Derwin Dewayne Bell v. the State of Texas

In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-24-00164-CR
                               __________________

                    DERWIN DEWAYNE BELL, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 19th District Court
                      McLennan County, Texas
                    Trial Cause No. 2021-1275-C1
__________________________________________________________________

                           MEMORANDUM OPINION

      Derwin Dewayne Bell was indicted for two counts of the second-degree

felony offense of aggravated assault with a deadly weapon. Tex. Penal Code Ann. §

22.02.1 A jury found Bell guilty in Count I, and the trial court declared a mistrial in

Count II. In two issues, Bell complains that the jury charge contained an improper




      1
       This case was transferred from the Tenth Court of Appeals pursuant to a
docket equalization order issued by the Supreme Court of Texas. See Tex. Gov’t
Code Ann. § 73.001.
                                        1
definition of “firearm” which caused egregious harm to Bell, and that the evidence

was insufficient to support the verdict. For the reasons discussed below, we affirm

the judgment of the trial court.

                                    Background

      The grand jury indicted Bell for aggravated assault with a deadly weapon,

alleging in Count I:

      [T]hat DERWIN DEWAYNE BELL, hereinafter called Defendant, on
      or about the 7th day of June, 2021, in said county and state did then and
      there intentionally and knowingly threaten ROBERT CURRY with
      imminent bodily injury by shooting at ROBERT CURRY with a
      firearm, and did then and there use or exhibit a deadly weapon, namely,
      a firearm, during the commission of the assault[.]

      Count II of the indictment alleged:

      [T]hat the said DERWIN DEWAYNE BELL, in the County of
      McLennan and State aforesaid on or about the 7th day of June, 2021,
      did then and there intentionally, knowingly, and recklessly cause bodily
      injury to ALEXANDRIA GOODMAN by shooting ALEXANDRIA
      GOODMAN with a firearm, and the Defendant did then and there use
      or exhibit a deadly weapon, namely a firearm, during commission of
      the assault[.]

      Several witnesses testified at trial. We summarize their testimony below.

      Linda Farley

      Linda Farley was the programmer at the Dewey Recreational Center. The

Dewey Recreational Center is a community center that, among other things, has a

gym where people play basketball. Farley worked at the front desk where she signed

in individuals who wanted to use the recreational center. Through Farley, the State
                                            2
admitted the sign-in sheet from the Dewey Recreational Center on the night of June

7, 2021. The sign-in sheet showed three individuals relevant to this case that were at

the Dewey Recreational Center the night of the shooting: Danacion Presha, Robert

Curry, and Derwin Bell.

      Farley testified that the police arrived at the Dewey Recreational Center the

night of the shooting. She was working at the front desk when two girls came in and

asked her if her Mercedes was sitting outside. The girls told Farley that her “car just

got shot up.” Photos admitted at trial showed her vehicle with several bullet holes.

      Cody Weiser

      Weiser is a K9 officer with the City of Waco Police Department. On the night

of June 7, 2021, he heard a shooting call come out over the radio. He proceeded

towards Dewey Park and knew his commander was behind the suspect vehicle. His

commander was trying to catch up with the suspect vehicle but had lost it. The

vehicle was described as a purple Challenger. Weiser was able to locate the purple

Challenger. He described how the vehicle caught his attention “because of the way

it was driving.” The vehicle ran a stop sign. Weiser activated his radar because he

could tell the vehicle was going fast and did not appear to have its lights on. Weiser

caught the purple Challenger going over 50 miles an hour according to his radar, and

Weiser drove “just shy of 100 miles an hour trying to catch up to them.” Weiser ran

the license plate number and determined that Bell was associated with driving the

                                          3
vehicle and that there was a familial relationship between the registered owner of

the vehicle and Bell. Weiser was unable to catch the purple Challenger that night.

