Jordan Shaun Rodgers v. the State of Texas

REVERSE and REMAND and Opinion Filed June 25, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00316-CR

JORDAN SHAUN RODGERS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F22-00524

MEMORANDUM OPINION
Before Justices Goldstein, Smith, and Garcia
Opinion by Justice Garcia
Appellant was convicted under the drive-by subsection of the aggravated

assault statute and a jury assessed punishment at twenty-four years in prison. In six

issues, he now argues (i) the jury charge was erroneous because it did not define

“motor vehicle,” or “intentional” and should not have included the word “solicits”

in the law of the parties definition, (ii) the evidence is insufficient to support the

conviction because there was no evidence that the car used in the shooting was a

“motor vehicle” as defined by statute, (iii) the judge caused egregious harm when he

explained “reasonable doubt” during voir dire, and (iv) the judgment is erroneous

because it fails to give appellant credit for time served before trial.
As discussed below, we conclude the evidence is sufficient to establish that

the Toyota Avalon car used in the drive-by shooting was a motor vehicle, and the

evidence is sufficient to support the inclusion of the solicitation mode of party-

liability in the charge. Further, appellant was not egregiously harmed by the absence

of the complained-of definitions in the charge. Because appellant’s counsel adopted

the trial judge’s reasonable doubt explanation, appellant is estopped to complain

about the explanation on appeal. We further conclude that while the record reflects

that appellant is entitled to pre-sentence time credit, it does not include sufficient

information to calculate the amount of credit to be awarded. Accordingly, we reverse

and remand this matter to the trial court for a determination of the amount of back

time credit and for reformation of the judgment in accordance with that

determination. In all other respects, the judgment is affirmed.

I. BACKGROUND

On October 31 2019, a group of teenagers mistakenly believed that seventy-

nine year old Gloria Jean Roque’s house was the home of Tommy Gouge, a local

gang member, and orchestrated a drive-by shooting. Roque, who was relaxing on

the couch by her front window, was stricken by bullets and died. The group was later

identified as appellant, and his acquaintances DA, RC, and KG.

Appellant was arrested. A juvenile court waived jurisdiction, certified

appellant to be tried as an adult, and transferred the case to adult court. Appellant

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was charged under the drive-by subsection of the aggravated assault statute. See TEX.

PENAL CODE ANN. § 22.02(b)(3).

The case was tried to a jury. The evidence at trial established that the drive-

by was appellant’s idea. Appellant was in a gang, Gouge was in a neighboring gang,

and appellant harbored significant animosity towards Gouge. Appellant requested

information on Gouge, asking for sightings in Pleasant Grove and any addresses

where he was known to stay in South Dallas. KG was Gouge’s ex-girlfriend, and

appellant enlisted her help and that of her new boyfriend DA, who each also disliked

Gouge. Appellant pestered KG for Gouge’s address throughout the month of

October.

While the various beefs stewed, Gouge filmed a video threatening DA. KG

posted the video, with her own commentary, to Instagram. Half an hour later,

appellant direct-messaged KG, “He’s talking all that noise. Wait until we find out

where he stay.”

Then, during an argument with appellant via Instagram direct messages,

Gouge proposed that they “fight it out” or “shoot it out” on a particular street in

South Dallas. Appellant forwarded a screenshot of the message to KG, and KG and

DA drove up and down that street looking for Gouge. KG noticed Roque’s car in her

driveway and mistook it for Gouge’s new girlfriend’s car. Believing that they had

found Gouge’s residence, she reported back to appellant.

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On October 30th, appellant decided Halloween would be the day to move on

Gouge. Appellant declared it “purge day” and said he was going to walk if he had

to.

Around 11:00 a.m. on Halloween, appellant informed DA that he had a gun.

DA said that he would try to get something that night, to which appellant responded,

“bet and get bullets” for “stainin[g] shi[t].” DA had already bought a fresh box of

nine-millimeter ammunition the night before. DA told appellant he would be with

an even younger minor named RC. Appellant told DA to be ready to “skoop” at 6:30

p.m.1

Transportation became an issue as the evening approached. At 5:44 p.m.,

appellant asked DA where he was, and DA told him he was at home. Appellant asked

DA what time he would be coming to Pleasant Grove, and DA said he did not know

because his mother was not going to drive him. Appellant told DA to tell his parents

he was going to a party, and said they were “lame” if they were not going to move

on Gouge that night. DA reassured appellant that he would do something that night

if he had to do it all by himself, and appellant replied, “Me too.”

