after death.

According to Luna, he and S.M. went to sleep at 7:00 p.m. Sunday in the sunroom. And, at 9:00 or 10:00 p.m., Luna woke up and found S.M. not breathing.

But EMS was not dispatched to Luna's apartment until 12:24 a.m. on Monday, August 24, 2020. And when paramedics arrived at 12:38 a.m., S.M. already had “[n]oted rigoring with contractures and gray color with [a] cold body.” Shivers testified that S.M.'s skin tone was poor and abnormally pale, and her core temperature was “already kind of low”—at 95.9 degrees. He opined that “there had been some sort of prolonged downtime before 911 was called.” And emergency room physicians noted that they were unable to intubate S.M. because her jaw was already “rigored shut.” At 1:16 a.m., S.M.'s body temperature was down to 89.8 degrees.

From the evidence, the jury could have reasonably inferred that Luna delayed in seeking medical care for S.M. and that his delay indicated a consciousness of his guilt. See Washington, 567 S.W.3d at 439; Martin, 246 S.W.3d at 262 (delay in seeking medical care supported consciousness of guilt).

Additionally, consciousness of guilt may be shown by false statements and implausible explanations to law enforcement. See Guevara, 152 S.W.3d at 50; see also Ex Parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014) (implausible explanations to police are “strong evidence” of consciousness of guilt).

The evidence shows that Luna told his roommates that he left S.M. in her car seat “accidentally with the straps too tight; and she basically choked.” And he told law enforcement—which was also captured on body camera video and played to the jury—that he simply woke up and found S.M. slouched down in her car seat, with the straps up near her neck, and not breathing.

But evidence was also presented that S.M. suffered extensive injuries that went far beyond becoming entangled in a car seat. Dr. Ross opined, based on her detailed testimony discussed above, that S.M. died from “multiple blunt force injuries with suffocation and sexual assault.” And Luna concedes on appeal that “[t]he evidence shows that SM died of suffocation” and the “injury on her mouth was consistent with someone putting something over her mouth.”

Further, Bauer testified that semen was confirmed on the inner seat of S.M.'s car seat, on two of her blankets, and on her pink “onesie.” And there was “very strong support” that the DNA profile found originated from Luna. Also, blood and semen were found on diaper wipes in Luna's sunroom. And there was “very strong support” that DNA found on some of the wipes was from S.M. and Luna.⁸

Based on all the evidence, the jury could have reasonably chosen to disbelieve Luna's version of the events. See Isassi, 330 S.W.3d at 638. It could have reasonably inferred that Luna was the person who caused S.M.'s injuries and that his account was implausible—designed by him to conceal his conduct—and indicated a consciousness of guilt. See Guevara, 152 S.W.3d at 50 (implausible explanations are probative of wrongful conduct); Washington, 567 S.W.3d at 439 (defendant's statement to medical personnel and police that child sustained injuries in fight with other children or fell down stairs was implausible, given extreme severity of child's injuries, and supported capital murder conviction).

We defer to the responsibility of the jury “to weigh the evidence and draw reasonable inferences from basic facts to ultimate facts.” Isassi, 330 S.W.3d at 638. And a jury “may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when drawing inferences from the evidence.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).

Based on the cumulative force of all the incriminating circumstances, viewed in the light most favorable to the verdict, we conclude that a rational juror could have found beyond a reasonable doubt that Luna is the person who caused S.M.'s death. See Jackson, 443 U.S. at 318–19; Ingerson, 559 S.W.3d at 509 (identity may be proven by circumstantial evidence or by reasonable inferences from the evidence); Isassi, 330 S.W.3d at 638; Hooper, 214 S.W.3d at 13. “This was not a determination so outrageous that no rational trier of fact could agree.” Merritt v. State, 368 S.W.3d 516, 527 (Tex. Crim. App. 2012) (internal quotations omitted); see Morgan, 501 S.W.3d at 89 (our role on appeal is “restricted to guarding against the rare occurrence when a fact finder does not act rationally”). Luna does not challenge the other elements of the offense. See TEX. PENAL CODE § 19.03(a)(8). We thus hold that the evidence is legally sufficient to support Luna's conviction for the offense of capital murder.

We overrule Luna's first issue.

Charge Error

In his second and third issues, Luna argues that the trial court reversibly erred in the jury charge at the guilt/innocence phase of trial. He contends that the fourth, fifth, and sixth application paragraphs omitted essential elements of the offense. And he argues that the trial court's instruction on party liability is not supported by the evidence.

A. Standard of Review

In reviewing asserted jury-charge error, we first determine whether error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we determine whether sufficient harm resulted from the error to require reversal. Id. The harm necessary for reversal depends on whether the defendant objected to the error. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020).