       On cross-examination, Weiser testified that he “had prior contact with that car

running from me” and believed that Bell was the driver. However, he never saw Bell

in the driver’s seat of the vehicle. Weiser believed that on the night of June 7, Bell

was operating the car because the previous time he pursued the vehicle, “other

investigators had actually seen who they believed was Derwin Bell. That’s why he

was listed as a suspect -- -- in the initial pursuit.”

       John Hazel

       John Hazel is a crime scene investigator with the Waco Police Department.

On the night of the shooting, Hazel was first dispatched to a residence “where some

people involved in the shooting had driven to.” He photographed a GMC Yukon that

sustained damage as well as the people in that vehicle. After taking photographs of

the Yukon, Hazel went to the Dewey Recreational Center where the main shooting

had happened.

       Photographs of the Yukon show that the vehicle had a flat front right tire and

damage consistent with a bullet defect on the lower left area of the front bumper.

Additionally, the photographs showed bullet defects on the front and rear driver’s

side doors and windows. The front windshield had a glass fracture that was

consistent with a bullet defect. Hazel testified there were eight bullet holes in the

                                             4
vehicle, all on the driver’s side. Hazel stated that depending on the direction from

which the bullet entered, there was a possible consistency between a front-seat

passenger being hit in the left arm and the bullet hole in the windshield of the Yukon.

      The photos of the crime scene at the Dewey Recreational Center showed an

Altima had defects consistent with being struck by a bullet. There were also several

photos admitted at trial that showed shell casings in the parking lot, designated by

orange cones. Hazel explained that the groupings of casings in the parking lot

indicated that there were shots being fired all over the parking lot consistent with a

shooter who is moving. Hazel collected a total of thirty-five casings in the parking

lot. The casings Hazel collected were not of the same brand, but he testified that it

is not uncommon for brands of ammunition from one handgun to be mixed.

      On cross-examination, Hazel testified that he did not know whether the thirty-

five casings represented one gun, two guns, or three guns. Hazel could not determine

how many weapons or shooters were involved but testified that other investigators

may be able to determine other facts in the investigation.

      Kenneth Hall

      Hall works as a recreational aid in the gym at the Dewey Recreational Center.

On the night of the shooting, he remembers an argument occurring on the basketball

court. He told the participants that “if you don’t settle down, you know, we’re going

to have to shut it down. Eventually, we winded up shutting it down and everybody

                                          5
went outside.” Although Hall did not hear any shots outside the Dewey Recreational

Center, someone ran inside the center and “said that they were out there shooting.”

      Daniel Kent

      Kent is a detective with the Waco Police Department. He assisted his partner,

Detective Conner, with conducting a photographic lineup of the suspect in the

shooting. As Conner prepared the lineup, Kent did not know which photo was the

suspect. Kent showed the photos sequentially. The lineup was shown to both Robert

Curry and Alexandria Goodman at their residence. He showed the lineups separately

from one another. Both of them made a positive identification from the lineup. Curry

identified photo number five, which is a photograph of Bell. Curry signed and dated

the photo and stated that “he’s 100 percent sure that is the person that committed the

offense.” Goodman identified Bell as well, signed and dated the photo, and put “that

she’s 95 percent sure that that’s the person that committed the offense.” Goodman

and Curry did not have an opportunity to confer with each other before Goodman

was shown the lineup.

      Robert Curry

      At the time of the shooting, Curry was dating Goodman, and they were living

in her family’s house. Curry regularly went to the Dewey Recreational Center to

play basketball. On the date of the shooting, Curry went by himself to the Dewey




                                          6
Recreational Center to play basketball and he did not see anyone he knew. After he

finished playing basketball, Curry went back home.

      Curry later received a phone call from an individual named Danacion whom

he knew through playing basketball. Danacion called Curry to get a ride home from

the Dewey Recreational Center, which was not unusual. Goodman, who was seven

months pregnant with Curry’s son, accompanied Curry to pick up Danacion. Curry

drove Goodman’s GMC Yukon to pick up Danacion.

