Ashton Juwan Byron v. the State of Texas

Opinion issued February 19, 2026.

In the

Court of Appeals
for the

First District of Texas
————————————
NO. 01-24-00273-CR
———————————
ASHTON JUWAN BYRON, Appellant
v.
THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 23-CR-0557

MEMORANDUM OPINION

A jury found appellant guilty of the offense of burglary of a habitation with

the intent to commit the felony of aggravated assault. See TEX. PENAL CODE

§ 30.02(d). Appellant contends that the trial court erred by (1) instructing the jury

on party and coconspirator liability because the alleged primary actor was unarmed
and thus could not have committed the offense at issue; (2) failing to instruct the

jury that conviction under the coconspirator liability theory required proof that the

alleged primary party had the specific intent to commit aggravated assault; and

(3) instructing the jury on criminal conspiracy, an offense not alleged in the

indictment.

We overrule appellant’s points of error related to the party and coconspirator

liability instructions because the evidence is sufficient to support a guilty verdict

on the jury charge’s alternative theory that appellant committed the offense at issue

as the primary actor. We conclude further that the inclusion of an instruction on the

law of criminal conspiracy was not erroneous and constituted merely an alternative

law-of-parties charge as provided for in section 7.02(b) of the Texas Penal Code.

We affirm the trial court’s judgment.

Background

A. Events of February 1, 2023

Melanie Carter and Nicolas Richie testified that, on February 1, 2023, they

were running an errand in Texas City with two of their children and Richie’s

mother. While running the errand, Carter and Richie encountered appellant, whom

Carter had met previously at the home of a mutual acquaintance, Andrea Arispe.

Appellant was with a man Carter and Richie did not know. A confrontation

occurred between Richie and appellant. Richie claims that he and appellant “had

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some words,” that appellant brandished a set of brass knuckles, that Richie then

used his phone to take photographs of appellant and appellant’s vehicle, and that

Richie then returned to Richie’s vehicle, where his children were waiting.

Appellant later told an investigating officer that, after Richie and appellant

had a verbal confrontation, Richie wanted to fight, and that is why appellant

grabbed his brass knuckles. Appellant claimed that Richie then showed appellant

that Richie had a gun, after which Richie’s mother pushed Richie away from

appellant. Appellant said that Richie then took a photo of appellant and left.

After the confrontation, Carter and Richie returned to their apartment, which

was leased under Richie’s name.

According to Carter and Richie, at their apartment, Carter ignored multiple

phone calls and messages from Arispe before Carter and Richie’s mother or Carter

answered a call from Arispe. During that call, Arispe kicked open the door to

Carter and Richie’s apartment and entered accompanied by two men: Arispe’s

husband, Efren Gonzalez, and appellant.

According to Richie, all three entered the apartment. Carter saw Arispe enter

the apartment and saw Gonzalez “right next to” Arispe, though she had only a

partial view of Gonzalez. Carter testified that she also saw appellant inside the

apartment.

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Richie testified that he saw that appellant had a shotgun and, as Richie went

to pull his own weapon, Richie was shot in his hand and chest. Richie’s weapon

was a handgun. Carter testified that the shotgun was shot from outside the

apartment. Richie testified that he jumped to protect his two youngest children,

who were nearby, and in the process was shot by appellant a second time.

Appellant shot Richie’s mother in the face.

Police officers collected evidence of at least two shotgun shots having been

fired in or into the apartment.

Richie testified that he shot twice “out the door” in an attempt to scare

Arispe, Gonzalez, and appellant from the apartment. When the three “took off

running,” Richie chased them to where their vehicle was parked. As Arispe,

Gonzalez, and appellant were fleeing, appellant pointed the shotgun at Richie twice

more. Each time, Richie fired his own gun.

Appellant told an investigating officer that he, Arispe, Gonzalez, and a

fourth individual named “CJ” had gone to Carter and Richie’s apartment that day.

