Full Opinion

Opinion issued October 23, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-24-00757-CR ——————————— LUIS LUNA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris, Texas Trial Court Case No. 1876291 OPINION Luis Luna was convicted of the capital murder of his 8-month-old daughter.1 He was assessed the mandatory punishment of confinement for life without parole.2 1 See TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a)(2), (8). 2 See id. § 12.31(a). On appeal, Luna concedes that the “evidence shows that [his daughter] died of suffocation.” But he argues that there was “no evidence from which a jury could rationally infer that [he] suffocated her or was responsible for someone else” doing so. He further contends that the trial court reversibly erred in excluding evidence and in its jury charge. We affirm. Background Luna and Ya’Niece Mason were in a dating relationship, and they had a daughter together, S.M. At the time of S.M.’s birth in December 2019, Luna’s relationship with Mason had ended. Shortly after, Luna moved into a one-bedroom apartment with four other men—Trevonte and Trevington Moulton, Henry Matthews, and Ladarrean Watson. In early 2020, Mason and S.M. began visiting Luna at his apartment. And they stayed with him in a sunroom that he used as a bedroom. The sunroom was situated off the living room and was separated by a sliding glass door and curtains. According to Mason, Luna’s roommates “never came in there.” On Friday, August 21, 2020, Luna asked Mason to bring S.M. over to spend the weekend with him. Mason noted that it was the first time Luna had asked her to leave S.M. alone with him. Mason brought S.M. to Luna’s apartment, along with a 2 car seat, clothes, blankets, and wipes. Mason testified that S.M. was a healthy 8-month-old child and did not have any major health issues or breathing problems. On Saturday, August 22, 2020, S.M. visited with Luna’s roommates in the living room of the apartment. Roommates testified that S.M. seemed fine and had no injuries. The trial court admitted into evidence a video of S.M. taken that afternoon. In the video, S.M. appears content. On Sunday, August 23, 2020, S.M. again visited with Luna’s roommates. According to Travonte, S.M. appeared healthy and uninjured. He recalled seeing Luna take S.M. into the sunroom later that afternoon. The sunroom door was closed, the curtains were drawn, and he never heard any noise. He did not see anyone else go in or out. At 3:30 p.m., according to Luna’s cell phone records, an unidentified person—referred to as “4”—brought Luna “a gram” of something. An hour later, Luna contacted Mason and asked to keep S.M. “for a week” so he could take her to visit people on Tuesday. Mason agreed, but asked to come over and bring S.M. more clothes. Luna refused—claiming he was about to leave and take S.M. to visit people that day. Mason asked where Luna was taking S.M. Luna told Mason not to question him. 3 From 6:00 to 7:30 p.m., Luna visited pornographic websites on his phone. At 9:30 p.m., Mason texted Luna and asked about S.M. and requested a photo. At 11:45 p.m., Luna responded: “stfu yes she good.” Shortly after, roommate Trevonte, who had been asleep in the living room, awoke to a “bunch of yelling and screaming.” According to Trevonte, Luna came out of the sunroom holding S.M. and screaming “she can’t breathe.” S.M. was “lifeless” and her lips were blue. Luna was “frantic” and tried to perform CPR. Trevonte called 911. According to roommate Matthews, who had also been asleep in the living room, Luna ran out of the sunroom “scared [and] seeking help.” Luna “threw” S.M. on Matthews, “as in, like, help me, help me.” S.M. was laid on the floor, and it seemed to Matthews that her chest was “caving in.” Roommate Trevington testified that he arrived home at 8:00 or 9:00 p.m. that night, and Luna and S.M. were in the sunroom. The door was closed, and he did not hear any noise. A friend, Ryan Jeng, was in the bedroom playing a game. Trevington went to sleep in the living room and later awoke to Luna “alerting that his baby was not waking up.” Trevington “could tell she wasn’t breathing,” and she was “foaming at the mouth.” Luna told him that S.M. was in her car seat and that the straps were too tight. 4 Roommate Watson arrived home around 11:00 p.m. that night. Luna was in the sunroom with the door closed. And Watson did not see anyone else enter or leave. Thirty minutes to an hour later, Luna came out of the sunroom. He “had the baby in his hand like the cub on Lion King just holding it up,” and “just shaking the baby not just violent, violent.” It was immediately apparent to Watson that S.M. was dead—she was not breathing, and her face was blue. According to Watson, Luna claimed to have left S.M. in her car seat “accidentally with the straps too tight; and she basically choked.” But S.M. had “like, a belt mark” on her neck—“[l]ike, somebody had tried to tie something real, real, real tight to suffocate” her. And she did not have that mark when Watson saw her earlier that weekend. Paramedic J. Shivers testified that he was