      Curry backed into a parking spot and got out of the vehicle to get Danacion.

Curry and Danacion were standing outside the vehicle talking when Goodman told

Curry, “Something don’t look right” and the shots started. At that point, Curry was

standing next to the open driver’s side door. Goodman was in the passenger seat with

the door closed. Curry “[b]lacked out” for a moment, but remembered getting into

the vehicle but couldn’t find the keys. While he was getting into the vehicle, Curry

remembers “[t]he truck was getting shot at.” At that point in time, he did not know

if either he or Goodman had been hit. Curry then drove off and made it down the

street when Goodman told Curry that “she’d been grazed.” Photos admitted at trial

show an injury to Goodman’s left arm. Curry did not get hit that night.

      Curry testified that he was not aware that he was driving on a flat tire. When

he parked the Yukon, he noticed a hole in the front of the vehicle. When the vehicle

was being shot at, Goodman was able to get on the floorboard. Curry was able to get

                                         7
a look at the individual who shot at him that night. He confirmed that he was 100

percent certain that the person he identified in the photo lineup was the person that

committed the crime. Curry made an in-court identification of Bell.

      On cross-examination, Curry explained that he was talking to Danacion, who

was standing behind the driver’s seat with the door open, when he saw something

unusual that made him think someone was going to start shooting at him. Curry

testified that he saw more than one person but did not remember how many people.

He did not know anyone that would have a reason to shoot him. Curry clarified that

he saw one person pull a gun and point it at him, but he did not know how many

shooters were there because he blacked out. Curry was looking in the direction of

where the shots came from and saw more than one person by a car. He had not seen

any of those individuals before.

      Bobby King

      King is a police officer with the City of Waco. He assisted Officer Weiser find

the suspect vehicle lost in the pursuit. King talked to the owner of the vehicle,

Treffany Jones. Jones is Bell’s mother. King talked to Jones at her apartment after

she had called to report the vehicle stolen. During the course of the shooting

investigation, police learned that the same vehicle that Jones was attempting to

report stolen was involved in the shooting. Law enforcement did not believe the

vehicle was stolen; rather, they believed that Bell drove the vehicle.

                                          8
      Alexandria Goodman

      Goodman shares two children with Curry. On the night of June 7, 2021,

Goodman remembers riding with Curry in her 2004 Yukon “[t]o go pick up

Danacion to give him a ride home.” Goodman, who was seven months pregnant at

the time, sat in the front passenger seat while Curry drove. Curry backed into a

parking spot at the Dewey Recreational Center and took the keys out of the ignition.

Curry went inside the Dewey Recreational Center to get Danacion. While Curry

went inside, Goodman saw two boys sitting on the curb on her side of the vehicle.

The boys flashed a gun. Goodman described how the two boys “kept looking” and

that “one of them had messed with a gun and put it back and was looking[]” at

Goodman, towards her car, making her feel “uncomfortable.” Goodman then saw a

person getting out of a purple Challenger. That person “was on the phone [and] then

went back to the purple Challenger.”

      Curry and Danacion walked out of the gym to the car. Curry opened the front

driver’s side door and Danacion opened the rear driver’s side door. After that,

Goodman saw “sparks.” Goodman only realized she had been hit by something when

they were getting ready to drive off from the Dewey Recreational Center. Curry and

Danacion were outside of the vehicle when the shots were fired. Danacion left the

rear driver’s side door open and ran off while Curry got into the vehicle. Goodman

had to get the keys to the Yukon and put them in the ignition. Goodman then got

                                         9
down on the floorboard because she heard glass breaking when a bullet came through

the front windshield.

      Goodman testified that the person who shot was the same person she saw

come out of the purple Challenger. As Curry and Goodman drove away from the

Dewey Recreational Center, shots continued to be fired.