While he told the officer that all four went to the apartment door, only Arispe

entered the apartment. Richie’s neighbor testified that he was out walking his dog

and heard three shotgun shots, heard several pistol shots five to ten seconds later,

and then saw Richie chasing and shooting at four people.

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According to Richie, after Arispe, Gonzalez, and appellant had driven away,

Richie returned to the apartment. Carter and Richie’s two youngest children were

“covered in blood,” but neither had been shot. The blood belonged to Carter,

Richie, and Richie’s mother. They had all been shot as they had “kind of dog piled

on top” of the children to protect them.

Arispe was shot twice, once by Richie and once, in the back, by a shotgun.

Police found two shotgun shells outside the apartment.

B. Indictment

Appellant was indicted on a charge of burglary with the intent to commit a

felony. The indictment alleged that, on February 1, 2023, appellant, “with intent to

commit the felony offense of Aggravated Assault With Deadly Weapon, enter[ed]

a habitation, without the effective consent of [Richie], the owner thereof.” It

alleged further that “a deadly weapon, to-wit: a shotgun, was used or exhibited

during the commission of the aforesaid offense or during immediate flight

following [its] commission” and that appellant “used or exhibited said deadly

weapon or was a party to the aforesaid offense and knew that a deadly weapon

would be used or exhibited.” The indictment listed as an enhancement a prior

conviction for felony possession of a controlled substance.

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C. Trial

Appellant’s jury trial and sentencing occurred over three days in February

2024. The jury charge on guilt or innocence informed the jury that appellant was

accused of committing the offense of burglary of a habitation with the intent to

commit a felony. The jury charge noted that the State’s contention was that

appellant “committed the offense of Burglary of Habitation with Intent to Commit

Felony” under three alternative theories:

(1) appellant “committed Burglary of Habitation” by his own conduct as a
primary actor;

(2) Arispe “committed Burglary of Habitation” and appellant “is criminally
responsible for this offense as a party” because appellant “solicited,
encouraged, directed, aided, or attempted to aid” Arispe in committing it;
and

(3) Arispe “committed Burglary of Habitation” and appellant “is criminally
responsible for this offense as a coconspirator.”

As relevant here, the jury charge instructed the jury that:

Liability as Primary Actor

A person commits the offense of burglary of habitation if the
person without the effective consent of the owner, enters a habitation
with intent to commit a felony, theft, or an assault.

A person commits the offense of aggravated assault if the
person intentionally, knowingly, or recklessly causes bodily injury to
another and uses or exhibits a deadly weapon during the commission
of the assault.

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Responsibility for Conduct of Another as Party

A person who does not by his own conduct commit an offense
may nonetheless be criminally responsible for the conduct of another
person.

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.

A defendant acts with intent to promote or assist in the
commission of an offense when it is his conscious objective or desire
to promote or assist in the commission of the offense.

A defendant’s mere presence alone will not make him
responsible for an offense. A defendant’s mere knowledge of a crime
or failure to disclose a crime is not sufficient.

Responsibility for Felony Committed by Coconspirator

The defendant may be responsible for a burglary of habitation
committed by someone else, because the defendant joined an unlawful
conspiracy. At least one member of the unlawful conspiracy must
have intentionally entered a habitation without consent of the owner
before the defendant can be responsible for burglary of habitation.

A member of a conspiracy to commit one felony offense is
guilty of another felony offense committed by one of his
coconspirators when that other felony offense was committed in
furtherance of the original unlawful conspiracy and was one that
should have been anticipated as a result of the unlawful conspiracy.
Under those circumstances, all coconspirators are guilty of the felony
offense actually committed by one member of the conspiracy, though
the rest of them had no intent to commit it.

Burglary of habitation and aggravated assault are felony
offenses.