If the defendant objected to the error, we consider whether that error resulted in “some harm.” Alkayyali v. State, 713 S.W.3d 780, 789 (Tex. Crim. App. 2025). “Some harm requires reversal if the error is calculated to injure the rights of the defendant, meaning the error cannot be harmless.” Id. (internal quotations omitted).

If the defendant did not object, we consider whether the error resulted in egregious harm. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). “Charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id. “Egregious harm is a high and difficult standard to meet,” and it must be based on actual—not theoretical—harm. Id.

B. Trial Court's Jury Charge 9

Here, the application paragraphs in the trial court's charge read as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of August, 2020, in Harris County, Texas,

(1) [Luna] intentionally or knowingly caused the death of S.M. by blocking S.M.'s nose and mouth with [his] hand [or other manner and means] and that S.M. was an individual under ten years of age; or

(2) [Luna,] acting with intent to promote or assist the commission of the offense of capital murder, if any, solicited, encouraged, directed, aided, or attempted to aid an unknown male in intentionally or knowingly killing S.M.—an individual under ten years of age — if he did, by blocking S.M.'s note and mouth with said unknown male's hand [or other manner and means], and that S.M. was an individual under ten years of age; or

(3) [Luna] entered into an agreement with an unknown male to commit the felony offense of Aggravated Sexual Assault of S.M. and pursuant to that agreement they did carry out their conspiracy, and while in the course of committing said conspiracy, said unknown male intentionally caused the death of S.M.—an individual under ten years of age—by blocking S.M.'s nose and mouth with said unknown male's hand [or other manner and means], and the murder of S.M. was committed in furtherance of said conspiracy and was an offense that should have been anticipated by [Luna] as a result of carrying out said conspiracy; or

(4) [Luna] was in the course of committing or attempting to commit the felony offense of Aggravated Sexual Assault of S.M. and that [Luna] specifically intended to cause the death of S.M. by blocking S.M.'s nose and mouth with [Luna's] hand [or other manner and means]; or

(5) [Luna,] acting with intent to promote or assist in the commission of the offense of capital murder, if any, solicited, encouraged, directed, aided, or attempted to aid an unknown male in his commission of capital murder, to wit: said unknown male, while in the course of committing or attempting to commit the felony offense of Aggravated Sexual Assault of S.M. specifically intended to cause the death of S.M., if he did, by blocking S.M.'s nose and mouth with the unknown male's hand [or other manner and means]; or

(6) [Luna] entered into an agreement with an unknown male to commit the felony offense of Aggravated Sexual Assault of S.M. and pursuant to that agreement they did carry out their conspiracy, and while in the course of committing said conspiracy, said unknown male intentionally caused the death of S.M. by blocking S.M.'s nose and mouth with said unknown male's hand [or other manner and means], and the murder of S.M. was committed in furtherance of said conspiracy and was an offense that should have been anticipated by [Luna] as a result of carrying out said conspiracy;

then you will find [Luna] guilty of capital murder as charged in the indictment.

C. Application Paragraphs

1. Error

Specifically, Luna complains that the fourth and fifth paragraphs of the charge “did not require the jury to find that S.M. died or that the alleged conduct caused her death.” The State argues that “[u]sing different tenses of ‘intentionally’ and ‘cause’ did not result in the failure to include a required element of capital murder.”

The trial court must give the jury a written charge that sets forth the law applicable to the case. TEX. CODE CRIM. PROC. art. 36.14. The charge “must contain an accurate statement of the law and must set out all the essential elements of the offense.” Alkayyali, 713 S.W.3d at 790.

A person commits “murder” if he “intentionally or knowingly causes the death of an individual.” TEX. PENAL CODE § 19.02(b)(1) (emphasis added). A person commits capital murder if he “commits murder as defined under Section 19.02(b)(1)” and he: “murders an individual under 10 years of age” or if he “intentionally commits the murder in the course of committing or attempting to commit ․ aggravated sexual assault.” Id. §§ 19.02(b)(1), 19.03(a)(2), (8).

Examining the fourth and fifth application paragraphs of the charge, we agree that they omit an essential element of the offense of capital murder: “causes the death of.” See id. § 19.02(b)(1). As written, these paragraphs authorized the jury to convict Luna if it found that he “specifically intended to cause the death of” S.M., without requiring a finding that he did cause her death. (Emphasis added.) Because these paragraphs do not properly instruct the jury on the law applicable to the case, there is error in the charge. See Ngo, 175 S.W.3d at 743.