      Goodman confirmed the identification she made of the suspect in the shooting

from the photo lineup. She explained that the “95 percent” confidence level she

expressed at the time meant that she was “100 percent” sure and that she did not

have any doubts. Goodman also made an in-court identification of Bell.

      On cross-examination, Goodman explained that the man in the purple

Challenger went over to the boys sitting on the curb, spoke with them, walked back

to the purple Challenger while talking on the phone, and grabbed a gun out of the

purple Challenger. She also saw that the two people sitting on the curb had a gun but

did not know “if they end[ed] up giving the boy in the Challenger the gun or what,

but he went to the car to get a gun.” When Curry and Danacion came out of the

Dewey Recreational Center, the man by the purple Challenger had a gun “[b]ecause

he started shooting right after that, . . . [.] He didn’t go back to the boys sitting on

the curb again after that.” Goodman recalled telling Curry and Danacion, “I don’t

know what’s going on. But these two boys sitting right here, and they keep on




                                          10
looking, and they flashed a gun.” Goodman described one of the subjects sitting on

the curb as being 5’8” and 180 pounds.

      Neither party objected to the jury charge. The abstract portion of the charge

provided the following definitions for “deadly weapon” and “firearm” applicable to

Count I:

      “Deadly weapon” means a firearm or anything manifestly designed,
      made, or adapted for the purpose of inflicting death or serious bodily
      injury; or anything that in the manner of its use or intended use is
      capable of causing death or serious bodily injury.

      “Firearm” means any device designed, made, or adapted to expel a
      projectile through a barrel by using the energy generated by an
      explosion or burning substance or any device readily convertible to that
      use.

      The application portion of the jury charge stated:

      Now, if you find from the evidence beyond a reasonable doubt that on
      or about the 7th day of June, 2021, in McLennan County, Texas, the
      Defendant, Derwin DeWayne Bell, did then and there intentionally or
      knowingly threaten Robert Curry with imminent bodily injury by
      shooting at Robert Curry with a firearm, and did then and there use or
      exhibit a deadly weapon, namely a firearm, during the commission of
      the assault, then you will find the Defendant “Guilty” of Aggravated
      Assault as charged in Count I of the indictment.

      Unless you so find from the evidence beyond a reasonable doubt, or if
      you have a reasonable doubt thereof, you will acquit the Defendant of
      Aggravated Assault as charged in Count I of the indictment, and say by
      your verdict “Not Guilty.”




                                         11
      The jury returned a verdict of guilty in Count I of the indictment, aggravated

assault with a deadly weapon against Curry. The jury sentenced Bell to thirty years

in prison.

                             Sufficiency of the Evidence

      In his second issue, Bell complains that the evidence is legally insufficient to

convict Bell of aggravated assault. We address his second issue first as it would

afford Bell greater relief than his first issue. See Benavidez v. State, 323 S.W.3d 179,

182 (Tex. Crim. App. 2010) (“[A] finding of legal insufficiency on appeal would

interpose a jeopardy bar to retrial.”); see also Ex parte Reyes, 474 S.W.3d 677, 681

(Tex. Crim. App. 2015).

      The jury is the exclusive judge of the credibility of the evidence and the weight

to be given to that evidence. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App.

2020). As such, the jury is responsible for resolving conflicts in the testimony, is

free to believe some, all or none of a witness’s testimony, and may assign as much

or as little weight to a witness’s testimony as it sees fit. Id. Jurors may also draw

reasonable inferences from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). “[A]n inference is a conclusion reached by considering other facts

and deducing a logical consequence from them.” Id. at 16.

      When examining whether a criminal conviction is supported by legally

sufficient evidence, we compare the evidence to the elements of the offense as

                                          12
defined by a hypothetically correct charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997). We consider all the evidence, viewed in the light most

favorable to the verdict, along with the inferences that could reasonably be drawn

from the evidence. Hooper, 214 S.W.3d at 13. We do not assess the credibility of

the evidence, reweigh the evidence, nor substitute our judgment for that of the jury.