DA later messaged a group that included appellant and asked if they were

going to pick him up. Appellant re-assured DA that they were “for real,” but

explained that he could not pick him up because he himself did not have a ride.

1
Trial testimony described “skoop” as meaning to pick someone up. Apparently, there was some
confusion as to who was going to skoop whom.
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Appellant told DA to try to convince his mother or RC’s mother to drive them to

him.

Meanwhile, KG was getting bored working the drive-through at Taco Bell.

She went “Live” on Instagram and appellant reached out to her. Shortly thereafter,

appellant showed up at Taco Bell with DA and RC in tow. KG gave them her keys

so they could sit in her car, a Toyota Avalon, and turn on the heater until the end of

her shift.

When KG’s shift ended at around 10:00 p.m., the group left the Taco Bell to

fill the car up with gas. According to KG, when she filled up gas, they still were not

sure what they were going to do. After pumping her gas, she got in the car and asked,

“What’s the play?,” and appellant suggested they “slide on” Gouge, meaning drive

by and shoot at his house. DA didn’t want to go through with the drive-by, but

appellant called him a “pussy” and he relented. KG was also hesitant, but she decided

to do it since they were all already in the car. From KG’s perspective, the

commitment to the drive-by was made during this five-minute conversation at the

gas station.

RC and appellant switched seats, which put RC in the front passenger seat and

appellant in the back with DA. Appellant and DA each had a gun, and RC did not.

KG then drove the group to Roque’s street. KG circled the block a couple of times,

and on the third lap she slowed down “[s]o they could shoot up the house.”

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The house was on the driver’s side of the street. According to KG, appellant

and DA were shooting from the back seat, with appellant shooting out of the driver’s

side window and DA shooting out of the sunroof.

Appellant did not deny that he was in KG’s car for the drive-by shooting. But

his counsel argued that he could not be one of the shooters because he was sitting in

the front passenger seat and would not have shot across the driver. Further, the

defense argued appellant was not responsible as a party because KG and DA would

have completed the drive-by with or without him.

The jury was charged on the law of the parties and found appellant guilty of

the charged offense. After a punishment hearing, the jury assessed punishment at

twenty-four years in prison. This timely appeal followed.

II. ANALYSIS

A. Evidentiary Sufficiency

Appellant’s first issue challenges the sufficiency of the evidence that he was

“in a motor vehicle” as defined by the applicable section of the Transportation Code.

TEX. TRANSP. CODE ANN. §501.002. According to appellant, because there was no

evidence the offense occurred in a motor vehicle, his punishment should have been

assessed as second-degree rather than first-degree felony.

We review a challenge to the sufficiency of the evidence under the standard

of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, we review

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all the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Arbanas v. State, No. 05-14-01376-CR, 2016 WL 1615592, at *5

(Tex. App.—Dallas Apr. 20, 2016, pet. ref’d) (mem. op., not designated for

publication) (citing Jackson, 443 U.S. at 319); Lucio v. State, 351 S.W.3d 878, 894

(Tex. Crim. App. 2011).

When conducting a sufficiency review, we defer to the factfinder’s role as the

sole judge of the witnesses’ credibility and the weight their testimony is to be

afforded. See TEX. CODE CRIM. PROC. ANN. art. 38.04; Brooks, 323 S.W.3d at 899.

This standard accounts for the factfinder’s duty to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). When the record supports conflicting inferences, we presume that the

factfinder resolved the conflicts in favor of the verdict and defer to that

determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

It is not necessary that the evidence directly proves the defendant’s guilt;

circumstantial evidence is as probative as direct evidence in establishing a

defendant’s guilt, and circumstantial evidence can alone be sufficient to establish

guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not point

directly and independently to guilt if the cumulative force of all incriminating

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circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.

Because evidence must be considered cumulatively, appellate courts are not

permitted to use a “divide and conquer” strategy for evaluating the sufficiency of the

evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead,

appellate courts must consider the cumulative force of all the evidence. Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017).