Luna further complains that there is error in the sixth application paragraph because it “did not require the jury to find the capital element that murder was committed ‘in the course of committing or attempting to commit' aggravated sexual assault.” But the record does not support his complaint.

The sixth paragraph authorized the jury to convict Luna as a conspirator if it first found that he entered into an agreement with an unknown male to commit aggravated sexual assault. The jury then had to find that “they did carry out their conspiracy”—to commit aggravated sexual assault. And “while in the course of committing said conspiracy”—the aggravated sexual assault—the unknown male “intentionally caused the death of S.M.” (Emphasis added.) Because this paragraph required the jury to first find that murder was committed while in the course of committing aggravated sexual assault, in accordance with the statute, no error is shown. See TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a)(2).

2. Harm

Having concluded that error exists in the charge with respect to the fourth and fifth paragraphs, we must determine whether sufficient harm resulted from the error to require reversal.¹⁰ Because Luna did not object to the charge, reversal is required only if it resulted in egregious harm. See Villarreal, 453 S.W.3d at 433. Luna argues that he was egregiously harmed because the instructions “omitted the gravamen of the offense and therefore denied [him] the right to a unanimous jury verdict.”

Egregious harm is determined on a case-by-case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011). Neither party bears the burden on appeal to show harm or a lack thereof. Villarreal, 453 S.W.3d at 433 We consider (a) the entirety of the jury charge; (b) the state of the evidence, including the contested issues and weight of the probative evidence; (c) arguments of counsel; and (d) any other information revealed by the trial record as a whole. Id. In addition, we measure harm “at least in part, against the likelihood that the jury's verdict was actually based upon an alternative available theory of culpability not affected by erroneous portions of the charge.” Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012).

Fourth Paragraph

a. Entirety of the charge

We first consider the error in paragraph four in relation to the charge as a whole. Olivas v. State, 202 S.W.3d 137, 146 (Tex. Crim. App. 2006).

We note that the indictment charged Luna under two theories of capital murder:

[Luna] did then and there unlawfully, intentionally and knowingly cause the death of S.M., ․ an individual under ten years of age, by [eight alternative manner and means]

․

It is further presented that [Luna] ․ did then and there unlawfully, while in the course of committing and attempting to commit the aggravated sexual assault of S.M․ intentionally cause the death of [S.M.], by [eight alternative manner and means].

The abstract portion of the charge properly set out the statutory elements of capital murder and murder:

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual.

A person commits the offense of Capital Murder if he commits Murder, as hereinabove defined, and the person intentionally or knowingly causes the death of an individual under ten years of age.

A person commits the offense of Capital Murder if he intentionally commits Murder, and the person intentionally commits the murder in the course of committing or attempting to commit the offense of Aggravated Sexual Assault.

(Emphasis added.) The abstract portion also set out the elements of aggravated sexual assault and defined party and conspirator liability.

The first three application paragraphs correctly present the first theory. Paragraph one authorized the jury to convict Luna of capital murder as a principal actor if it found that he intentionally or knowingly caused the death of S.M. and that she was under 10 years of age. Paragraphs two and three authorized the jury to find Luna guilty under that theory if he acted as a party or as a conspirator.

The fourth, fifth, and sixth application paragraphs address the second theory. But, as written, the fourth paragraph authorized the jury to convict Luna of capital murder as a principal actor if it found that he was in the course of committing or attempting to commit the aggravated sexual assault of S.M. and intended to cause her death by any of the alleged manner and means, without deciding whether his acts actually caused her death. Paragraph five authorized the jury to convict Luna under the same theory as a party, but without deciding whether his acts caused S.M.'s death.

The sixth paragraph correctly authorized the jury to convict Luna under the second theory if it found that he acted as a conspirator—that S.M.'s death was caused in furtherance an agreement to commit aggravated sexual assault.

Generally, it is not necessary to include every element of an offense in the application paragraph if it refers to other parts of the charge that set out the elements. See Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012). But here the fourth paragraph does not expressly refer the jury to any other parts of the charge.

Although this factor weighs in favor of finding egregious harm, we do not assign it great weight for the reasons that follow. See Olivas, 202 S.W.3d at 146–47.

b. State of the evidence

The second factor requires us to review the state of the evidence—including the weight of the probative evidence and the contested issues. Villarreal, 453 S.W.3d at 433.

