HARRIS v. STATE (2022)

OPINION ON EN BANC RECONSIDERATION

The State of Texas has filed a motion for en banc reconsideration of our May 26, 2022 opinion and judgment. See Tex. R. App. P. 49.7. A majority of the Court has voted to grant en banc reconsideration. We withdraw our opinion of May 26, 2022, vacate our judgment of the same date, and issue this en banc opinion and judgment in their stead.

A jury convicted appellant, Damian Harris, of murder

and assessed his punishment at 20 years’ confinement. In three issues, appellant argues that (1) the evidence is legally insufficient to support his murder conviction because the State failed to prove beyond a reasonable doubt that he did not act in self-defense, (2) the trial court abused its discretion in denying his motion for new trial, and (3) the trial court erred in failing to provide an adequate response to a jury note asking whether the admitted commission of a crime negates the basis for a self-defense claim and instead referring the jury to the courts charge. We affirm.

Background

This is a murder case arising from a drug-related shooting. One evening in February 2017, officers received a dispatch for shots fired at an apartment complex in San Marcos, Texas. When they arrived, they found a deceased male, later identified as Terrance Valentine, inside one of the apartments, dead from a single gunshot wound to the back of the head. Witnesses told the officers that Valentine and another male, later identified as appellant, had gotten into an argument during a drug deal, which escalated and ultimately ended with appellant pulling a handgun and shooting Valentine in the head.

Appellant was indicted for murder. The indictment alleged that appellant caused Valentines death by shooting him with a firearm. Appellant entered a plea of not guilty, claiming that he had acted in self-defense. At trial, the State presented numerous witnesses and exhibits. Viewed in the light most favorable to the jurys verdict, the evidence established the following:

In January 2017, Valentine arranged a drug deal with Devin Bethea through an intermediary, Ty-Zay Wilson. Wilson knew both Bethea and Valentine and put them in contact with one another after Bethea informed Wilson that he wanted to sell prescription-grade cough syrup.

Through text messaging, Bethea and Valentine negotiated the price, amount, and location, agreeing to meet at Wilsons apartment in San Marcos.

On the night of the scheduled drug deal, Valentine drove to the apartment with his friend, Joseph Massey, while Bethea drove to the apartment with appellant.

Valentine and Massey arrived first and went upstairs to Wilsons bedroom to play videogames while they waited for Bethea and appellant. While waiting upstairs, Valentine told Wilson that he was armed with a handgun, that he intended to pay for the drugs with counterfeit bills, and that if Bethea and appellant tried to “rob” him, he would just “take” the drugs from them. Wilson never warned Bethea or appellant about what Valentine had told him while waiting upstairs, and there is no evidence either of them knew that Valentine was armed and prepared to “take” the drugs from them.

When Bethea and appellant arrived, they entered the apartment with appellant carrying a box purportedly containing the drugs. Massey and Valentine came downstairs, and Valentine gave Bethea and appellant the counterfeit bills. Bethea and appellant counted it at the kitchen island while Valentine moved around to the back of a couch near the front door; Massey and Wilson stayed in the kitchen.

When Bethea and appellant finished counting the money, appellant, perhaps realizing that the money was fake, said Valentine was short, packed up the drugs, and started to leave. But, before appellant could reach the front door, Valentine intercepted him, grabbed the front of his shirt, and pushed him against the wall. Appellant then drew a gun from his waistband, and, as Valentine turned, possibly reaching for his own gun, appellant shot him in the back of the head, immediately killing him. Valentines gun discharged a round into the floor that ricocheted into the couch leg.

Massey ran upstairs into Wilsons bedroom, and Wilson fled out the back door. Appellant and Bethea fled the scene as well.

Wilson never returned that night, but Massey eventually came back downstairs and found Valentine facedown near the door with a pool of blood around his head. Massey found Valentines gun near his body, picked it up, and hid it behind the apartments HVAC unit. He then hid the counterfeit bills under Wilsons mattress and called 911.