To prove aggravated assault, the State had to establish: (a) appellant

committed an assault as defined in § 22.01 [of the Penal Code] and: (1) caused

serious bodily injury to another, including the person’s spouse; or (2) used or

exhibited a deadly weapon during the commission of the assault. TEX. PENAL CODE

ANN. §22.02(a). Aggravated assault is a second-degree felony. See id. § 22.02(b).

But the offense becomes a first-degree felony if committed while in a motor vehicle,

as defined by Section 501.002 of the Transportation Code, and the actor: (A)

knowingly discharges a firearm at or in the direction of a habitation, building, or

vehicle; (B) is reckless as to whether the habitation, building, or vehicle is occupied;

and (C) in discharging the firearm, causes serious bodily injury to any person. See

TEX. PENAL CODE ANN. § 22.02(b)(3)(A)-(C)). Appellant was charged with the first-

degree felony.

Appellant maintains there is no evidence the offense was committed while in

a motor vehicle. Section 501.002 of the Transportation Code defines “motor vehicle”

as:

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(A) any motor driven or propelled vehicle required to be registered
under the laws of this state;

(B) a trailer or semitrailer, other than manufactured housing, that has a
gross vehicle weight that exceeds 4,000 pounds;

(C) a travel trailer;

(D) an off-highway vehicle, as defined by Section 551A.001; or

(E) a motorcycle or moped that is not required to be registered under
the laws of this state.

TEX. TRANSP. CODE ANN. § 501.002(17)(A)-(E).

Appellant’s argument is premised on the subsection (A) definition of motor

vehicle: “Any motor driven or propelled vehicle required to be registered under the

laws of this state.” Id. §501.002(17)(A). As appellant acknowledges, there is no is

doubt that the Toyota Avalon was a car, and thus a “motor driven or propelled

vehicle.” Nonetheless, appellant contends the State was also required to prove the

car was “required to be registered” in this state. On this record, we find the argument

unpersuasive.

A jury may draw reasonable inferences from the evidence. See Hooper, 214

S.W.3d at 16–17. In drawing inferences, the jury “may use common sense and apply

common knowledge, observation, and experience gained in ordinary affairs.” Acosta

v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). The question is whether the

inferences necessary to find the elements of the offense are reasonable based on the

combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict. Hooper, 214 S.W.3d at 16–17.

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The general rule for cars is that registration is required. Id. § 502.040. Not

more than 30 days after purchasing a vehicle or becoming a resident of the state, the

owner of a self-propelled vehicle must apply for registration of the vehicle for each

registration year in which the vehicle is used or will be used on a public highway.

Id. at (a)(1); TEX. TRANSP. CODE ANN. § 502.001(25). A registration year is twelve

consecutive months, and registrants are issued a registration receipt and an

“insignia” that is valid until the expiration of the registration year. TEX. TRANSP.

CODE ANN § 502.044. Appellant provides no authority, from the Transportation

Code, or otherwise, that there are any vehicles categorized as cars to be driven on

public roads that are exempt from the registration requirements.

Notwithstanding the technical mechanics of the Transportation Code, Texas

residents have common knowledge, based on ordinary life experience, that cars must

be registered to be lawfully driven on public roads. The jury was entitled to draw on

this common knowledge and experience in weighing the evidence to determine the

facts of this case. That evidence established that KG was driving a 2014 Toyota

Avalon—a car—on public roads. She used the car for transportation to her place of

employment. She filled the car up with gas. And she drove the car to Roque’s street,

first for reconnaissance and then for the drive-by shooting.

Moreover, the car’s status as a motor vehicle was uncontested. There was no

evidence to suggest that the vehicle was not required to be registered. No evidence

identified the car as unique or somehow exempt from the commonly known

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registration requirements. There was no indication that KG had recently purchased

the car or had not resided in this state for thirty days. From these facts, the jury could

reasonably infer that KG’s car was a motor vehicle as defined by the statute. We

defer to the jury’s resolution of this fact. See Murray v. State, 457 S.W.3d 446, 449–

49 (Tex. Crim. App. 2015).