dispatched to the scene at 12:24 a.m. on Monday, August 24, 2020. When he arrived, S.M. had no pulse and was not breathing. Shivers noted “ligation marks around her neck” and what appeared to be “a thermal burn around her mouth”—which was “discolored and white.” Her skin tone was poor and abnormally pale. And her core temperature was “already kind of low”—at 95.9 degrees. He opined that “there had been some sort of prolonged downtime before 911 was called.” Harris County Sheriff’s Office (HCSO) Deputy D. Papa spoke with Luna at the scene. He testified that Luna told him that he was the last person to see S.M. 5 alive. In Deputy Papa’s body camera video admitted into evidence, Luna stated that he and S.M. went to sleep at 7:00 p.m. Sunday in the sunroom. S.M. slept in her car seat. And, at 9:00 or 10:00 p.m., Luna woke up and saw S.M. slouched down in her car seat, with the seat belt straps up near her neck, and she was not breathing. HCSO Deputy J. Ferrell also spoke with Luna at the scene, and his body camera video was admitted into evidence. In the video, Luna stated that, prior to the events, S.M. did not have any health issues or injuries. He noted that S.M.’s breathing had recently seemed “off”—as in, more audible—but he explained that she had been to the doctor, and it was “nothing serious” and “nothing that she need[ed] medication for.” Dr. J. Ross, an assistant medical examiner at the Harris County Institute of Forensic Sciences (HCIFS), testified that she reviewed S.M.’s medical records. Before the events, according to records from S.M.’s pediatrician, S.M. did not have any significant medical history or respiratory issues. Rather, she was a normal, healthy 8-month-old little girl. Records from Texas Children’s Hospital from the night S.M. died showed that EMS “[n]oted rigoring with contractures and gray color with cold body upon arrival to scene” at 12:38 a.m. S.M. arrived at the hospital at 1:06 a.m. and was pronounced dead at 1:16 a.m. At that time, her body temperature was 89.8 degrees. Emergency room physicians noted that they were unable to intubate S.M. because her jaw was 6 already “rigored shut.” And they observed: “Bruising over forehead. Left cheek appearance of handprint. On left cheek bruising.” Dr. Ross also observed a “pattern” on S.M.’s face that was “consistent with a slap mark, a handprint mark on the face.” And photos were admitted into evidence. Ross noted that S.M. had bruising and scratches over the majority of her forehead and left side of her head. And the autopsy revealed that S.M. had “bruising on the brain underneath.” Dr. Ross explained that the bruising was consistent with S.M.’s head having been struck with or against an object. S.M. also had abrasions below both eyes and petechial hemorrhaging on her upper and lower eyelids—which Ross explained was the “best indicator of asphyxiation.” And there were abrasions on her neck in “a linear pattern.” Ross opined that “[s]omething must have been around the neck region to create those.” S.M. also had “linear markings consistent with a ligature” around her ankles. And Ross opined that “something was wrapped around [S.M.’s] ankles”—“some sort of narrow cord or something or a shoestring.” Dr. Ross further testified that there were orange-red colored abrasions on the outside of S.M.’s lips and on the insides of her lips—like they had rubbed against her teeth and gums. And she explained that this was consistent with suffocation— putting something over the mouth, but with some movement. 7 S.M. also had “abundant hemorrhage” or “deep bruising” in the soft tissue of her external genitalia and buttocks. She had chafing and abrasions to the external genitalia, abrasions to her internal genitalia and around her vagina, “abrasion going towards the buttocks,” and tears to her anus. Dr. Ross noted a “large tear at the anus . . . extending towards the vagina.” She testified that these injuries were consistent with “forceful sex” and that “some sort of object” had penetrated S.M.’s sexual organ and anus. Dr. Ross opined that S.M. died from “multiple blunt force injuries with suffocation and sexual assault.” She opined that S.M.’s death was caused by someone blocking her nose and mouth with a hand or an unknown object; by someone applying pressure to her throat and neck with a hand or object, including a phone charging cable; or by someone striking her head with or against an object or with a hand. According to Dr. Ross, all of S.M.’s injuries occurred at or near the time of her death. And she opined that S.M. likely died after 1:00 p.m. but before 10:00 p.m. on Sunday, August 23. Lauren Bauer, a DNA analyst at HCIFS, analyzed a number of items that law enforcement found during a search of Luna’s sunroom. And she compared the DNA found on the items to the genetic profiles of known samples obtained from S.M., 8 Luna, Trevonte, Trevington, Matthews, Watson, and Jeng. Bauer also discovered a genetic profile on the items that did not match any of the known samples. Bauer testified that semen was confirmed on S.M.’s white infant blanket, white blanket with pink owls, and an