See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      The evidence is legally sufficient to support the conviction if any rational trier

of fact could have found each of the essential elements of the offense beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). “Each fact

need not point directly and independently to a defendant’s guilt, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction.” Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016)

(citation omitted); see also Garcia v. State, 667 S.W.3d 756, 761-62 (Tex. Crim.

App. 2023) (citation omitted) (“A proper review of evidentiary sufficiency considers

the cumulative force of the evidence.”).

      A person commits aggravated assault if the person commits assault as defined

in Texas Penal Code section 22.01 and the person: (1) causes serious bodily injury

to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon

during the commission of the assault. Tex. Penal Code Ann. § 22.02(a). A person

commits the offense of assault if the person (1) intentionally, knowingly, or

                                           13
recklessly causes bodily injury to another, including the person’s spouse; (2)

intentionally or knowingly threatens another with imminent bodily injury, including

a person’s spouse; or (3) intentionally or knowingly causes physical contact with

another when the person knows or should reasonably believe that the other will

regard the contact as offensive or provocative. Id. § 22.01(a).

      On this record, the jury could have reasonably inferred that Bell intentionally

or knowingly threatened Curry with imminent bodily injury by shooting at Curry

with a firearm. The eyewitness accounts and the forensic evidence showed that the

shooting was in the direction of the gold Yukon which Curry was driving. Both

Curry and Goodman testified that they identified Bell in a photo lineup as the person

that committed the offense. Curry identified Bell with a 100 percent confidence level

and Goodman identified Bell with a 95 percent confidence level, but in court she

identified Bell with a 100 percent confidence level.

      The evidence also supported a reasonable inference that Bell was at the Dewey

Recreational Center and was driving the purple Dodge Challenger that night. The

sign-in sheet from the night of the shooting shows that Bell signed in to the Dewey

Recreational Center. Law enforcement testified that the purple Dodge Challenger

fled the scene of the crime, speeding and driving without lights. Based on previous

encounters with the vehicle, law enforcement believed Bell drove the purple

Challenger, and Goodman identified Bell as the man that was in the purple

                                         14
Challenger at the Dewey Recreational Center. Although the defense argued there

was a possibility of two shooters and that Bell was not the person who shot at Curry,

we must defer to the responsibility the jury has to resolve the conflicts in the

testimony, to weigh the evidence the trial court admits into evidence in the trial, and

to draw inferences from the basic facts to the ultimate facts the jury must decide to

resolve the issue in dispute in the trial. Hooper, 214 S.W.3d at 13. By its verdict, the

jury rejected the defense’s theory that Bell was not the shooter.

      As the sole judge of the weight and credibility of the evidence, the jury bore

the burden of determining what to believe. See Metcalf, 597 S.W.3d at 855. Based

on the record before us, viewing all the evidence in the light most favorable to the

jury’s verdict, we conclude that a rational jury could have found, beyond a

reasonable doubt, that Bell committed the offense of aggravated assault with a

deadly weapon against Curry. See Tex. Penal Code Ann. § 22.02(a); see also

Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. Bell’s second issue is

overruled.

                                     Jury Charge

      In his first issue, Bell complains, “The trial court reached into Chapter 46 for

a definition of ‘firearm.’ The definition did not apply, but assuming it did, the trial

court did not include the portion of the definition that would have allowed Appellant




                                          15
to argue the State had not carried its burden. The error was not objected to but caused

egregious harm.”

      When reviewing alleged charge error, we determine whether error existed in

the charge and, if so, whether sufficient harm resulted from the error to compel

reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). “Only if we

find error do we then consider whether an objection to the charge was made and

analyze for harm.” Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d) (citations omitted). If charge error exists but the defendant

did not object to the alleged error at trial, we may reverse the judgment only if the

resulting harm is so egregious that the defendant did not receive a fair and impartial

trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);

see also Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). “Jury 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.” Allen v. State,

253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (citation omitted). In assessing the

degree of harm, we must consider the entire jury charge, the state of the evidence,

the argument of counsel, and any other relevant information revealed by the record.