In reaching this conclusion, we note that “motor vehicle” has several

definitions in the Transportation Code. Chapter 502, the chapter pertaining to vehicle

registration, defines a motor vehicle as “a vehicle that is self-propelled.” TEX.

TRANSP. CODE ANN. § 502.001(25). The aggravated assault statute, however, does

not use this definition. Instead, it incorporates the motor vehicle definition from the

Transportation Code chapter pertaining to certificates of title. Id. §§ 501.001,

002(17)(A).

Within the Penal Code, the statutory provisions sometimes define “vehicle,”

or “motor vehicle” in the body of the statute. See, e.g., TEX. PENAL CODE ANN.

§32.34 (motor vehicle means “a device in, on, or by which a person or property is or

may be transported . . . .”). Other sections of the Penal Code incorporate different

definitions from the Transportation Code, none of which describe a motor vehicle as

one that is “required to be registered in this state.” See, e.g., TEX. PENAL CODE ANN.

§§ 38.04(c)(1) (incorporating definition from TEX. TRANSP. CODE ANN. 541.201);

TEX. PENAL CODE ANN. §31.11 (same). Of all these definitions, the aggravated

assault statute at issue here is the only statute in the Penal Code that utilizes the

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section 501.002 definition requiring registration. Compare, TEX. PENAL CODE ANN.

§§ 22.05, 23.34(2), 28.01(4), 30.01(3), 31.11, 32.34, 38.04(c)(1) with TEX. PENAL

CODE ANN. § 22.02(b)(3).

There is no explanation as to why the Legislature decided to apply the motor

vehicle definition pertaining to certificates of title (providing the vehicle must be

required to be registered in this state) to drive-by shootings.2 But we cannot conclude

that in so doing, the Legislature intended to foreclose a conviction under the drive-

by shooting statute unless there is direct evidence that a vehicle used for the crime

was required to be registered, particularly when the issue is uncontested. See Wood

v. State, ___ S.W.3d___, 2024 WL 2306277, at *2 (Tex. Crim. App. 2024) (courts

interpret statute according to its plain meaning unless plain meaning leads to absurd

results). Appellant has provided no authority to suggest otherwise. We resolve

appellant’s first issue against him.

B. Charge Error

Appellant’s second, third, and fourth issues argue the charge was erroneous.

Reviewing claims of charge error is a two-step process. Campbell v. State, 664

S.W.3d 240, 245 (Tex. Crim. App. 2022) (citing Ngo v. State, 175 S.W.3d 738, 743

(Tex. Crim. App. 2005)). First, we must determine whether error exists. Id. Second,

2
Indeed, use of the §501.001 definition in the statute raises many interesting questions about its
application. For example, can a defendant be charged under the statute if the self-propelled vehicle was
purchased within thirty days? Does the statute apply when a vehicle is driven by an individual from another
state who has recently arrived in Texas?
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if there is error, we must decide whether the appellant was harmed and if the harm

is sufficient to warrant reversal. Cyr v. State, 665 S.W.3d 551, 556 (Tex. Crim. App.

2022) (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)).

The purpose of the trial court’s charge “is to inform the jury of the applicable

law and guide them in its application to the case.” Delgado v. State, 235 S.W.3d 244,

249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex.

Crim. App. 1996)). Charge error stems from the denial of a defendant’s right to have

the trial court provide the jury with instructions that correctly set forth the “law

applicable to the case.” Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021).

Because the trial court is obligated to correctly instruct the jury on the law applicable

to the case, it is ultimately responsible for the accuracy of its charge and the

accompanying instructions. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App.

2018) (citing Delgado, 235 S.W.3d at 249). All alleged jury-charge error must be

considered on appellate review regardless of whether it was preserved in the trial

court. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Therefore,

when the charge is inaccurate, the trial court errs, and the error is subject to the

appropriate harm analysis. See Bell, 635 S.W.3d at 645.

1. Defining “Motor Vehicle”

Appellant argues the jury charge was erroneous because it failed to define

“motor vehicle.” According to appellant, the absence of a definition deprived the

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jury of an opportunity to find that KG’s Toyota Avalon was not required to be

registered in this state.