The jury charge further instructed the jury that:
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Application of Law to Facts

You must determine whether the state has proved, beyond a
reasonable doubt, that the defendant is guilty of Burglary of
Habitation with Intent to Commit a Felony, either as the primary
actor, as a party, or as a coconspirator.

Liability as Primary Actor

You must determine whether the state has proved the defendant
committed the crime by his own conduct. To prove this, the state must
prove, beyond a reasonable doubt, four elements. The elements are
that-
1. the defendant, in Galveston County, Texas, on or about the 1st
day of February, 2023, entered a habitation; and
2. the place entered was a habitation owned by Nicholas Richie;
and
3. Nicholas Richie, the owner of the habitation, did not effectively
consent to this entry; and
4. the defendant intended to commit aggravated assault.

If you all agree the state has proved, beyond a reasonable doubt,
each of the four elements listed above, you must find the defendant
“guilty.”

Liability as Party

If any of you fail to agree the state has proved, beyond a
reasonable doubt, any of the four elements listed above, you must next
decide whether the state has proved, beyond a reasonable doubt, that
the defendant is guilty because he is criminally responsible for the
commission of a crime committed by the conduct of another person.
This is the case if the state has proved, beyond a reasonable doubt,
five elements. The elements are that-

1. in Galveston County, Texas, on or about the 1st day of
February, 2023, Andrea Arispe intentionally or knowingly
entered a habitation; and
2. the place entered was a habitation owned by Nicholas Richie;
and
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3. Nicholas Richie, the owner of the habitation, did not effectively
consent to this entry; and
4. Andrea Arispe intended to commit aggravated assault; and
5. the defendant encouraged, aided, or attempted to aid Andrea
Arispe to commit burglary of habitation.

If all of you who did not find the defendant guilty as the
primary actor agree that the state has proved, beyond a reasonable
doubt, each of the five elements listed above, you must find the
defendant “guilty.”

Liability as Coconspirator

If any of you fail to agree the state has proved, beyond a
reasonable doubt, any of the four elements of primary liability or any
of the five elements of party liability listed above, you must next
decide whether the state has proved, beyond a reasonable doubt, that
the defendant is guilty because he is criminally responsible for the
conduct of a coconspirator. This is the case if the state has proved,
beyond a reasonable doubt, five elements. The elements are that-

1. in Galveston County, Texas, on or about the 1st day of
February, 2023, the defendant joined a conspiracy to commit
aggravated assault; and
2. in an attempt to carry out this conspiracy, Andrea Arispe
entered a habitation owned by Nicholas Richie; and
3. Nicholas Richie, the owner of the habitation, did not effectively
consent to this entry; and
4. the burglary of habitation was committed in furtherance of the
unlawful conspiracy; and
5. the burglary of habitation should have been anticipated as a
result of this conspiracy.

If all of you who did not find the defendant guilty as the
primary actor or as a party agree that the state has proved, beyond a
reasonable doubt, each of the five elements of coconspiracy liability
listed above, you must find the defendant “guilty.”

....

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You need not be unanimous about the theory underlying either
your “guilty” or “not guilty” verdict. If you all agree the defendant is
guilty either as the primary actor, or as a party, or as a coconspirator,
then you must find the defendant “guilty.” If you all agree the state
has failed to prove, beyond a reasonable doubt, the elements of
primary actor liability[;] has failed to prove, beyond a reasonable
doubt, the elements of party liability; and has failed to prove, beyond
a reasonable doubt, the elements of coconspirator liability, you must
find the defendant “not guilty.”

The jury found appellant guilty of burglary of a habitation with the intent to

commit a felony. The jury sentenced appellant to 25 years’ imprisonment. This

appeal followed.