See id.; Almanza, 686 S.W.2d at 171. An appellant must have suffered actual harm,

not merely theoretical harm. See Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012) (citing Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986)).

                                          16
      As indicated above, according to Texas Penal Code section 22.01, a person

commits the offense of aggravated assault if the person commits an assault and uses

or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code

Ann. § 22.01. Section 1.07(a)(17) defines “deadly weapon” for purposes of the entire

Penal Code, necessarily including whether an assault qualifies as an aggravated

assault under section 22.01. Id. § 1.07(a)(17). The definition of “deadly weapon”

includes “a firearm.” Id. Therefore, if a person uses or exhibits a firearm during the

commission of an assault, the person has committed the offense of aggravated

assault.

      Section 46.01(3) defines “firearm,” but only for purposes of Chapter 46 which

contains various prohibitions regarding the possession or carrying of certain

weapons in certain locations and under certain circumstances. Id. § 46.01(3). This

section indicates certain antique firearms, curio firearms, and replicas of such

firearms are not included in the definition of “firearm,” thereby making such items

exempt from Chapter 46’s prohibitions. Nothing in section 46.01(3) or any other

provision of the Penal Code makes it lawful for a person to assault another person

with an antique, curio or replica firearm, nor is there any Penal Code provision

indicating that an aggravated assault is not committed so long as the weapon being

used or exhibited during the commission of an assault is an antique, curio or replica




                                         17
firearm. No evidence was presented at trial that any firearm involved in this case

was an antique, curio or replica.

      Therefore, it would have been error for the court’s charge to have defined

“firearm” as that term is defined in section 46.01(3), because the inclusion of such a

definition would have given Bell a defense to which he was not entitled, to wit: that

the firearm used during the assault was an antique, curio or replica. But no such error

occurred, because the court’s charge did not define “firearm” as it is defined in

section 46.01(3). Instead, Bell complains that the court erred in failing to include

section 46.01(3)’s definition of “firearm” in its entirety, even though section

46.01(3) does not apply in this case. Bell cannot be heard to complain that the trial

court did not commit an error that would have worked in his favor. We conclude the

trial court did not err by omitting from the charge a definition that did not apply in

this case, either as an element of, or as a defense to, the charge of aggravated assault.

We overrule Bell’s first issue to the extent he argues the trial court erred by not

including section 46.01(3)’s definition of “firearm” in its entirety.

      In addition to complaining about what the charge did not include, Bell

complains about what the charge did include. The charge defined “firearm” as: “any

device designed, made, or adapted to expel a projectile through a barrel by using the

energy generated by an explosion or burning substance or any device readily

convertible to that use.” Bell argues it was error to include this definition because it

                                           18
comes from section 46.01(3) which does not apply in this case, and because it is

generally impermissible for a trial court to define terms which are not statutorily

defined.

       We agree the trial court should not have included a definition of “firearm” in

the charge, not because the definition was derived from an inapplicable statute, but

because it was not derived from an applicable statute. See Walters v. State, 247

S.W.3d 204, 214 (Tex. Crim. App. 2007) (“Normally, if the instruction is not derived

from the code, it is not ‘applicable law.’”); see also Garrison v. State, 726 S.W.2d

134, 138 (Tex. Crim. App. 1987) (en banc). In Garrison, the charge included a

definition of “knife” derived from section 46.01(7). While the Court of Criminal

Appeals held that “the trial court should not have included such definition in an

aggravated robbery charge[,]” the Court clarified that “[i]t is difficult to characterize

the definition as ‘error’ because it is not that the definition does not fit the weapon

used by appellant, but simply that the specific definition is set out for use with

Chapter 46 offenses.” Garrison, 726 S.W.2d at 138-39. Assuming without deciding

the mistake constituted error, the Court ultimately concluded Garrison was not

deprived of a fair trial. Id. at 139.

