Albert Gonzalez v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-25-00055-CR

ALBERT GONZALEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1682304

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION

A Tarrant County jury found Albert Gonzalez guilty of capital murder and assessed a

sentence of life imprisonment without parole. See TEX. PENAL CODE ANN. § 19.03(a)(2) (Supp.).

On appeal, Gonzalez argues that the trial court erred (1) by admitting extraneous-offense

evidence during guilt/innocence and (2) by including nature-of-conduct instructions in the

definition of the term “intentionally” in the abstract portion of the jury charge instead of tailoring

the definition to focus only on the result of the conduct.1

We find that Gonzalez was unharmed by the trial court’s decision to admit extraneous-

offense evidence over his lack of notice objection because his admission, that he obtained the

evidence during discovery, showed he was not surprised by it. We further find that the trial court

did not err by denying Gonzalez’s request to limit the definition of the term “intentionally” since

the offense as alleged included both result-of-conduct and nature-of-conduct elements. As a

result, we affirm the trial court’s judgment.

I. Gonzalez Knew About and Was Thus Unharmed by the Admission of an
Extraneous Offense

A. Factual and Procedural Background

Mahmmud Ghanim was shot and killed during a game room robbery. In support of its

case-in-chief, the State proffered the testimony of Gonzalez’s co-defendant, Suzann Aleman.

Without objection, Aleman testified that Gonzalez sought her assistance to rob a game room.

According to Aleman, Gonzalez said he had “a friend who kn[ew] a doorman at a game room

1
Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the
precedent of the Second Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3.
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and that they had been trying to . . . go and rob it.” Aleman testified that Gonzalez drove them to

pick up bullets for his gun and then on to the game room. Aleman got into the driver’s seat of

the vehicle and stayed behind while Gonzalez and another co-defendant entered the game room.

As a result, she did not witness what happened during the robbery.

Less than a week after the robbery, Aleman agreed to speak with the police. Outside of

the jury’s presence, the parties discussed the admissibility of Aleman’s prospective testimony

that Gonzalez pointed a gun at Aleman while confronting her about her willingness to cooperate

with the police. The State alleged that the evidence showed “a guilty conscience” and claimed,

“[I]t goes to show his motive to shut her up, keep her from speaking.” Gonzalez argued that

such testimony constituted an extraneous offense, while the State argued that matter was

“contemporaneous.”2 Gonzalez objected because, even though he had notice that Gonzalez had

pulled a gun on Aleman since he “receive[d] the matter in discovery,” “it was not listed in the

extraneous[-]offense notice.” The trial court overruled Gonzalez’s objection.

B. Analysis

In his first point of error, Gonzalez argues that the trial court erred by admitting an

extraneous offense for which he had no proper notice. Here, the State cited Rule 404(b) of the

Texas Rules of Evidence in support of its theory of admissibility because evidence of an

extraneous offense showing consciousness of guilt is probative of intent. See Hance v. State, 714

S.W.3d 775, 815 (Tex. App.—Fort Worth 2025, no pet.) (citing TEX. R. EVID. 404(b)(2)). As a

2
“To constitute an extraneous offense, the evidence must show that a crime or bad act was committed and that the
defendant was connected to it.” Allen v. State, 202 S.W.3d 364, 367 (Tex. App.—Fort Worth 2006, pet. ref’d) (citing
Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993)).
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result, the State was required to provide a Rule 404(b) notice to advise Gonzalez that it intended

to use the extraneous offense during the guilt/innocence phase of trial. See TEX. R. EVID.

404(b)(2). “Since the notice requirement of Rule 404(b) is a rule of evidence admissibility, then

it is error to admit Rule 404(b) evidence when the State has not complied with the notice

provision of Rule 404(b).” Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). It

is undisputed that the State did not provide the Rule 404(b) notice.

Even so, the applicable nonconstitutional-harm analysis requires us to disregard the error

unless it affected Gonzalez’s substantial rights. See TEX. R. APP. P. 44.2(b). We begin by noting

that “[t]he purpose of rule 404(b)’s notice requirement is to prevent surprise to the defendant and

apprise him of the offenses the State plans to introduce at trial.” Allen, 202 S.W.3d at 367 (citing

Hernandez, 176 S.W.3d at 823). Thus, in the context of lack of notice, the harm analysis is

unique. Hernandez, 176 S.W.3d at 825.

In Hernandez, the Texas Court of Criminal Appeals clarified that rather than conduct “the

usual harm analysis applied to the improper admission of evidence,” a reviewing court’s harm

for noncompliance with notice requirements of Rule 404(b) revolves around the question of

whether a defendant was unable to prepare his defense in a particular case. Id. That is, we

consider how the lack of notice harmed the defendant’s ability to prepare a defense to the

wrongfully admitted evidence and not whether the admitted evidence injured the jury’s verdict.