Jury Charge

In his first and second points of error on appeal, appellant argues that the

trial court erred in instructing the jury on party and coconspirator liability because

the alleged primary actor, Arispe, was unarmed and thus could not have committed

the offense of burglary of a habitation with the intent to commit the felony of

aggravated assault. Appellant’s third point of error is his claim that the trial court

erred in instructing the jury on criminal conspiracy, an offense not alleged in the

indictment. His fourth point of error is his claim that the trial court “erred in failing

to instruct the jury that conviction under the coconspirator liability theory required

proof that . . . Arispe had the specific intent to commit aggravated assault.”

Appellant argues that the trial court’s errors, to which he did not object at

trial, caused him egregious harm. The State disputes each of appellant’s points of

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error and argues that, even if there was error in the trial court’s jury charge,

appellant has not shown that he suffered egregious harm from such error.

A. Standard of Review

The purpose of the trial court’s jury charge is to inform jurors of the law

applicable to the case and guide them in its application. TEX. CODE CRIM. PROC.

art. 36.14; Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App.

2019). Abstract paragraphs serve as a glossary to help the jury understand the

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

application paragraphs apply the pertinent law, definitions, and legal principles to

the particular facts and indictment allegations at issue. Alcoser v. State, 663

S.W.3d 160, 165 (Tex. Crim. App. 2022). Reversible error in the giving of an

abstract instruction generally occurs only when the instruction is an incorrect or

misleading statement of law that the jury must understand in order to implement

the commands of the application paragraph. Id. The failure to give an abstract

instruction is reversible only when it is necessary to a correct or complete

understanding of concepts or terms in the application part of the charge. Id.

Where, as here, there was not a timely objection to an alleged jury-charge

error, the appellant can obtain relief only if the record shows “egregious harm.” Id.

Harm is assessed in light of the entire jury charge, the state of the evidence, the

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

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the trial as a whole. Id. Egregious harm must be based on actual rather than

theoretical harm, and is a difficult standard to meet. Id. An erroneous jury charge is

egregiously harmful if it affects the very basis of the case, deprives the accused of

a valuable right, or vitally affects a defensive theory. Id.

B. Applicable Law

“[L]iability as a party is an available legal theory if it is supported by the

evidence.” In re State ex rel. Weeks, 391 S.W.3d 117, 124 (Tex. Crim. App. 2013).

Under the law of parties, “[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 he is criminally responsible, or by both.” TEX. PENAL CODE § 7.01(a). 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.” Id. § 7.02(a)(2). “In general, an instruction on the law of

parties may be given to the jury whenever there is sufficient evidence to support a

jury verdict that the defendant is criminally responsible under the law of parties.”

Malbrough v. State, 612 S.W.3d 537, 562 (Tex. App.—Houston [1st Dist.] 2020,

pet. ref’d) (quoting Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999)).

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C. Instructions Premised on Arispe as Primary Actor

Neither party has cited a case involving an alleged primary actor charged

with the offense at issue—burglary of a habitation with the intent to commit the

felony of aggravated assault—who was unarmed, much less one in which the

alleged primary actor was not alleged to have personally physically injured anyone

throughout the burglary. Nor have we found such a case.

The State argues that the evidence supported the submission of the

party-liability instructions because the jury heard evidence that Arispe was “amped

up” and wanted to fight, that Arispe had repeatedly attempted to contact Carter and

Richie’s family just before entering Carter and Richie’s apartment, that she

threatened to harm Carter and Richie, and that she followed through with her

threats by arriving at Carter and Richie’s apartment with backup including

someone armed with a shotgun. The jury also heard evidence that Arispe “kick[ed]

down” the door to Carter and Richie’s apartment and, specifically, “used all her

force on the door and . . . used her foot on the door to kick it wide open.” In

addition, the jury heard evidence that appellant used the shotgun in his possession

to shoot both Richie and his mother.

Even assuming such evidence does not support the submission of the

party-liability instruction at issue, appellant cannot show that he was harmed by the

erroneous submissions because the evidence is sufficient to support a finding that

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appellant committed the offense at issue as the primary actor. See Sanchez v. State,

376 S.W.3d 767, 775 (Tex. Crim. App. 2012) (“In a jury charge alleging

alternative theories, harm must be measured ‘at least in part, against the likelihood

that the jury’s verdict was actually based upon an alternative available theory of

culpability not affected by erroneous portions of the charge.’” (quoting Atkinson v.