       Similarly, in this case, even if the definition of “firearm” in the charge

constituted error, we cannot reverse Bell’s conviction without first analyzing

whether or not the “error” constituted egregious harm by depriving Bell of a fair

                                           19
trial. Almanza, 686 S.W.2d at 171. “Egregious harm is a ‘high and difficult standard’

to meet, and such a determination must be ‘borne out by the trial record.’” Villarreal

v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (quoting Reeves v. State, 420

S.W.2d 812, 816 (Tex. Crim. App. 2013)); see Nava v. State, 415 S.W.3d 289, 298

(Tex. Crim. App. 2013) (“[Egregious harm] is a difficult standard to meet and

requires a showing that the defendants were deprived of a fair and impartial trial.”).

An error results in egregious harm only “if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory.”

See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). The harm must be

actual, not merely theoretical. Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App.

1986). When analyzing whether charge error results in egregious harm, we must

examine “the entire jury charge, the state of the evidence, including the contested

issues and weight of probative evidence, the argument of counsel and any other

relevant information revealed by the record of the trial as a whole.” Almanza, 686

S.W.2d at 171.

      The charge as a whole required the jury to find Bell used or exhibited a deadly

weapon, to wit: a firearm, during the commission of an assault. The charge’s

definition of firearm has not been shown to deviate in any way from the commonly

understood meaning of the word. We conclude the charge as a whole weighs against

a finding of egregious harm.

                                         20
      The evidence at trial showed that a firearm was used. Hazel explained what

“casings” are, the components of a bullet, and the procedures he used for marking

where he found casings. Bell does not dispute that the evidence at trial showed that

the weapon in question could rapidly discharge a large quantity of bullets. The

photographs admitted at trial show bullet defects in the gold Yukon as well as the

Altima and Mercedes that were at the crime scene. Goodman testified that she saw

a gun on the night of the shooting, and both Curry and Goodman testified regarding

the shooting. We conclude the evidence admitted at trial weighs against a finding of

egregious harm.

      In its closing argument, the State briefly addressed the use of the firearm in

terms of a deadly weapon: “A deadly weapon can be a lot of different things.

Obviously, in this case it’s a firearm. We’ve got 35 shell casings from that parking

lot to show that a firearm was used. And under the law, a firearm is automatically a

deadly weapon.”

      Most of defense counsel’s argument to the jury discussed the possibility of

two shooters and the lack of a positive identification that Bell was driving the purple

Challenger. Defense counsel argued that none of the witnesses testified that Bell was

driving the purple Challenger on the day of the shooting. Moreover, Curry did not

testify that he saw Bell point the gun at him and shoot him. Defense counsel

contended that there were probably two shooters because of the number of shell

                                          21
casings found on the scene, the testimony that shows there were two individuals on

the curb, and Goodman’s testimony gives rise to the possibility of three shooters.

Defense counsel’s arguments implied that one of the two individuals on the curb

could have been the shooter. We conclude the arguments of counsel weigh against a

finding of egregious harm.

      After reviewing the record, including the entire charge, the state of the

evidence, the arguments of counsel and other relevant information, we conclude the

alleged error in the charge did not result in egregious harm because it did not affect

the basis of the case, it did not deprive Bell of a valuable right or vitally affect a

defensive theory, and Appellant was not deprived of a fair and impartial

trial. Almanza, 686 S.W.2d at 171. We overrule Bell’s first issue.

                                     Conclusion

      Having overruled Bell’s issues, we affirm the judgment of the trial court.

      AFFIRMED.



                                                           KENT CHAMBERS
                                                               Justice

Submitted on June 27, 2025
Opinion Delivered April 8, 2026
Do Not Publish

Before Johnson, Wright and Chambers, JJ.


                                         22