article of her clothing—a pink “onesie.” And there was “very strong support” that the DNA profile found on the items originated from Luna. Semen was also detected and confirmed in the “inner seat area” of S.M.’s car seat. And there was “very strong support” that the DNA found originated from Luna (45 quadrillion times more likely) and from the unidentified individual (2 trillion times more likely). Blood was confirmed on a neck gaiter found in the sunroom. And there was “very strong support” that DNA on that item originated from S.M. S.M.’s DNA was also found on a phone charging cord found on the sunroom floor. Blood and semen were detected on several wipes found in a trash bag in Luna’s sunroom and one found on his floor. And there was “very strong support” that the DNA found on several of them originated from S.M., Luna, and the unknown individual. With respect to each of the items tested, Trevonte, Trevington, Matthews, Watson, and Jeng were excluded as contributors to the DNA found or the results were inconclusive. 9 Luna was charged with capital murder for causing the death of a person under 10 years of age or by causing a death in the course of committing aggravated sexual assault. The State alleged that Luna caused S.M.’s death by blocking her nose and mouth with his hand or an unknown object; by applying pressure to her throat and neck with his hand, phone-charging cable, neck gaiter, or unknown object; or by striking S.M. with his hand or an unknown object. And the trial court’s charge authorized the jury to convict Luna as a principal actor, a party, or a co-conspirator. The jury found Luna guilty of capital murder as charged in the indictment.3 Sufficiency of the Evidence In his first issue, Luna challenges the legal sufficiency of the evidence supporting his conviction. He argues that there is “no evidence from which a jury could rationally infer that [he] suffocated [S.M.] or was responsible for someone else” doing so. A. Standard of Review We review a challenge to the sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In assessing the legal sufficiency of the evidence under the Jackson standard, “we consider all the evidence in the light most favorable 3 See TEX. CODE CRIM. PROC. art. 37.07 § 1(a) (“The verdict in every criminal action must be general.”). 10 to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (internal quotations omitted) (citing Jackson, 443 U.S. at 318–19). In conducting our review, we defer to the responsibility of the factfinder to “fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. (quoting Jackson, 443 U.S. at 318– 19). We therefore “may not re-evaluate the weight and credibility” of the evidence or “substitute our judgment for that of the fact-finder.” Id. When the record supports conflicting reasonable inferences, “we presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution.” Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018). In a legal-sufficiency analysis, we treat direct and circumstantial evidence equally. Isassi, 330 S.W.3d at 638. “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hammack v. State, 622 S.W.3d 910, 914–15 (Tex. Crim. App. 2021). It is not necessary that the evidence directly prove the defendant’s guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). If the cumulative force of all the incriminating circumstances is sufficient to support the 11 conviction, each fact need not point directly and independently to guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “The key question is whether the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.” Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (internal quotations omitted). And our role on appeal is “restricted to guarding against the rare occurrence when a fact finder does not act rationally.” Id. (internal quotations omitted). B. Applicable Law A person commits murder if he “intentionally or knowingly causes the death of an individual.” See TEX. PENAL CODE § 19.02(b)(1). A person commits capital murder if he “commits murder as defined under section 19.02(b)(1)” and: “murders an individual under 10 years of age” or “intentionally commits the murder in the course of committing or attempting to commit . . . aggravated sexual assault.” Id. §§ 19.02(b)(1), 19.03(a)(2), (8). C. Analysis When a trial court’s charge authorizes a jury to convict on more than one theory—as it did in this case—a guilty verdict will be upheld if the evidence is sufficient to support any one of those theories. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Here, the evidence is sufficient to support that Luna, as a 12 principal actor, intentionally caused the death of an individual under 10 years of age. See TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a)(8).4 Luna concedes in his brief that “[t]he evidence shows that SM died of suffocation” and that the “injury on her mouth was consistent with someone putting something over her mouth.” He does not challenge the sufficiency of the evidence supporting his conviction generally or supporting that S.M. was under 10 years of age or that her death was intentionally or knowingly caused. See id. §§ 19.02(b)(1), 19.03(a)(8). He argues only that the evidence is insufficient to establish that he is the person who suffocated her. Accordingly, we limit our review to the essential element of identity. See TEX. R. APP. P. 47.1.5 4 We therefore do not reach whether the evidence is also sufficient to support that Luna committed murder in the course of committing or attempting to commit aggravated sexual assault. See TEX. PENAL CODE § 19.03(a)(2); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004); Casanova v. State, No. 01-24- 00308-CR, 2025 WL 1033765, at *4 n.4 (Tex. App.—Houston [1st Dist.] Apr. 8, 2025, pet. ref’d) (mem. op., not designated for publication) (jury must be unanimous that defendant committed offense but need not be unanimous as to theory of responsibility). Additionally, we do not reach whether the evidence is sufficient to support his conviction as a party or co-conspirator. See Guevara, 152 S.W.3d at 49; see also Leza v. State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011) (jury unanimity with respect to guilt as principal actor or party not required). 5 Because Luna challenges only the sufficiency of the evidence to support the identity element, we do not address the sufficiency of the evidence to support any other element of the offense. See Murray v. State, 457 S.W.3d 446, 448 n.1 (Tex. Crim. App. 2015) (“We solely address the sufficiency of the evidence as it pertains to the element of ‘operating’ in the DWI statute because Appellant challenged only that element of the statute.”); Wharton v. State, 711 S.W.3d 92, 101 (Tex. App.— Houston [1st Dist.] 2024, pet. ref’d); see also Ostrander v. State, No. 14-20-00286- CR, 2021 WL 2470390, at *7 (Tex. App.—Houston [14th Dist.] June 17, 2021, pet. 13 Identity may be proven by direct evidence, circumstantial evidence, or by reasonable inferences from the evidence. Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018); Greene v. State, 124 S.W.3d 789, 792 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (“[E]yewitness identification is not necessary.”). Injury-to-a-child cases particularly depend on circumstantial evidence because “there is rarely direct evidence of exactly how the child’s injuries occurred.” Bearnth v. State, 361 S.W.3d 135, 140 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (internal quotations omitted). “[W]hen a child is injured in the absence of any witnesses, the critical issue often comes down to timing and who had access to the child at the time of the injuries.” Contreras v. State, No. 08-23-00210-CR, 2025 WL 947999, at *16 (Tex. App.—El Paso Mar. 28, 2025, no pet.) (not designated for publication). Here, the jury could have reasonably inferred that Luna had sole access to S.M. at the time she sustained her fatal injuries. “Texas case law is replete with holdings that when an adult defendant has had sole access to a child at the time [her] injuries are sustained, the evidence is sufficient to support a conviction for injury to ref’d) (mem. op., not designated for publication) (“Because appellant has challenged the proof relating to just a single element of both offenses, we limit our review accordingly.”); see, e.g., Burks v. State, No. PD-0992-15, 2017 WL 3443982, at *1 (Tex. Crim. App. June 28, 2017) (not designated for publication) (reviewing court should not address unbriefed elements in legal sufficiency challenge). 14 a child, or murder if the child dies.” Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref’d).6 Testimony was presented by Luna’s roommates that S.M. appeared healthy and uninjured before the events. Dr. Ross testified that S.M.’s medical records reflect that she was a healthy child. And Luna stated on police video that S.M. was “good” at 7:00 p.m., when he and she went to sleep in the sunroom. All of Luna’s roommates testified that Luna and S.M. were alone together in the sunroom at the time she stopped breathing. The apartment was on the third floor and the only means of ingress and egress was through the sliding glass door into the living room. The roommates were asleep in the living room, and none of them saw anyone else go in or out. And when Luna came out of the sunroom with S.M. not breathing, nobody else was with him. Notably, Luna told Deputy Papa that he was the last person to see S.M. alive. See Matthews v. State, 513 S.W.3d 45, 54 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (considering that appellant was last person known to see victim alive). 6 See Bearnth v. State, 361 S.W.3d 135, 140 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (evidence that defendant was “the only adult present at the time of the injury” and “there [was] no evidence that anyone else was in the bathroom with [the child]” supported conviction); Elledge v. State, 890 S.W.2d 843, 846 (Tex. App.— Austin 1994, pet. ref’d) (evidence placing appellant alone with child when fatal injuries were sustained supported conviction). 