The Code of Criminal Procedure requires that jury instructions be limited to

the law of the case. See TEX. CODE CRIM. PROC. ANN. art. 36.14. The law of the case

includes terms that are statutorily defined. See Green v. State, 476 S.W.3d 440, 445

(Tex. Crim. App. 2012). Because the aggravated assault statute incorporates the

definition of motor vehicle set forth in section 501.002 of the Transportation Code,

the charge should have included the statutory definition.

The omission of a motor vehicle definition from the charge, however, was not

raised in the court below. Therefore, we will reverse only if the trial court’s error

resulted egregious harm. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App.

2022).

The appropriate inquiry for egregious harm is fact and case specific. Gelinas

v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d

483, 489 (Tex. Crim. App. 2011). Egregious harm is a difficult standard to meet.

Alcoser, 663 S.W.3d at 165.

Errors that result in egregious harm are those “that affect the very basis of the

case, deprive the defendant of a valuable right, vitally affect the defensive theory, or

make a case for conviction clearly and significantly more persuasive.” Taylor, 332

S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). In examining the record to

determine whether charge error has resulted in egregious harm, we consider the

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actual degree of harm in light of (1) the entirety of the jury charge; (2) the state of

the evidence, including the contested issues and weight of probative evidence; (3)

the arguments of counsel; and (4) any other relevant information revealed by the trial

record as a whole. Id. at 171; Alcoser, 663 S.W.3d at 165.

Here, notwithstanding the absence of a definition, the application paragraph

addressed the “motor vehicle” element and asked the jury to find whether appellant

committed the act while in a motor vehicle. Tracking the indictment, the application

paragraph instructed:

Now, if you find from the evidence beyond a reasonable doubt that on
or about the 31st day of October, 2019, in Dallas County, Texas, the
defendant . . . acting alone or as a party as that term has been defined,
did then and there, while in a motor vehicle, and while reckless as to
whether a habitation was occupied, knowingly discharge a firearm, a
deadly weapon, at or in the direction of the habitation, and in
discharging the firearm, the defendant caused serious bodily injury to
Gloria Roque, then you will find the defendant guilty of aggravated
assault, as charged in the indictment.

Thus, the jury could not find appellant guilty unless it found that the car was

a motor vehicle. As we have concluded, the jury could rely on its common sense and

experience to draw appropriate inferences from the evidence to make this

determination.

The charge also included statutory definitions for “knowingly,” and

“recklessly,” as applied to the underlying offense. The jury was also instructed on

the law of the parties. Consequently, application paragraphs properly charged the

jury on both the underlying offense and party responsibility, the key issues in the

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case. Viewed as a whole, the entirety of the charge weighs only slightly in favor of

harm.

As previously discussed, the evidence was sufficient for the jury to reasonably

conclude that KG’s car was a motor vehicle. Moreover, appellant’s defense that the

drive-by shooting would have occurred with or without him did not turn on whether

the Toyota Avalon was required to be registered in this state. Likewise, nothing in

the arguments of counsel or the remainder of the record touched on the vehicle’s

registration requirements. Indeed, the record reflects that no one viewed the

registration requirement as germane to the main issues in the case. We therefore

conclude that the court’s failure to define motor vehicle did not cause appellant

egregious harm. See Alcoser, 663 S.W.3d at 165. Appellant’s second issue is

resolved against him.

2. Defining Intent

The Penal Code provides that a person is responsible as a party if, “acting with

intent to promote or assist the commission of an offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the offense.” TEX. PENAL

CODE ANN. § 7.02(a)(2). Appellant’s fourth issue argues the jury charge was

erroneous because it failed to define intent in this context.

Appellant failed to object to the absence of the definition. Assuming arguendo

that the definition was law of the case necessitating definition, its omission was

reversible only if appellant suffered egregious harm. Chambers v. State, 580 S.W.3d

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149, 154 (Tex. Crim. App. 2019). One suffers egregious harm when the omission

affects the very basis of the case, deprives the defendant of a valuable right or vitally

affected a defensive theory. Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App.

2020). In the present case, there is no indication that the omission affected the very

basis of the case or otherwise denied appellant a fair and impartial trial.

There was considerable evidence supporting a finding that appellant acted as

a party to the drive-by shooting. A month before the shooting, appellant enlisted

KG’s assistance in locating Gouge’s residence so he could “slide” on him. Moreover,

appellant not only conceived of the plan, he also talked about it with KG and DA

and on social media for days before travelling with the group to conduct the shooting.