Id.; see Lair v. State, No. 02-12-00068-CR, 2013 WL 4033618, at *5 (Tex. App.—Fort Worth

Aug. 8, 2013, pet. ref’d) (mem. op., not designated for publication). When a defendant is not

surprised by the extraneous-offense evidence, “it cannot be said that [its] effect or influence was

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‘injurious’” even if its admission “may have had a substantial effect or influence on the jury’s

verdict.” Hernandez, 176 S.W.3d at 825.

Gonzalez specifically informed the trial court that he had received the extraneous-offense

evidence during discovery and did not claim that he was surprised by the information at trial. He

did not seek a continuance or other delay. See Webb v. State, 36 S.W.3d 164, 183 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d) (en banc). Gonzalez knew that Aleman would testify

several months before trial. His defensive strategy was to admit to the robbery and to the fact

that Ghanim was murdered. According to the defensive opening statement, the issue in the case

was whether the offense was capital murder or murder and whether, “in that moment,” Gonzalez

had “the intent to kill.” Gonzalez cross-examined Aleman and elicited positive information from

her that Gonzalez told her that no one was supposed to get hurt.3 That was supportive of his

defensive theory. Under these facts, we find that Gonzalez has not shown “how his defense

strategy might have been different had the State explicitly notified him that it intended to offer”

the extraneous-offense evidence. See Hernandez, 176 S.W.3d at 826.

Given that Gonzalez had actual knowledge of the extraneous offense and did not claim

surprise at trial, we find that he was unharmed by the State’s failure to include the extraneous

offense in its Rule 404(b) notice. As a result, we overrule Gonzalez’s first point of error.

3
Gonzalez argues that the extraneous-offense evidence “tended to show Appellant’s control of his weapon against
his trial theory.” Yet, evidence showing why the extraneous-offense evidence was admissible is not enough to show
harm from the State’s lack of notice. See Hernandez, 176 S.W.3d at 825.
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II. There Was No Jury-Charge Error

A. Procedural Background

The State’s indictment alleged that Gonzalez intentionally shot and killed Ghanim while

“in the course of committing or attempting to commit” robbery. (Emphasis omitted). The

abstract portion of the trial court’s jury charge contained the following definition of the term

“intentionally”: “A person acts intentionally, or with intent, with respect to the nature of his

conduct, or to a result of his conduct, when it is his conscious objective or desire to engage in the

conduct or cause the result.” TEX. PENAL CODE ANN. § 6.03(a).

During the charge conference, Gonzalez argued that “the definition of intentionally that is

applicable to capital murder is that ‘A [sic] person acts intentionally, or with intent, with respect

to a result of his conduct when it is his conscious objective or desire to cause the result.’” The

State responded by arguing that the definition of intentional conduct should not be limited to the

result of Gonzalez’s conduct but should also include a nature-of-conduct instruction since it had

alleged that the offense was committed while in the course of a robbery or attempted robbery.

The trial court agreed and declined Gonzalez’s proposed jury instruction limiting the definition.

In his last point of error, Gonzalez argues that the trial court erred by including the full

definition of the term “intentionally” in the abstract portion of the jury charge because the jury

“should have only been instructed that [Gonzalez] acted intentionally when it was his conscious

objective or desire to cause the result.”

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B. Standard of Review

“‘[T]he jury is the exclusive judge of the facts,’ but the trial court submits a charge to the

jury ‘distinctly setting forth the law applicable to the case.’” Alcoser v. State, 663 S.W.3d 160,

164 (Tex. Crim. App. 2022) (alteration in original) (quoting TEX. CODE CRIM. PROC. ANN. arts.

36.13, 36.14). “The charge is meant to inform the jury of the applicable law and how to apply it

to the facts of the case.” Id. at 164–65 (citing Delgado v. State, 235 S.W.3d 244, 249 (Tex.

Crim. App. 2007)). “Abstract paragraphs ‘serve as a glossary to help the jury understand the

meaning of concepts and terms used in the application paragraphs of the charge,’ and application

paragraphs apply the ‘pertinent penal law, abstract definitions, and general legal principles to the

particular facts and the indictment allegations.’” Id. at 165 (quoting Crenshaw v. State, 378

S.W.3d 460, 466 (Tex. Crim. App. 2012)). In general,

[r]eversible error in the giving of an abstract instruction . . . occurs only when the
instruction is an incorrect or misleading statement of a law that “the jury must
understand in order to implement the commands of the application paragraph,”
and the “failure to give an abstract instruction is reversible only when such an
instruction is necessary to a correct or complete understanding of concepts or
terms in the application part of the charge.”

Id. (quoting Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other

grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)).

“A jury-charge-claim analysis involves two steps: First, we determine whether the

charge is erroneous. If it is, then we must decide whether the appellant was harmed by the

erroneous charge.” Id. (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)).

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C. Analysis

“Capital murder under Texas Penal Code § 19.03(a)(2) is a ‘result of conduct’ offense.”

