Brian Espy v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00048-CR

BRIAN ESPY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1849531, Honorable David Hagerman, Presiding

September 24, 2025
MEMORANDUM OPINION 1
Before QUINN, C.J., and PARKER and DOSS, JJ.

Brian Espy appeals from his murder conviction. His three issues concern 1)

alleged error arising from the trial court’s refusal to submit an instruction on mistake of

fact; 2) alleged error arising from the denial of an unanimity instruction; and 3) the alleged

insufficiency of evidence establishing an element of felony murder. We affirm.

1 Because this matter was transferred from the Second Court of Appeals, we apply its precedent

when it conflicts with that of the Seventh Court of Appeals. TEX. R. APP. P. 41.3.
Background

This case involves appellant (a previously convicted felon) shooting Adel Elhindawi

who appellant thought was stealing a Jeep Grand Cherokee. In actuality, though, Adel

and his employee, Hasan were regaining possession of the vehicle after temporarily

loaning it to appellant’s mother. Mother had not returned it.

The State charged appellant with murder but under two different manner and

means. The first involved intentional killing under section 19.02(b)(1) of the Penal Code,

while the second encompassed felony murder under section 19.02(b)(3) of the same

code. Appellant’s unlawful possession of the firearm used to kill Adel served as the

predicate offense under the theory of felony murder. Trial was to a jury, which rendered

a general verdict of guilty for murder.

Issue One—Mistake of Fact Instruction

Via his first issue, appellant contends the trial court erred in denying his requested

instruction on mistake of fact. Allegedly, the record contained “evidence showing he

believed Adel . . . [was] stealing his car.” “That mistake of fact was relevant to [or

supportive of] Appellant’s claims of self-defense, necessity, and defense-of-property.”

There being evidence of mistake and the mistake purportedly being relevant and

beneficial to those affirmative defenses, the trial court supposedly erred in denying the

instruction on those grounds. We overrule the issue.

Section 8.02(a) of the Texas Penal Code states that it is a defense to prosecution

when the defendant “through mistake formed a reasonable belief about a matter of fact if

his mistaken belief negated the kind of culpability required for commission of the

offense.” TEX. PENAL CODE ANN. § 8.02(a) (emphasis added). The term, “kind of

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culpability” refers to the mental state required for criminal responsibility. Wall v. State,

No. 02-22-00173-CR, 2024 Tex. App. LEXIS 5697, at *62–63 (Tex. App.—Fort Worth

August 8, 2024, no pet.) (mem. op., not designated for publication). However, a “mistake

about the existence of a fact that would establish an affirmative defense to an offense,

rather than negating an element of the offense, does not raise a mistake-of-fact defense.”

Id. at *63. The current appeal having been transferred from the Fort Worth Court of

Appeals, our decision must accord with the precedent of that appellate court. TEX. R.

APP. P. 41.3; Xtria L.L.C. v. Int’l Ins. Alliance, 286 S.W.3d 583, 593–94 (Tex. App.—

Texarkana 2009, pet. denied). See also Sell v. State, 488 S.W.3d 397, 399 (Tex. App.—

Fort Worth, pet. ref’d). So, the aforementioned excerpts from Wall control here. And, in

so controlling, they require us to reject appellant’s contention that the theory of mistake

of fact could be used to foster his affirmative defenses. Thus, the trial court did not err in

withholding the requested instruction.

Issue Two—Unanimity Instruction

In his second issue, appellant argues the trial court erred in denying his unanimity

instruction. Allegedly, he was entitled to same because the two theories of murder under

which he was tried should be treated as separate offenses and, therefore, the jury was

obligated to be unanimous regarding the type of murder committed. We overrule the

issue.

Texas courts have concluded that subsections 19.02(b)(1), (2), and (3) of the

Texas Penal Code merely describe alternative theories of murder; each is not a distinct

offense. Jones v. State, No. 14-24-00474-CR, 2025 Tex. App. LEXIS 6582, at *8 (Tex.

App.—Houston [14th Dist.] August 25, 2025, no pet.) (mem. op., not designated for

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publication) (and cases cited therein); accord, Diko v. State, 488 S.W.3d 855, 858 (Tex.

App.—Fort Worth 2016, pet. ref’d) (stating that “[t]his court, on three previous occasions,

has rejected the argument advanced by Diko—that sections 19.02(b)(1) and 19.02(b)(2)

constitute two separate offenses . . . ”). In other words, they are different manner and

means of committing murder. And, while jury unanimity is required in all criminal cases,

“[j]urors . . . need not be unanimous about the specific manner and means of how an

offense was committed.” Diko, 488 S.W.3d at 858. Thus, the trial court did not err in

rejecting appellant’s request for a jury instruction informing jurors of the need to be

unanimous on whether appellant committed murder under section 19.02(b)(1) or section

19.02(b)(3). Accord Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987)

(holding similarly regarding accusations of intentional murder and felony murder).

Issue Three—Sufficiency of Evidence

The last issue implicates one of the two manner and means of committing murder,

that being felony murder. Appellant contends the evidence was legally insufficient for a

rational juror to believe beyond a reasonable doubt that he was advancing or furthering

the unlawful possession of a firearm offense when he fired shots at Adel. We overrule

the issue.

Again, the State accused appellant of committing murder in two ways. One was

intentional murder, the other, felony murder. That is, the indictment included both

intentional murder and felony murder. Moreover, both manner and means of committing

murder were included in the jury charge, and after deliberating, the jury returned a general

verdict.

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As observed by the court from which we received this appeal, “[w]hen the jury

renders a general verdict in an offense that may be committed in one of two ways and the

defendant fails to challenge the sufficiency of the evidence to support one theory, we

need not consider whether the evidence is sufficient to support the other theory as well.”

Pruett v. State, 484 S.W.3d 167, 169–70 (Tex. App.—Fort Worth 2015), rev’d in part on

other grounds, 510 S.W.3d 925 (Tex. Crim. App. 2017); L.M.W. v. State, 891 S.W.2d 754,

758 (Tex. App.—Fort Worth 1994, pet. ref’d); see also, Sanchez v. State, 376 S.W.3d

767, 775 (Tex. Crim. App. 2012) (stating that where a jury returns a general guilty verdict

on an indictment charging alternate methods of committing the same offense, the verdict

stands “if the evidence is sufficient to support a finding under any of the theories

submitted”). In other words, the appellant must attack the evidence underlying all

possible ways of proving murder contained in the jury charge. See Pruett, 484 S.W.3d at

169–70; L.M.W., 891 S.W.2d at 758 (overruling the sufficiency attack because the

appellant failed to address each manner and means alleged in the charge). The jury

having rendered a general verdict here and appellant having only questioned the

sufficiency of evidence underlying conviction for felony murder, we need not consider and

may overrule issue three, per Pruett and L.M.W.

The judgment of the trial court is affirmed.

Brian Quinn
Chief Justice

Do not publish.

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