15 Luna argues that any inference that he had “sole access” to S.M. is “purely speculative and unsupported” because he went to sleep at 7:00 p.m. the night of the murder and someone else could have had access to S.M. while he was asleep. But the State is not required to disprove all alternative hypotheses that are inconsistent with a defendant’s guilt. See Cantu v. State, 395 S.W.3d 202, 207 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). Rather, we consider only whether the inferences necessary to establish guilt are reasonable based on the cumulative force of all the evidence when considered in the light most favorable to the jury’s verdict. See Hooper, 214 S.W.3d at 16–17. Additionally, the jury could have reasonably inferred that Luna’s conduct after the murder demonstrated a consciousness of guilt. It is well-established that “conduct on the part of a person accused of a crime subsequent to its commission, which indicates a ‘consciousness of guilt,’ may be received as a circumstance tending to prove that he committed the act with which he is charged.” Mottin v. State, 634 S.W.3d 761, 770 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (internal quotations omitted).7 7 See Ex Parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014) (evidence of defendant’s conduct after victim’s death may reflect “consciousness of guilt”); see also King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (“consciousness of guilt” may be considered in determining guilt); Marquez v. State, 697 S.W.3d 485, 503 (Tex. App.—El Paso 2024, pet. ref’d) (“Consciousness of guilt may be one of the strongest indicators of guilt.”). 16 First, a delay in seeking medical care is probative of wrongful conduct and indicates a consciousness of guilt. See Washington v. State, 567 S.W.3d 430, 439 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (considering two-hour delay in calling 911, despite child’s obvious need for medical attention); Martin v. State, 246 S.W.3d 246, 262 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (delay in seeking medical care for injured child supported inference of guilt). Dr. Ross opined that all of S.M.’s injuries occurred at or near the time of her death and that she likely died after 1:00 p.m. but before 10:00 p.m. on Sunday, August 23. Dr. Ross explained that rigor mortis can begin in children one to two hours after death. And body temperature generally decreases at a rate of one to two degrees per hour after death. According to Luna, he and S.M. went to sleep at 7:00 p.m. Sunday in the sunroom. And, at 9:00 or 10:00 p.m., Luna woke up and found S.M. not breathing. But EMS was not dispatched to Luna’s apartment until 12:24 a.m. on Monday, August 24, 2020. And when paramedics arrived at 12:38 a.m., S.M. already had “[n]oted rigoring with contractures and gray color with [a] cold body.” Shivers testified that S.M.’s skin tone was poor and abnormally pale, and her core temperature was “already kind of low”—at 95.9 degrees. He opined that “there had been some sort of prolonged downtime before 911 was called.” And emergency room physicians noted that they were unable to intubate S.M. because her jaw was 17 already “rigored shut.” At 1:16 a.m., S.M.’s body temperature was down to 89.8 degrees. From the evidence, the jury could have reasonably inferred that Luna delayed in seeking medical care for S.M. and that his delay indicated a consciousness of his guilt. See Washington, 567 S.W.3d at 439; Martin, 246 S.W.3d at 262 (delay in seeking medical care supported consciousness of guilt). Additionally, consciousness of guilt may be shown by false statements and implausible explanations to law enforcement. See Guevara, 152 S.W.3d at 50; see also Ex Parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014) (implausible explanations to police are “strong evidence” of consciousness of guilt). The evidence shows that Luna told his roommates that he left S.M. in her car seat “accidentally with the straps too tight; and she basically choked.” And he told law enforcement—which was also captured on body camera video and played to the jury—that he simply woke up and found S.M. slouched down in her car seat, with the straps up near her neck, and not breathing. But evidence was also presented that S.M. suffered extensive injuries that went far beyond becoming entangled in a car seat. Dr. Ross opined, based on her detailed testimony discussed above, that S.M. died from “multiple blunt force injuries with suffocation and sexual assault.” And Luna concedes on appeal that 18 “[t]he evidence shows that SM died of suffocation” and the “injury on her mouth was consistent with someone putting something over her mouth.” Further, Bauer testified that semen was confirmed on the inner seat of S.M.’s car seat, on two of her blankets, and on her pink “onesie.” And there was “very strong support” that the DNA profile found originated from Luna. Also, blood and semen were found on diaper wipes in Luna’s sunroom. And there was “very strong support” that DNA found on some of the wipes was from S.M. and Luna.8 Based on all the evidence, the jury could have reasonably chosen to disbelieve Luna’s version of the events. See Isassi, 330 S.W.3d at 638. It could have reasonably inferred that Luna was the person who caused S.M.’s injuries and that his account was implausible—designed by him to conceal his conduct—and indicated a consciousness of guilt. See Guevara, 152 S.W.3d at 50 (implausible explanations are probative of wrongful conduct); Washington, 567 S.W.3d at 439 (defendant’s statement to medical personnel and police that child sustained injuries in fight with other children or fell down stairs was implausible, given extreme severity of child’s injuries, and supported capital murder conviction). 