At the close of evidence, the trial court submitted a charge containing standard statutory instructions on appellants claim of self-defense. The jury rejected appellants self-defense claim, found him guilty of murder, and assessed punishment at 20 years’ confinement. The trial court entered a judgment of conviction in accordance with the jurys verdict.

This appeal followed.

Legal Sufficiency

In his first issue, appellant argues that the evidence is legally insufficient to support his conviction for murder because the State failed to prove beyond a reasonable doubt that appellant did not act in self-defense. The State responds that appellants argument applies an erroneous standard of review that views the evidence in the light most favorable to his claim of self-defense and that, properly viewed in the light most favorable of the verdict, the evidence proves beyond a reasonable doubt that appellant did not act in self-defense.

A. Applicable law and standard of review

Under the Penal Code, as relevant here, a person commits the offense of murder if he (1) intentionally or knowingly causes the death of an individual or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code § 19.02(b)(1), (2). It is a defense to prosecution for murder that the persons use of deadly force was “justified.” Id. §§ 9.02; 9.31–9.32; see Braughton v. State, 522 S.W.3d 714, 730 (Tex. App.—Houston [1st Dist.] 2017) (providing that deadly force used in self-defense may be raised as justification for defendants actions and in support of acquittal against murder charge), affd, 569 S.W.3d 592 (Tex. Crim. App. 2018). A persons use of deadly force is justified if, among other things, the person “reasonably believes the deadly force is immediately necessary” to protect himself “against the others use or attempted use of unlawful deadly force.” Penal § 9.32(a)(2)(A).

In a claim of self-defense justifying a defendants use of deadly force against another, the defendant bears the burden to produce evidence supporting the defense, while the State bears the burden of persuasion to disprove the raised issues. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). The defendants burden of production requires him to adduce some evidence that would support a rational finding in his favor on the defensive issue. Id. In contrast, the States burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Id. Thus, in reviewing the sufficiency of the evidence to support a conviction for murder when the jury has rejected a defendants claim of self-defense, we determine whether, after viewing all of the evidence in the light most favorable to the verdict, any rational jury would have found the essential elements of murder beyond a reasonable doubt and also would have found against the defendant on the self-defense issue beyond a reasonable doubt. Id. at 609.

B. Analysis

It is undisputed that the evidence presented at trial established the following facts: On the night of the shooting, both appellant and Valentine arrived at Wilsons apartment armed with handguns for a drug deal in which appellant was going to sell Valentine prescription-grade cough syrup at an agreed amount and price. Valentine attempted to purchase the drugs with counterfeit money. Appellant counted the money, said it was short, packed up the drugs, and began leaving the apartment. But, before appellant could reach the apartments front door, Valentine intercepted him, grabbed the front of his shirt, and pushed him against the wall, thereby preventing appellant from leaving. Appellant then drew his gun from his waistband, and, as Valentine turned, possibly reaching for his own gun, appellant shot him in the back of the head, immediately incapacitating him. At some point, Valentines firearm discharged as well (though exactly when and how are in dispute), with the round ricocheting off the ground into one of the legs of the couch.

Despite these undisputed facts, appellant, relying on four pieces of evidence, argues that the evidence is legally insufficient to support the jurys rejection of his self-defense claim. We consider the evidence appellant claims proves self-defense.

1. Evidence that Valentine was armed and prepared to use force

First, appellant contends that the evidence shows that Valentine was armed with a handgun and prepared to take the drugs by force, which, in turn, shows that appellant reasonably believed that Valentine might use or attempt to use unlawful deadly force against him. In support of his contention, appellant cites to Wilsons testimony recounting what Valentine told him before Bethea and appellant arrived at the apartment, specifically, that he was armed, intended on buying the drugs with counterfeit money, and was prepared to “just take” the drugs if appellant and Bethea tried to “rob” him.