With respect to the weight of the probative evidence, the only contested element at trial was identity—which is common to both theories of capital murder presented in the charge. See Olivas, 202 S.W.3d at 147 (focusing second prong of egregious-harm analysis on disputed element of identity). And the jury's finding that Luna was the person who caused S.M.'s death is overwhelmingly supported by the evidence.¹¹

As discussed above, the evidence showed that Luna had sole access to S.M. at the time she sustained her fatal injuries. There was testimony that S.M. was healthy and uninjured before the events. And Luna himself stated on police video that S.M. was “good” at 7:00 p.m., when he and she went to sleep in the sunroom. All of Luna's roommates testified that Luna and S.M. were alone together in the sunroom at the time she stopped breathing. And Luna told Deputy Papa that he was the last person to see S.M. alive.

The evidence further showed that Luna delayed in seeking medical care for S.M. and that he advanced an illogical explanation for her extensive injuries.

Finally, Bauer testified that semen was confirmed on the inner seat of S.M.'s car seat, on two of her blankets, on her pink “onesie,” and on wipes found in Luna's sunroom. And there was “very strong support” that the DNA profile found originated from Luna.

Thus, there is ample evidence establishing Luna's identity as the person responsible for S.M.'s death.

This evidence fully supports Luna's guilt under the properly submitted alternate theory—that he caused the death of an individual under 10 years of age—as presented in the first paragraph of the charge. See TEX. PENAL CODE § 19.03(a)(8). And it was uncontested that eight-month-old S.M. was under 10 years of age. Therefore, there was no reason for the jury to consider the additional element in the second theory—whether Luna's commission of murder also involved aggravated sexual assault. See Sanchez, 376 S.W.3d at 775 (we measure harm “at least in part, against the likelihood that the jury's verdict was actually based upon an alternative available theory of culpability not affected by erroneous portions of the charge”); see also Rivera v. State, 12 S.W.3d 572, 577 (Tex. App.—San Antonio 2000, no pet.) (no egregious harm where evidence supported defendant's guilt under alternate theory unaffected by erroneous portion of charge, State relied on alternate theory for conviction, and jury's verdict likely based on alternate theory).

Further, with respect to contested issues, “a defendant suffers egregious harm when elements of an offense are disputed at trial and the jury is not required to find those elements to be proven beyond a reasonable doubt prior to convicting a defendant.” Alkayyali, 713 S.W.3d at 791–92.

Luna complains that he suffered egregious harm because the fourth paragraph “did not require the jury to find that S.M. died or that the alleged conduct caused her death.” In support of his argument, he relies on Alkayyali, 713 S.W.3d 780.

In Alkayyali, the Texas Court of Criminal Appeals held that egregious harm results “[i]f a jury charge fails to require that the State prove every contested element of an offense beyond a reasonable doubt.” Id. at 783 (emphasis added). Notably, there, the “issue of the cause of death was contested.” Id. at 794.

In Alkayyali, a husband covered his wife's mouth with his hand during a dispute, and the wife stopped breathing and died. Id. at 784. The husband was subsequently charged with murder. Id. At trial, his defensive theory was that his wife's death was an accident caused by a pre-existing heart condition. And he presented evidence to develop his theory. Id. at 786.

The jury charge in Alkayyali authorized the jury to convict the husband of murder under two alternate theories—either that he intentionally or knowingly caused his wife's death by impeding her breathing or that he committed an act clearly dangerous to human life that impeded her breathing. Id. at 784. But the application paragraph of the second theory allowed the jury to convict him of murder without requiring the jury to find that he caused the wife's death—“essentially gutting [the husband's] defensive theory.” Id. at 791, 794. The court of criminal appeals thus concluded that the omission of the causation element resulted in egregious harm because its omission vitally affected the defendant's main defensive theory. Id. at 791.

Here, Luna concedes that “[t]he evidence shows that [S.M.] died of suffocation” and that the “injury on her mouth was consistent with someone putting something over her mouth.” Thus, S.M.'s death and cause of death are not contested issues in this case. And, unlike in Alkayyali, this factor weighs against a finding of egregious harm in this case.¹²

We thus conclude that the state of the evidence weighs heavily against a finding of egregious harm resulting from the error in the jury charge. See Sanchez, 376 S.W.3d at 775 (noting that presence of overwhelming evidence of guilt plays determinative role in resolving charge-error issue).

c. Argument of Counsel

Under this factor, we consider whether any statements during trial by the prosecutor, defense counsel, or the trial court may have exacerbated or ameliorated the error in the jury charge—omitting the element “causes the death of.” Arrington v. State, 451 S.W.3d 834, 844 (Tex. Crim. App. 2015).

Here, the State's closing argument tended to ameliorate the error because it emphasized that, in order to convict Luna under either theory, the jury had to find that he caused a death:

So there are two ways to prove capital murder in this charge ․

And so there's—the first road you can take is road one. We have proven to you beyond a reasonable doubt that the defendant committed capital murder by intentionally or knowingly causing the death of [S.M.]. And she was an individual under ten.