8 Luna correctly asserts that Bauer was unable to definitively state whether the DNA she found came from blood, semen, or skin. But the jury could have reasonably concluded that Luna was involved in the sexual assault and murder of S.M. based on blood and/or semen having been detected on numerous items on which S.M.’s and Luna’s DNA was found—including items on which the appearance of semen was strongly indicative of wrongdoing, such as the car seat, onesie, and blankets— especially when combined with the cumulative force of all the other evidence. 19 We defer to the responsibility of the jury “to weigh the evidence and draw reasonable inferences from basic facts to ultimate facts.” Isassi, 330 S.W.3d at 638. And a jury “may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when drawing inferences from the evidence.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). Based on the cumulative force of all the incriminating circumstances, viewed in the light most favorable to the verdict, we conclude that a rational juror could have found beyond a reasonable doubt that Luna is the person who caused S.M.’s death. See Jackson, 443 U.S. at 318–19; Ingerson, 559 S.W.3d at 509 (identity may be proven by circumstantial evidence or by reasonable inferences from the evidence); Isassi, 330 S.W.3d at 638; Hooper, 214 S.W.3d at 13. “This was not a determination so outrageous that no rational trier of fact could agree.” Merritt v. State, 368 S.W.3d 516, 527 (Tex. Crim. App. 2012) (internal quotations omitted); see Morgan, 501 S.W.3d at 89 (our role on appeal is “restricted to guarding against the rare occurrence when a fact finder does not act rationally”). Luna does not challenge the other elements of the offense. See TEX. PENAL CODE § 19.03(a)(8). We thus hold that the evidence is legally sufficient to support Luna’s conviction for the offense of capital murder. We overrule Luna’s first issue. 20 Charge Error In his second and third issues, Luna argues that the trial court reversibly erred in the jury charge at the guilt/innocence phase of trial. He contends that the fourth, fifth, and sixth application paragraphs omitted essential elements of the offense. And he argues that the trial court’s instruction on party liability is not supported by the evidence. A. Standard of Review In reviewing asserted jury-charge error, we first determine whether error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we determine whether sufficient harm resulted from the error to require reversal. Id. The harm necessary for reversal depends on whether the defendant objected to the error. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020). If the defendant objected to the error, we consider whether that error resulted in “some harm.” Alkayyali v. State, 713 S.W.3d 780, 789 (Tex. Crim. App. 2025). “Some harm requires reversal if the error is calculated to injure the rights of the defendant, meaning the error cannot be harmless.” Id. (internal quotations omitted). If the defendant did not object, we consider whether the error resulted in egregious harm. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). “Charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id. 21 “Egregious harm is a high and difficult standard to meet,” and it must be based on actual—not theoretical—harm. Id. B. Trial Court’s Jury Charge9 Here, the application paragraphs in the trial court’s charge read as follows: Now, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of August, 2020, in Harris County, Texas, (1) [Luna] intentionally or knowingly caused the death of S.M. by blocking S.M.’s nose and mouth with [his] hand [or other manner and means] and that S.M. was an individual under ten years of age; or (2) [Luna,] acting with intent to promote or assist the commission of the offense of capital murder, if any, solicited, encouraged, directed, aided, or attempted to aid an unknown male in intentionally or knowingly killing S.M.—an individual under ten years of age — if he did, by blocking S.M.’s note and mouth with said unknown male’s hand [or other manner and means], and that S.M. was an individual under ten years of age; or (3) [Luna] entered into an agreement with an unknown male to commit the felony offense of Aggravated Sexual Assault of S.M. and pursuant to that agreement they did carry out their conspiracy, and while in the course of committing said conspiracy, said unknown male intentionally caused the death of S.M.