State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996), abrogated on other grounds by

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002))); Brown v. State, 580

S.W.3d 755, 763 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d) (same).

“When a jury returns a general guilty verdict on an indictment charging alternate

methods of committing the same offense, the verdict stands ‘if the evidence is

sufficient to support a finding under any of the theories submitted.’” Sanchez, 376

S.W.3d at 775 (quoting Kitchens v. State, 823 S.W.2d 256, 258-59 (Tex. Crim.

App. 1991)); see also Calvert v. State, No. AP-77,063, 2019 WL 5057268, at *56

(Tex. Crim. App. Oct. 9, 2019) (mem. op., not designated for publication) (same);

Harris v. State, No. 01-23-00549-CR, 2025 WL 994036, at *7 (Tex. App.—

Houston [1st Dist.] Apr. 3, 2025, pet. ref’d) (mem. op., not designated for

publication) (same); Canfield v. State, 429 S.W.3d 54, 70 (Tex. App.—Houston

[1st Dist.] 2014, pet. ref’d) (same); Brown, 580 S.W.3d at 763 (same).

Here, the evidence is sufficient to support a finding that appellant committed

the offense at issue as the primary actor because a reasonable jury could have

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found based on the evidence presented at trial that appellant, without the effective

consent of Richie, entered Richie’s apartment with the intent to cause bodily injury

to another and use or exhibit a deadly weapon during the commission of the

assault. Appellant argues that the evidence does not “clearly establish” that he fired

his shotgun inside the apartment. But under the cited authorities, we consider only

whether the evidence at trial was sufficient to support a conviction of appellant as

principal. See Sanchez, 376 S.W.3d at 775; Calvert, 2019 WL 5057268, at *56;

Harris, 2025 WL 994036, at *7; Canfield, 429 S.W.3d at 70; Brown, 580 S.W.3d

at 763. The State was not required to show that appellant committed an aggravated

assault while inside the apartment but instead that appellant unlawfully entered the

apartment with the intent to commit an aggravated assault. See Jacob v. State, 892

S.W.2d 905, 909 (Tex. Crim. App. 1995). Both Carter and Richie gave testimony

that a reasonable jury could have interpreted as evidence that appellant entered the

apartment.1 That evidence, combined with the evidence that appellant shot Richie

and his mother very close in time to his entry into and exit from the apartment, is

1
When asked when she saw the shotgun, Carter testified that: “I saw it after
[Arispe] made a comment and then [appellant] stepped inside my house.” Richie
testified that he saw “[t]hree people” come “through the door,” and a “shotgun
come through.” Richie’s list of people who were inside the house at the time he
and his mother were shot included “[appellant] with a gun, [Arispe] right in front
of [appellant], and then [Gonzalez] behind him.” Richie agreed that he saw Arispe
“walk in first,” “then right behind is [appellant],” and “right behind is
[Gonzalez].” Richie also agreed that Arispe “physically enter[ed] the apartment”
and that appellant was “on her right,” and stated that Gonzales was “right behind
[appellant] at the front of the door.”

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sufficient evidence to support a conviction of appellant as principal. See Guevara

v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Intent may . . . be inferred

from circumstantial evidence such as acts, words, and the conduct of the

appellant.”). We thus overrule appellant’s first and second issues on appeal.

D. Omitted Instruction

In his fourth point of error, appellant argues that the trial court “erred in

failing to instruct the jury that conviction under the coconspirator liability theory

required proof that . . . Arispe had the specific intent to commit aggravated

assault.” Appellant notes that, in its application paragraph for party liability, i.e.,

liability under section 7.02(a) of the Texas Penal Code, the trial court required the

jury to find that Arispe “intended to commit aggravated assault.” He argues that

the trial court erred in not including similar language in the charge’s abstract and

application sections relating to coconspirator liability, i.e., liability under section

7.02(b) of the Texas Penal Code.