Or you can think, you know what, I think the State has proven to us under road two, a person commits the felony offense of capital murder if he intentionally committed the murder and that the person intentionally commits the murder in the course of committing or attempting to commit the offense of aggravated sexual assault.

․

So here are your directions, as I said, road one or road two, intentionally or knowingly causes the death of an individual under ten or aggravated sexual assault, either conclusion—and you don't need to be unanimous.

The State further correctly explained in closing that, in order to convict, the jury was required to unanimously conclude that Luna committed the offense but that unanimity was not required with respect to the manner and means or principal, party, or conspirator liability. See Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006) (jury need not unanimously agree on alternate modes or means of committing an offense).

Defense counsel's closing argument also tended to ameliorate the error:

And so as you know, from the beginning and you know from everything we talked about, this is a capital murder case. This is not a manslaughter case. This is an allegation that Mr. Luna intentionally killed his child. And that's what you're here to make a determination of, whether or not the State of Texas has proved that to you beyond a reasonable doubt.

․

This isn't a case that she died from some medical situation ․ that was not my cross–examination of Dr. Ross. We acknowledge that the child was abused, okay. The child was murdered, okay. He just didn't do it.

․

The State points out that the—you know the defendant's DNA is all over his room, and it is. And his semen is all over his room in all kinds of places, it's there.

(Emphasis added.) We note that defense counsel's argument here also supports why this case is not Alkayyali, as discussed above. See 713 S.W.3d at 786 (defensive theory was that wife's death was caused by pre-existing heart condition).

Because argument from both sides strongly ameliorated the error, this factor also weighs against a finding of egregious harm. See Arrington, 451 S.W.3d at 844.

d. Other relevant information

Neither Luna nor the State point to any other relevant information, and we find none. See Villarreal, 453 S.W.3d at 433.

Balancing these factors, we conclude that the error in the fourth paragraph did not result in egregious harm—that degree of harm that “affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” See id. (“Egregious harm is a high and difficult standard to meet” and must be based on actual—not theoretical—harm).

Fifth Paragraph

For the reasons given above, we conclude that the same error in the fifth paragraph—under a parties liability theory—did not result in egregious harm. See Ladd v. State, 3 S.W.3d 547, 564–65 (Tex. Crim. App. 1999) (“[W]here the evidence clearly supports a defendant's guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless.”); Malbrough v. State, 612 S.W.3d 537, 562–63 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd).¹³

Unanimity

Luna further complains that the error in the fourth and fifth paragraphs deprived him of a unanimous jury verdict. But a jury must unanimously convict a defendant of a single, specific offense—it need not unanimously agree as to any particular theory of how the defendant committed that offense. See Young v. State, 341 S.W.3d 417, 424 (Tex. Crim. App. 2011) (“[I]n ‘result of conduct’ offenses, the jury must be unanimous about the specific result required by the statute.” (emphasis added)); Jefferson, 189 S.W.3d at 312–14; see also Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003) (“Murder is a ‘result of conduct’ offense.”).

We overrule Luna's third issue.

D. Party Liability

In his second issue, Luna contends that the trial court erred in submitting parties instructions in the charge—application paragraphs two, three, five, and six—because “there was no evidence to prove [his] guilt as a party.”¹⁴ He argues that, although the State presented evidence that another person participated in the sexual assault of S.M., there was no evidence of that person's identity, when or how that person's DNA ended up in his room, or what Luna “may have done or said to” him. Therefore, according to Luna, there was no evidence of any understanding or common design between him and anyone else, and the evidence at trial did not support a parties instruction.

But, as Luna notes in his brief, the Texas Court of Criminal Appeals has held that where the evidence “clearly supports a defendant's guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless.” See Ladd, 3 S.W.3d at 564–65 (without evidence of appellant's guilt as a party, the jury would not have relied on the parties instruction but would have based its verdict on evidence of appellant's guilt as a principal).¹⁵

Because the evidence clearly supports Luna's guilt as a principal actor, as discussed above, any error in submitting a parties instruction was harmless. See id.; Nelson v. State, 405 S.W.3d 113, 126 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) (“[E]ven if the evidence were insufficient to show appellant's guilt as a party to the murder, and the trial court erred in submitting a parties instruction, any such error would be harmless when the ‘evidence clearly supports a defendant's guilt as a principal actor.’ ” (quoting Ladd, 3 S.W.3d at 564–65)).

We overrule Luna's second issue.

Limiting Cross-Examination

In his fourth issue, Luna contends that the trial court reversibly erred in limiting his cross-examination of Deputy Ferrell regarding the interrogation techniques that he used on Luna during an interview prior to his arrest. Luna further complains that the trial court's ruling violated his Sixth Amendment right to confrontation.