Under these circumstances, while the jury may not have been told what “intent”

meant, they nonetheless had the requisite basis to infer that appellant’s actions

reflected a conscious desire or objective to promote or assist others in committing

the crime. See TEX. PENAL CODE ANN. § 6.03(a). See TEX. PENAL CODE ANN. §

6.03(a) (stating that 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).

Appellant contends the evidence shows he wanted to shoot at the house, but

did not want to shoot anyone. Therefore, appellant argues that the jury would have

struggled to find that appellant acted intentionally had they been given a definition.

This argument is misplaced.

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Whether appellant intended to shoot anyone is immaterial in this context. The

underlying offense consisted of knowingly discharging a firearm at a dwelling with

reckless disregard for whether it was occupied, causing serious bodily injury. See

TEX. PENAL CODE ANN. § 22.02(b)(3)(A)-(C). As previously noted, the charge

defined “knowingly” and “recklessly.” Intent was not a culpable mental state for the

underlying offense. Rather, intent was pertinent to whether, as a party, appellant

acted with the intent to promote or assist in the commission of the underlying

offense. The charge also instructed the jury that “mere presence will not constitute

one a party to an offense,” further mitigating the chance the jury would find appellant

responsible as a party without finding the requisite intent. Accordingly, the charge

as a whole does not support a finding of harm.

While the prosecutor referenced her voir dire example of party liability again

during closing argument, this example illustrated the concept of the parties having

different roles in the crime, and did not suggest a meaning of “with intent” that was

inconsistent with the statutory definition. Defense counsel did not argue that

appellant did not intend to participate in the drive-by shooting. Instead, the main

thrust of the argument was that appellant was not the shooter and the shooting would

have occurred regardless of whether appellant was present. And while he argued that

appellant’s numerous social media posts were merely bravado, he conceded that

appellant was in the car that night. The arguments of counsel do not support a finding

of harm.

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We have also considered the remainder of the record, and find nothing to

suggest harm. Therefore, we conclude the omission of the definition from the charge

did not result in egregious harm. See Alcoser, 663 S.W.3d at 165. Appellant’s fourth

issue is resolved against him.

3. Law of the Parties—Solicitation

A person is criminally responsible as a party to an offense if the offense is

committed by her own conduct, by the conduct of another for which she is criminally

responsible, or by both. TEX. PENAL CODE ANN. § 7.01(a). To establish guilt under

the law of the parties, the evidence must show that, at the time of the offense, the

parties were acting together, each contributing some part toward the execution of

their common purpose. Barrientos v. State, 539 S.W.3d 482, 490 (Tex. App.—

Houston [1st Dist.] 2017, no pet.).

A trial court must charge the jury fully and affirmatively on the law applicable

to every issue raised by the evidence. Bargas v. State, 252 S.W.3d 876, 901 (Tex.

App.—Houston [14th Dist.] 2008, pet. ref'd). A law-of-the-parties instruction is

proper if sufficient evidence supports a jury verdict that the defendant is criminally

responsible under the law of parties. Id.

The court’s charge to the jury concerning the party liability acts tracked the

applicable statutory language:

A person is criminally responsible as a party to an offense if the offense
is committed by his own conduct, by the conduct of another for which

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he is criminally responsible, or by both. Each party to an offense may
be charged with the commission of the offense.

A person is criminally responsible for an offense committed by the
conduct of another 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. Mere presence
alone will not constitute one a party to an offense.

See TEX. PENAL CODE ANN. § 7.03 (a)(2). During the charge conference, appellant

objected to this definition and requested that the term “solicits” be excluded because

there was no evidence that appellant “solicited” the offense. The trial court overruled

the objection. Appellant’s argues the trial court erred by refusing to narrow the party

liability definition as requested.

“Generally, a charge is sufficient to support a conviction on the parties theory

if it instructs the jury on the law of parties in the abstract portion of the charge and

the application paragraph incorporates those instructions by reference.” Vasquez v.