As above, even assuming the trial court’s coconspirator liability instructions

were erroneous in this respect, appellant cannot show that he was harmed by that

error because the evidence is sufficient to support a finding that appellant

committed the offense at issue as the primary actor. See Sanchez, 376 S.W.3d at

775; Brown, 580 S.W.3d at 763. The jury having returned a general guilty verdict

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

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verdict stands because the evidence is sufficient to support a finding under one of

the theories submitted. See Sanchez, 376 S.W.3d at 775; Calvert, 2019 WL

5057268, at *56; Harris, 2025 WL 994036, at *7; Canfield, 429 S.W.3d at 70;

Brown, 580 S.W.3d at 763.

E. Criminal Conspiracy Instruction

In his third issue, appellant argues that the trial court erred in submitting an

abstract instruction on the law of criminal conspiracy because it was not alleged in

the indictment. The specific language he challenges is an instruction reciting the

elements of a criminal conspiracy as set forth in section 15.02(a) of the Texas

Penal Code.2 The State argues that the instruction was not erroneous given the jury

was properly instructed to consider alternate party-liability theories under section

7.02 of the Texas Penal Code, which encompasses coconspirator liability. See, e.g.,

TEX. PENAL CODE § 7.02(b) (stating in part that, “[i]f, in the attempt to carry out a

conspiracy to commit one felony, another felony is committed by one of the

conspirators, all conspirators are guilty of the felony actually committed, though

having no intent to commit it, if the offense was committed in furtherance of the

2
See TEX. PENAL CODE § 15.02(a) (“A person commits criminal conspiracy if, with
intent that a felony be committed: (1) he agrees with one or more persons that they
or one or more of them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the
agreement.”).

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unlawful purpose and was one that should have been anticipated as a result of the

carrying out of the conspiracy”).

Addressing similar claims of charge error in cases in which the indictment

did not include an allegation of criminal conspiracy, the Texas Court of Criminal

Appeals and other Texas courts have held that the inclusion of an instruction on the

law of criminal conspiracy was not erroneous because it constituted merely an

alternative law-of-parties charge as provided for in section 7.02(b) of the Texas

Penal Code. See Montoya v. State, 810 S.W.2d 160, 164-65 (Tex. Crim. App.

1989) (involving instruction stating in part that, “[b]y the term ‘conspiracy’ as used

in these instructions[] is meant an agreement between two or more persons, with

intent that a felony be committed, that they, or one or more of them, engage in

conduct that would constitute the offense”); Romero-Perez v. State, No. 03-22-

00494-CR, 2023 WL 5109606, at *2-4 (Tex. App.—Austin Aug. 10, 2023, no pet.)

(mem. op., not designated for publication) (involving instruction tracking language

of subsections 15.02(a)-(c) of Texas Penal Code); Gray v. State, No. 05-21-00946-

CR, 2023 WL 415941, at *4-5 (Tex. App.—Dallas Jan. 26, 2023, no pet.) (mem.

op., not designated for publication) (involving instruction tracking language of

subsections 15.02(a)-(b) of Texas Penal Code); Hatch v. State, No. 05-13-01710-

CR, 2015 WL 4723620, at *4 (Tex. App.—Dallas Aug. 10, 2015, pet. ref’d) (mem.

op., not designated for publication) (same).

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Based on that precedent, we overrule appellant’s third issue on appeal.

Conclusion

Having overruled each of appellant’s points of error, we affirm the trial

court’s judgment.

Amparo “Amy” Guerra
Justice

Panel consists of Justices Guerra, Caughey, and Dokupil.

Do not publish. TEX. R. APP. P. 47.2(b).

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