A. Standard of Review

We review a trial court's decision to exclude evidence—including by limiting cross-examination—under an abuse of discretion standard. See Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial court abuses its discretion if its decision falls outside the zone of reasonable disagreement. Id. If the trial court's evidentiary ruling is correct under any applicable theory of law, we will uphold it even if the trial court gave a wrong or insufficient reason for the ruling. Id. A challenge to a trial court's exclusion of testimony may involve both the Texas Rules of Evidence and the Confrontation Clause of the Sixth Amendment to the United States Constitution. Id. at 909.

The Rules of Evidence provide that only relevant evidence is admissible. TEX. R. EVID. 402. Evidence is relevant if it has any tendency to make the existence of any fact of consequence to determining the action more or less probable than it would be without the evidence. TEX. R. EVID. 401.

And, pursuant to Rule of Evidence 611, a witness may be cross-examined on “any relevant matter.” TEX. R. EVID. 611(b) (emphasis added). A trial court “should exercise reasonable control” over the examination of witnesses to make procedures effective for determining the truth, avoid wasting time, and protect witnesses from harassment. TEX. R. EVID. 611(a).

The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.” U.S. CONST. amend. VI. The right to cross-examine a witness allows a party to attack the general credibility of that witness “or to show their possible bias, self-interest, or motives in testifying.” Johnson, 490 S.W.3d at 909.

But the Confrontation Clause “guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, a defendant might wish.” Balderas v. State, 517 S.W.3d 756, 778–79 (Tex. Crim. App. 2016) (emphasis added). “[A] less than optimal opportunity for cross-examination does not, of itself, violate the Sixth Amendment.” Id. at 779. (internal quotations omitted). A trial court retains “wide latitude” to impose restrictions on cross-examination “that is repetitive or only marginally relevant.” Johnson, 490 S.W.3d at 910.

B. Applicable Facts

Here, the day after the murder, Luna voluntarily went with deputies to the sheriff's office to discuss the events. He was interviewed by Deputy Ferrell.

At trial, defense counsel cross-examined Deputy Farrell about that initial interview. Deputy Ferrell testified that Luna was at the sheriff's office for approximately seven hours. Luna spoke with investigators, gave a DNA sample, and allowed the contents of his cell phone to be downloaded. And he did not invoke his right to remain silent or request counsel. He was allowed to leave the room several times, and he returned home afterwards.

Defense counsel then asked Deputy Ferrell whether his “training in interrogation” included “trying to convince the subject that they really don't have any hope of escaping what they have been accused of.” The State objected on relevance grounds. And the trial court sustained the State's objection.

In a discussion at the bench, defense counsel explained that the “relevance is that [Luna] withstood these interrogation tactics; and he answered the questions.” Counsel explained that he also wanted to “talk about all the different interrogation tactics that [Deputy Ferrell] used” to show that Luna had endured “pretty aggressive” tactics but never invoked his right to counsel or to remain silent. Counsel conceded that the interrogation methods used were not improper. Rather, he wanted to show that Luna did not succumb to “interrogation tactics, period.”

In a bill of exception, defense counsel complained that Deputy Farrell had (1) suggested that Luna did not have “any hope of escaping” the accusations; (2) minimized the nature of the events; (3) “[t]empt[ed] [Luna] to say things that [were not] true or to blame others”; and (4) “[p]lay[ed] on a ‘guilty conscience.’ ”¹⁶ And counsel emphasized that he wanted Deputy Ferrell's statements and questions to come in, but not Luna's responses.

The State stipulated that the interrogation techniques Deputy Ferrell used on Luna are commonly used by law enforcement. And it objected that presenting Deputy Ferrell's questions outside the context of Luna's responses would “create[ ] a false impression before the jury” that Luna had endured interrogation without saying anything incriminating. According to the State—and defense counsel acknowledged—Luna made statements during the interview that investigators had perceived as deceptive. And this had driven Deputy Ferrell's line of questioning.

The trial court then stated to defense counsel: “[I]t seems like you're creating a false impression now”—“creat[ing] an appearance that [Luna] withstood all of this cross-examination and didn't say anything incriminating”—when, “in fact, he did make statements that apparently were somewhat incriminating, and the State is not able to get into that.” The trial court sustained the State's objection.

Luna later objected that limiting his cross-examination of Deputy Ferrell—with respect to the matters proffered in the bill of exception—violated his Sixth Amendment right to confront the witnesses against him. The trial court responded that “considering a lot of the statements that you are trying to elicit came after” officers perceived deception in Luna's responses, and “the State can't go into any of that, I think it would create a false impression for the jury. So my ruling will stand.”