But, appellant does not cite to any testimony or other evidence showing that appellant knew what Valentine told Wilson before he and Bethea arrived. Wilson testified that he told neither Bethea nor appellant that Valentine was armed and prepared to take the drugs by force. And, nothing in the record indicates that appellant was otherwise aware or suspected that Valentine might use deadly force during the drug deal.

A rational jury could have found that, when appellant drew and fired his gun, he did not reasonably believe that the use of deadly force was immediately necessary to protect himself against Valentines use or attempted use of his firearm or other deadly force. Assuming that appellant was aware that Valentine was armed and prepared to take the drugs by force, a rational jury could have found that appellants knowledge of these facts did not support a reasonable belief that deadly force was immediately necessary at the time of the shooting, as Valentine had not yet drawn his gun or otherwise threatened to use it at that time.

2. Evidence that Valentine was large

Second, appellant contends that the evidence shows that Valentine was a large, imposing individual,

which, in turn, supports a finding that appellant reasonably believed that deadly force was immediately necessary when Valentine pushed appellant against the wall. Valentines large physical stature does not compel—and does not even necessarily support—a finding that appellant reasonably believed deadly force was immediately necessary to protect himself from Valentine, especially considering that appellant was armed. Whether Valentines size justified a reasonable belief that deadly force was immediately necessary was a question for the jury—a question the jury resolved in favor of the State, not appellant.

3. Evidence that Valentine shot first

Third, appellant contends that the evidence conclusively proves that Valentine shot first, which, in turn, supports a finding that appellant fired his handgun (i.e., used deadly force) in justified self-defense. Appellant argues that the evidence conclusively proves that Valentine shot first because the evidence also conclusively proves two additional facts: (1) Valentines gun could not have discharged without Valentine consciously pulling the trigger; and (2) Valentine was immediately incapacitated when shot in the head.

Appellant contends that the first fact is conclusively proved by the testimony of a tool-mark analyst, who testified that he tested Valentines guns trigger mechanism and concluded that it would not have discharged without five pounds of force being applied to the trigger. Appellant contends that the second fact is conclusively proved by the testimony of the medical examiner, who testified that Valentines head wound would have immediately incapacitated him and thereby prevented him from deliberately discharging his firearm.

However, appellants contention ignores additional testimony from the analyst and examiner, as well as testimony from Wilson and Massey, which supports the opposite conclusion: that Valentines trigger pull was an involuntary jerking produced by his being shot in the head as he was attempting to draw his own gun after seeing appellant reach for his.

The medical examiner testified that Valentines incapacitating injury made voluntary movement “unlikely.” But, she explained that an incapacitating head injury can cause involuntary movement, such as the clinching of a fist. While she could not say for sure what happened in appellants case, her testimony, viewed in the light most favorable to the verdict, supports a finding that Valentine involuntarily discharged his firearm after being shot in the head by appellant.

A finding that Valentine involuntarily discharged his firearm after being shot is supported by three additional pieces of evidence:

• the testimony of Massey, who testified that he saw appellant draw his firearm first;

• the autopsy, which showed that Valentine was shot in the back-left side of his head; and

• the ballistics examination, which showed that when Valentines firearm was discharged, it was aimed down and away from appellant.

This evidence supports a finding that Valentine, in response to seeing appellant draw his gun, turned and attempted to pull his own gun out of his waistband and then involuntarily discharged it when appellant shot him in the back of the head.

Appellant contends that Wilsons testimony supports a finding that Valentine drew and fired his gun first. To the extent Wilsons testimony may be characterized as supporting such a finding—at times Wilson equivocated, describing appellant and Valentine as drawing their guns simultaneously—we assume that the jury disregarded the testimony and credited instead the evidence supporting a finding that appellant drew and fired his gun first.

4. Evidence that the jury accepted appellants self-defense claim

Fourth, appellant contends that a note submitted by the jury during deliberations and post-trial affidavits filed by his attorneys show that the jury considered his self-defense claim to be valid. We disagree for two reasons.