State, 389 S.W.3d 361, 368 (Tex. Crim. App. 2012); Chatman v. State, 846 S.W.2d

329, 332 (Tex. Crim. App. 1993). “However, it is error for a charge not to apply the

law of parties directly to the facts when requested.” Id. (citing Greene v. State, 240

S.W.3d 7, 15 (Tex. App.—Austin 2007, pet. ref’d); see also Vasquez, 389 S.W.3d

at 368. An application paragraph that incorporates law of parties by using the words

“acting alone or as a party” is considered adequate if the defendant does not request

an instruction more specific to the case. See Greene, 240 S.W.3d at 15 (citing Marvis

v. State, 36 S.W.3d 878, 880 (Tex. Crim. App. 2001)). But if a defendant requests

“that the application paragraph refer only to those specific party-liability acts that
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are supported by the evidence, then he is entitled to such a narrowing.” Vasquez,

389 S.W.3d at 368 (emphasis added); see also Campbell v. State, 910 S.W.2d 475,

477 (Tex. Crim. App. 1995) (“A defendant who objects to a general reference to the

law of parties in the application paragraph is entitled to increased specificity and to

have the law of parties applied to the facts of the case the “statutory modes of

conduct that constitute party liability” as “solicited, encouraged, directed, aided or

attempted to aid.”). Id. “The failure to narrow the specific modes of party-liability

conduct when properly requested is reversible error if the defendant has suffered

actual harm to his rights.” Id.

Recognizing that the “modes for party liability are not statutorily defined,”

this Court has adopted dictionary definitions. Barradas v. State, No. 05-14-01271-

CR, 2015 WL 6157169, at *5 (Tex. App.—Dallas Oct. 20, 2015, no pet.) (mem. op.,

not designated for publication). Solicit means “to move to action; serve as an urge

or incentive to INCITE.” Id. (citing Webster’s 3rd New Int’l Dictionary 2169

(1981)) (emphasis in original). Applying that definition, there was evidence from

which a reasonable jury could conclude that appellant “solicited” the offense.

In determining whether to instruct the jury on the law of the parties, courts

may consider events that occurred before, during, and after the commission of the

crime. Goff v. State, 931 S.W.2d 537, 545 (Tex. Crim. App. 1996). Here, appellant’s

Instagram messages indicated that he wanted to “slide” on Gouge for almost the

whole month of October. He pestered KG for Gouge’s address, and he asked DA to

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get ammunition. He then declared that Halloween was “purge day,” and when he

couldn’t get a ride, he contacted KG and showed up at her job. According to KG,

the drive-by was appellant’s idea and the decision to commit the drive-by as a group

that night was made during a five-minute conversation in her car after she finished

pumping gas. During that conversation, KG agreed to drive. DA got cold feet, but

when appellant called him a “pussy,” he agreed to participate. Thus, the jury could

conclude that appellant solicited DA, KG, or both to participate in the drive-by with

him that night. Because the evidence supports the inclusion of the solicitation mode

of party liability, the trial court’s instruction was not erroneous. Appellant’s third

issue is resolved against him.

C. Reasonable Doubt

During jury selection, the trial judge told the jurors “There is no definition of

beyond a reasonable doubt, but it’s what it means to you. But it is the highest burden

of proof in – in – in our country, you know, so they’ll talk to you a little bit more

about that as well.” Appellant’s sixth issue argues the judge’s comment caused

“egregious harm.”3 We conclude appellant is estopped from raising this issue on

appeal.

A defendant can be estopped on appeal by his attorney’s conduct at trial, even

if he did not invite the error. See Ruffins v. State, 666 S.W.3d 636, 643 (Tex. Crim.

3
Appellant’s statement of the issues also describes the comment as a due process violation.

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App. 2023). “Estoppel is a flexible doctrine that takes many forms.” Deen v. State,

509 S.W.3d 345, 348 (Tex. Crim. App. 2017). Under the more general principle of

estoppel, “a party may be estopped from asserting a claim that is inconsistent with

that party’s prior conduct.” Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App.

2003).

For example, in Ruffins, the defendant’s attorney stated that he was “good”

with a reasonable-doubt instruction regarding accomplice witness testimony, and

then complained on appeal that the instruction should have been different. Ruffins,

666 S.W.3d at 643. Although it could not be said that he “invited” the error since it

was already in the charge, he bore some responsibility for the erroneous instruction

because his attorney discussed it with the judge and said, “I’m good.” Id.