C. Analysis

Luna complains that the trial court's ruling denied him the opportunity to cross-examine Deputy Ferrell about “facts that were relevant to his innocence.” He complains that he was “prevented from showing the jury that [he] withstood Ferrell's interrogation tactics, pressure, and threats” without incriminating himself. And “in a purely circumstantial case like this one, evidence of Luis's clear conscience in the face of aggressive interrogation would have been strong evidence of his innocence.”

But Luna does not complain that any of the interrogation techniques used were improper or that Deputy Ferrell's statements and questions during the interview induced him to confess or to make any incriminating statements. Rather, Luna sought only to cross-examine Deputy Ferrell about his statements and questions. And he expressly did not want any of his responses to come before the jury.

The trial court could have reasonably concluded that Deputy Ferrell's specific statements and questions—on their own and without more—were not relevant. That is, they would not have made any fact of consequence—Luna's guilt or innocence, as he argues—any more or less probable. See TEX. R. EVID. 401. Rather, such testimony would have simply invited the jury to speculate as to Luna's responses.

Because Deputy Ferrell's specific statements and questions were not relevant, the trial court did not abuse its discretion in limiting cross-examination on these matters. See TEX. R. EVID. 611(b) (witness may be cross-examined on “any relevant matter” (emphasis added); Nwaogu v. State, No. 01-11-00597-CR, 2013 WL 1490489, at *4 (Tex. App.—Houston [1st Dist.] Apr. 11, 2013, pet. ref'd) (mem. op., not designated for publication) (trial court did not abuse its discretion in limiting cross-examination of officer on irrelevant matters); Hewitt v. State, No. 01-03-00404-CR, 2004 WL 2476572, at *5 (Tex. App.—Houston [1st Dist.] Nov. 4, 2004, pet. ref'd) (mem. op. not designated for publication) (holding defendant's proposed cross-examination questions, without the anticipated answers, were not relevant to outcome of case).

Moreover, Luna had already elicited testimony from Deputy Farrell in front of the jury that he was trained in interrogation and “interrogation tactics.” And Deputy Ferrell had already testified that Luna was at sheriff's office for seven hours and had voluntarily answered Deputy Ferrell's questions without requesting counsel or invoking a right to remain silent. Thus, Luna had already presented that he had withstood “interrogation tactics, period”—as he advances. See Hewitt, 2004 WL 2476572, at *5 (holding appellant did not show that his right to cross-examine witnesses was hampered by trial court's refusal to allow questions regarding investigation).

Additionally, under the Confrontation Clause, the trial court has “wide latitude” to limit testimony that may cause confusion of the issues or that is repetitive or only marginally relevant. See Johnson, 490 S.W.3d at 910. A trial court does not abuse its discretion when, as here, it limits cross-examination on a matter not shown to be relevant. See Hewitt, 2004 WL 2476572, at *5. And the line of questioning that the trial court excluded here did not seek to attack Deputy Ferrell's credibility, bias, or motive. See Johnson, 490 S.W.3d at 909 (purpose of Confrontation Clause is to protect right to cross-examine witness to attack general credibility “or to show their possible bias, self-interest, or motives).

We hold that the trial court's ruling is not beyond the zone of reasonable disagreement and therefore the trial court did not abuse its discretion by excluding the line of questioning at issue. See id. at 908.

We overrule Luna's fourth issue.

Conclusion

For all of the reasons above, we affirm the trial court's judgment in all things.

FOOTNOTES

1.   See TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a)(2), (8).

2.   See id. § 12.31(a).

3.   See TEX. CODE CRIM. PROC. art. 37.07 § 1(a) (“The verdict in every criminal action must be general.”).

4.   We therefore do not reach whether the evidence is also sufficient to support that Luna committed murder in the course of committing or attempting to commit aggravated sexual assault. See TEX. PENAL CODE § 19.03(a)(2); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004); Casanova v. State, No. 01-24-00308-CR, 2025 WL 1033765, at *4 n.4 (Tex. App.—Houston [1st Dist.] Apr. 8, 2025, pet. ref'd) (mem. op., not designated for publication) (jury must be unanimous that defendant committed offense but need not be unanimous as to theory of responsibility). Additionally, we do not reach whether the evidence is sufficient to support his conviction as a party or co-conspirator. See Guevara, 152 S.W.3d at 49; see also Leza v. State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011) (jury unanimity with respect to guilt as principal actor or party not required).