Turner v. State, 805 S.W.2d 423, 430 (Tex. Crim. App. 1991) (quoting Kinnamon v. State, 791

S.W.2d 84, 88 (Tex. Crim. App. 1990) (per curiam), overruled by Cook v. State, 884 S.W.2d 485

(Tex. Crim. App. 1994)). It “is defined in terms of one’s intent to produce a specified result.”

Id. “Not only must the accused be found to have intended to engage in the act that caused the

death, he also must have specifically intended that death result from that conduct . . . .” Id.

That said, the Texas Court of Criminal Appeals has “recognized that capital murder is a

result of conduct offense which also includes nature of circumstances and/or nature of conduct

elements depending upon the underlying conduct which elevates the intentional murder to capital

murder.” Rodriguez v. State, 146 S.W.3d 674, 677 (Tex. Crim. App. 2004) (quoting Patrick v.

State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995)). Here, the State alleged robbery as the

aggravating felony. See TEX. PENAL CODE ANN. § 19.02(b)(1) (Supp.), § 19.03(a)(2) (A person

commits capital murder if he intentionally or knowingly causes the death of an individual and

“commits the murder in the course of committing or attempting to commit” a robbery.).

Accordingly, “[i]n a capital murder case such as this one, the State must prove both that

the defendant intentionally caused the death of an individual and that he ‘committed this

intentional murder while in the course of committing or attempting to commit’ the aggravating

felony.” Riley v. State, 447 S.W.3d 918, 922 (Tex. App.—Texarkana 2014, pet. ref’d) (quoting

Patrick, 906 S.W.2d at 492). “Hence, the elements of the underlying felony are necessary

elements in proving capital murder.” Id.

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A person commits robbery when “in the course of committing theft . . . and with intent to

obtain or maintain control of the property, he . . . (1) intentionally, knowingly, or recklessly

causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in

fear of imminent bodily injury or death.” TEX. PENAL CODE ANN. § 29.02(a). “Theft includes a

nature-of-conduct element.” Torres v. State, 691 S.W.3d 138, 149 (Tex. App.—Austin 2024,

pet. ref’d) (citing TEX. PENAL CODE ANN. § 31.03(a)) (“defining theft as ‘unlawfully

appropriat[ing] property with intent to deprive the owner of property’” (alteration in original));

Herrera v. State, 527 S.W.3d 675, 678 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d)

(“explaining that unlawful appropriation element of robbery ‘is a nature-of-conduct element’”);

Hughes v. State, 897 S.W.2d 285, 295–97 (Tex. Cim. App. 1994) (“explaining that elevating

offense in capital murder may have nature-of-conduct or nature-of-circumstances element”)).

Accordingly, the offense of robbery “does not fit neatly into [a] category.” Ash v. State, 930

S.W.2d 192, 195 (Tex. App.—Dallas 1996, no pet.). As explained by our sister court:

To prove robbery, the State is required to prove that appellant “caused bodily
injury”; this refers to a result of the conduct. The portion of the charge requiring
that the jury find that appellant caused the bodily injury “in the course of
committing theft” refers to the circumstances surrounding the assaultive conduct.
And reference to “unlawful appropriation” refers to the nature of the conduct. All
three conduct elements, therefore, are appropriate . . . .

Id. (footnote omitted); see Barnes v. State, 56 S.W.3d 221, 234 (Tex. App.—Fort Worth 2001),

abrogated on other grounds by Hurd v. State, 322 S.W.3d 787, 793 n.5 (Tex. App.—Fort Worth

2010, no pet.) (per curiam); Siebel v. State, No. 02-12-00622-CR, 2014 WL 261053, at *7 (Tex.

App.—Fort Worth Jan. 23, 2014, pet. ref’d) (mem. op., not designated for publication) (noting

that aggravated robbery “contains result-of-conduct, nature of-conduct, and circumstances-
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surrounding-conduct elements”); Williams v. State, No. 05-12-01465-CR, 2014 WL 3756305,

at *5 (Tex. App.—Dallas July 30, 2014, pet. ref’d) (mem. op., not designated for publication).

Under the facts here, we conclude that the trial court did not err by denying Gonzalez’s

request to limit the definition of “intentionally” to include only the result-of-conduct portion of

the definition. See Torres, 691 S.W.3d at 149 (finding that “it was not error for the trial court to

include the nature-of-conduct portions of the intentional definition” in a capital murder case);

Barnes, 56 S.W.3d at 234; Siebel, 2014 WL 261053, at *7; Rodriguez, 146 S.W.3d at 677.

Having found no error in the trial court’s charge, we overrule Gonzalez’s last point of error.

III. Conclusion

We affirm the trial court’s judgment.

Scott E. Stevens
Chief Justice

Date Submitted: October 21, 2025
Date Decided: November 17, 2025

Do Not Publish

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