Consequently, he was estopped from complaining about the accomplice witness

instruction on appeal. Id.

Here, when the trial judge made the complained-of comment, appellant’s

counsel stood silent and did not object. Then, when the prosecutor discussed a

different definition of reasonable doubt, defense counsel objected, stating, “I have

to object to that, Your Honor. Beyond a reasonable doubt is what it is to each of

these jurors. Counsel cannot tell them what reasonable doubt is and what it is not.”

When it was defense counsel’s turn to elaborate on the meaning of reasonable

doubt, he explained that there “was no definition” and that it could mean different

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things to different jurors. He later adopted the trial court’s what-it-means-to-you

explanation:

Okay. Why am I putting this up here? What I’m trying to do is get you
to understand the concepts of reasonable doubt. There is no definition.

The fed—federal government down the street, if you go to the federal
courthouse, they have a lovely definition. It used to look just like ours.
And then, the legislators said, no, it’s now what it means to you, it
means to you, and means to you.

Under these circumstances, we need not address the propriety of the judge’s

comments because appellant’s attorney advocated the judge’s explanation in an

objection and then adopted it as his own. These actions are inconsistent with

appellant’s current claim that the jury should have been told something different.

Because his position in the trial court is inconsistent with the argument he now seeks

to make, we conclude appellant is estopped from raising the issue on appeal.

Appellant’s sixth issue is resolved against him.

D. Credit for Time Served

Appellant’s fifth issue argues he is entitled to credit for time served during

various periods of custody and detention, and the record does not include a finding

quantifying the amount of credit appellant should have been awarded. The State

agrees that appellant is entitled to credit and the record does not include sufficient

information for this court to reform the judgment.

A defendant is given credit on his sentence for the time that he has spent in

jail for the case from the time of his arrest and confinement until his sentence by the

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trial court. See TEX. CODE CRIM. PROC. ANN. art. 42.03 § 2(a)(1). This includes time

the defendant has spent in juvenile detention prior to his sentencing as an adult. See

Ex. Parte Gomez, 15 S.W.3d 103, 103–04 (Tex. Crim. App. 2000).

The judgment here only includes two days of back time credit. But the record

indicates that appellant was in jail from “September 2021 to May 19, 2022,” and “in

detention” on certain days in March 2020. Although an appellate court may reform

a judgment to “speak the truth” when it has the necessary information, TEX. R. APP.

P. 43.2; Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1992, pet. ref’d),

the absence of a finding concerning how many days credit appellant should have

been awarded precludes reformation here. While the record reflects that appellant

was entitled to more than two days’ credit, the information is insufficient to calculate

the exact amount of additional credit he should receive.

Accordingly, we conclude the record is insufficient for this Court to reform

the judgment. We sustain appellant’s fifth issue, and reverse and remand this matter

to the trial court for a determination of the amount of back time credit required by

Texas Code of Criminal Procedure article 42.03, section 2(a)(1) and for reformation

of the judgment in accordance with that determination. See Jones v. State, No. 05-

22-00570-CR, 2023 WL 3963990, at *2 (Tex. App.—Dallas June 13, 2023, no pet.)

(mem. op., not designated for publication); Largher v. State, No. 05-14-00440-CR,

2015 WL 6781933, at *4 (Tex. App.—Dallas Nov. 6, 2015, no pet.) (mem. op., not

designated for publication).

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III. CONCLUSION

We reverse and remand this matter to the trial court for a determination of the

amount of back time credit required by Texas Code of Criminal Procedure article

42.03, section 2(a)(1) and for reformation of the judgment in accordance with that

determination. In all other respects, the judgment is affirmed.

/Dennise Garcia/
DENNISE GARCIA
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
230316F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JORDAN SHAUN RODGERS, On Appeal from the 195th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F22-00524.
No. 05-23-00316-CR V. Opinion delivered by Justice Garcia.
Justices Goldstein and Smith
THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court

is REVERSED and the cause REMANDED for a determination of the amount of

back time credit and for reformation of the judgment in accordance with that

determination. In all other respects, the judgment is affirmed.

Judgment entered June 25, 2024.

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