—an individual under ten years of age—by blocking S.M.’s nose and mouth with said unknown male’s hand [or other manner and means], and the murder of S.M. was committed in furtherance of said conspiracy and was an offense that should have been anticipated by [Luna] as a result of carrying out said conspiracy; or (4) [Luna] was in the course of committing or attempting to commit the felony offense of Aggravated Sexual Assault of S.M. and that [Luna] specifically intended to cause the death of S.M. by blocking 9 We “must examine the charge as a whole instead of [as] a series of isolated and unrelated statements.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (internal quotations omitted). 22 S.M.’s nose and mouth with [Luna’s] hand [or other manner and means]; or (5) [Luna,] acting with intent to promote or assist in the commission of the offense of capital murder, if any, solicited, encouraged, directed, aided, or attempted to aid an unknown male in his commission of capital murder, to wit: said unknown male, while in the course of committing or attempting to commit the felony offense of Aggravated Sexual Assault of S.M. specifically intended to cause the death of S.M., if he did, by blocking S.M.’s nose and mouth with the unknown male’s hand [or other manner and means]; or (6) [Luna] entered into an agreement with an unknown male to commit the felony offense of Aggravated Sexual Assault of S.M. and pursuant to that agreement they did carry out their conspiracy, and while in the course of committing said conspiracy, said unknown male intentionally caused the death of S.M. by blocking S.M.’s nose and mouth with said unknown male’s hand [or other manner and means], and the murder of S.M. was committed in furtherance of said conspiracy and was an offense that should have been anticipated by [Luna] as a result of carrying out said conspiracy; then you will find [Luna] guilty of capital murder as charged in the indictment. C. Application Paragraphs 1. Error Specifically, Luna complains that the fourth and fifth paragraphs of the charge “did not require the jury to find that S.M. died or that the alleged conduct caused her death.” The State argues that “[u]sing different tenses of ‘intentionally’ and ‘cause’ did not result in the failure to include a required element of capital murder.” The trial court must give the jury a written charge that sets forth the law applicable to the case. TEX. CODE CRIM. PROC. art. 36.14. The charge “must contain 23 an accurate statement of the law and must set out all the essential elements of the offense.” Alkayyali, 713 S.W.3d at 790. A person commits “murder” if he “intentionally or knowingly causes the death of an individual.” TEX. PENAL CODE § 19.02(b)(1) (emphasis added). A person commits capital murder if he “commits murder as defined under Section 19.02(b)(1)” and he: “murders an individual under 10 years of age” or if he “intentionally commits the murder in the course of committing or attempting to commit . . . aggravated sexual assault.” Id. §§ 19.02(b)(1), 19.03(a)(2), (8). Examining the fourth and fifth application paragraphs of the charge, we agree that they omit an essential element of the offense of capital murder: “causes the death of.” See id. § 19.02(b)(1). As written, these paragraphs authorized the jury to convict Luna if it found that he “specifically intended to cause the death of” S.M., without requiring a finding that he did cause her death. (Emphasis added.) Because these paragraphs do not properly instruct the jury on the law applicable to the case, there is error in the charge. See Ngo, 175 S.W.3d at 743. Luna further complains that there is error in the sixth application paragraph because it “did not require the jury to find the capital element that murder was committed ‘in the course of committing or attempting to commit’ aggravated sexual assault.” But the record does not support his complaint. 24 The sixth paragraph authorized the jury to convict Luna as a conspirator if it first found that he entered into an agreement with an unknown male to commit aggravated sexual assault. The jury then had to find that “they did carry out their conspiracy”—to commit aggravated sexual assault. And “while in the course of committing said conspiracy”—the aggravated sexual assault—the unknown male “intentionally caused the death of S.M.” (Emphasis added.) Because this paragraph required the jury to first find that murder was committed while in the course of committing aggravated sexual assault, in accordance with the statute, no error is shown. See TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a)(2). 2. Harm Having concluded that error exists in the charge with respect to the fourth and fifth paragraphs, we must determine whether sufficient harm resulted from the error to require reversal.10 Because Luna did not object to the charge, reversal is required only if it resulted in egregious harm. See Villarreal, 453 S.W.3d at 433. Luna argues that he was egregiously harmed because the instructions “omitted the gravamen of the offense and therefore denied [him] the right to a unanimous jury verdict.” Egregious harm is determined on a case-by-case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. Ap