5.   Because Luna challenges only the sufficiency of the evidence to support the identity element, we do not address the sufficiency of the evidence to support any other element of the offense. See Murray v. State, 457 S.W.3d 446, 448 n.1 (Tex. Crim. App. 2015) (“We solely address the sufficiency of the evidence as it pertains to the element of ‘operating’ in the DWI statute because Appellant challenged only that element of the statute.”); Wharton v. State, 711 S.W.3d 92, 101 (Tex. App.—Houston [1st Dist.] 2024, pet. ref'd); see also Ostrander v. State, No. 14-20-00286-CR, 2021 WL 2470390, at *7 (Tex. App.—Houston [14th Dist.] June 17, 2021, pet. ref'd) (mem. op., not designated for publication) (“Because appellant has challenged the proof relating to just a single element of both offenses, we limit our review accordingly.”); see, e.g.,>Burks v. State, No. PD-0992-15, 2017 WL 3443982, at *1 (Tex. Crim. App. June 28, 2017) (not designated for publication) (reviewing court should not address unbriefed elements in legal sufficiency challenge).

6.   See Bearnth v. State, 361 S.W.3d 135, 140 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (evidence that defendant was “the only adult present at the time of the injury” and “there [was] no evidence that anyone else was in the bathroom with [the child]” supported conviction); Elledge v. State, 890 S.W.2d 843, 846 (Tex. App.—Austin 1994, pet. ref'd) (evidence placing appellant alone with child when fatal injuries were sustained supported conviction).

7.   See Ex Parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014) (evidence of defendant's conduct after victim's death may reflect “consciousness of guilt”); see also King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (“consciousness of guilt” may be considered in determining guilt); Marquez v. State, 697 S.W.3d 485, 503 (Tex. App.—El Paso 2024, pet. ref'd) (“Consciousness of guilt may be one of the strongest indicators of guilt.”).

8.   Luna correctly asserts that Bauer was unable to definitively state whether the DNA she found came from blood, semen, or skin. But the jury could have reasonably concluded that Luna was involved in the sexual assault and murder of S.M. based on blood and/or semen having been detected on numerous items on which S.M.'s and Luna's DNA was found—including items on which the appearance of semen was strongly indicative of wrongdoing, such as the car seat, onesie, and blankets—especially when combined with the cumulative force of all the other evidence.

10.   See Alkayyali v. State, 713 S.W.3d 780, 789 (Tex. Crim. App. 2025) (“[T]he failure of a jury instruction to require a finding of an element of an offense beyond a reasonable doubt is not structural error and is subject to a harm analysis.”).

11.   See Hollander v. State, 414 S.W.3d 746, 751 (Tex. Crim. App. 2013) (“In an egregious-harm analysis, the question is not simply whether, when viewed in the light most favorable to the verdict, the jury could rationally have found predicate facts to a level of confidence beyond a reasonable doubt. Instead, a reviewing court must evaluate the likelihood, considering the record as a whole, that a properly instructed jury would have found the predicate facts to the requisite level of confidence.”).

12.   See, e.g.,>Smith v. State, No. 14-24-00858-CR, 2026 WL 1552409, at *7 (Tex. App.—Houston [14th Dist.] June 2, 2026, no pet.) (mem. op., not designated for publication).

13.   See, e.g.,>Delacerda v. State, No. AP-77,078, 2021 WL 2674501, at *19 (Tex. Crim. App. June 30, 2021) (applying Ladd v. State, 3 S.W.3d 547, 564–65 (Tex. Crim. App. 1999)).

14.   A person is criminally responsible as a party to an offense if, “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” See TEX. PENAL CODE § 7.02(a)(2). In addition, a person may be criminal responsible for the conduct of another if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed. See id. § 7.02(b). A “conspiracy” means an agreement between two or more persons to commit a felony. Id.

15.   See, e.g.,>Delacerda, 2021 WL 2674501, at *19–20 (error, if any, was harmless, where appellant argued trial court erred in giving parties instruction “in the complete absence of any evidence to support the instruction,” because evidence clearly supported his guilt as principal actor—applying Ladd, 3 S.W.3d at 564–65).

16.   Specifically, according to Luna, Deputy Ferrell accused him of being dishonest and stated that the evidence pointed to him, that everyone's story lined up except his, and that the case would get worldwide attention. And Luna claims that Deputy Ferrell tried to lure him into admitting that he just got “frustrated” and that killing S.M. was a “mistake.” Luna also claims that Deputy Ferrell suggested that Trevonte had committed the murder and that Luna should blame him. And Luna claims that Deputy Ferrell told him that he should “do the right thing,” told him that SM “wants you to tell the truth,” and suggested that he was “ashamed and embarrassed” and “only upset because of the consequences.”

Terry Adams Chief Justice