First, neither the jurys note nor the post-trial affidavits are relevant to our sufficiency review. In reviewing the sufficiency of the evidence, an appellate court considers only the evidence put before the jury and cannot consider any evidence presented after the verdict. See Marines v. State, 292 S.W.3d 103, 106 n.1 (Tex. App.—Houston [14th Dist.] 2008, pet. refd) (“The scope of a legal sufficiency review is also limited to only that evidence before the jury.”). Thus, in reviewing the sufficiency of the evidence here, we cannot consider the jurys note or the post-trial affidavits, as neither piece of evidence was presented to the jury.

Second, the affidavits filed by appellants lawyers are inadmissible. The affidavits are hearsay, as they recount what certain jurors allegedly told appellants lawyers about their deliberations. See Tex. R. Evid. 802. And, the affidavits are incompetent because jurors are prohibited from testifying about their deliberations. Tex. R. Evid. 606(b)(1).

Viewing the evidence in the light most favorable to the verdict, any rational jury could have reasonably found that Appellant—engaged in a drug deal and confronted with non-deadly force—drew his gun and fired without justification, shooting Valentine in the back of the head and thereby causing his death. Accordingly, we overrule appellants first issue.

Motion for New Trial

In his second issue, appellant contends that the trial court abused its discretion in denying his motion for new trial by operation of law. See Tex. R. App. P. 21.8(a). The State responds that appellant failed to preserve the issue for our review because he never presented the motion to the trial court. We agree.

Under the Rules of Appellate Procedure, a criminal defendant must timely “present” a motion for new trial to the trial court. Tex. R. App. P. 21.6. If the defendant fails to timely present the motion, the issues raised in the motion are not preserved for appellate review. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). To prove presentment, the record must show that the trial court had actual notice of the defendants “desire for a ruling or a hearing on the motion.” Arrellano v. State, 555 S.W.3d 647, 655 (Tex. App.—Houston [1st Dist.] 2018, pet. refd).

But here, the record contains no notice of hearing, docket sheet entry setting a hearing date, order resetting or denying the motion, “or other proof that the trial court was actually aware of [appellant]’s request for a ruling or hearing on the motion.” Id. Instead, the record only contains a file-stamped copy of appellants motion and an email notifying the State that the motion had been filed. In other words, the record merely shows that appellants motion was timely filed, which is insufficient to show that the motion was timely presented. See Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009) (“Merely filing the motion is not sufficient alone to show presentment.”); Arrellano, 555 S.W.3d at 655 (“Presentment requires the defendant to go beyond simply filing the motion for new trial with the trial court clerk.”); Longoria v. State, 154 S.W.3d 747, 762 (Tex. App.—Houston [14th Dist.] 2004, pet. refd) (“To prove presentment, the record must contain more than just proof that the motion was timely filed[.]”).

We hold that the record fails to show that appellant timely presented his motion for new trial to the trial court, and that, as a result, appellant has failed to preserve for appellate review the denial of his motion by operation of law. Accordingly, we overrule appellants second issue.

Jury Question

In issue four, appellant contends that “[t]he trial court erred by failing to provide an adequate response To The Question Presented By The Jury During Guilt/Innocence Deliberations.”

A. Background

At trial, appellant claimed that he acted in self-defense, which permits a persons use of deadly force if the actor reasonably believes the force used was immediately necessary to protect the person against the others use or attempted use of unlawful deadly force. See Tex. Penal Code §§ 9.31–.32. The defense provides that, under certain circumstances, the defendant is entitled to a presumption that deadly force was immediately necessary. See id. § 9.32(b). That presumption is not available to a defendant “engaged in criminal activity,” other than certain misdemeanor traffic offenses, at the time the deadly force is used. Id. at § 9.32(b)(3).

Because appellant produced some evidence in support his use of deadly force in self-defense, the trial court submitted a self-defense charge to the jury, which included (1) definitions of the relevant statutes, (2) the burden of proof for self-defense, (3) relevant statutory definitions, (4) law of the issue of retreat, and (5) the presumption that deadly force is necessary under certain circumstances. In (5) particular, the presumption-of-reasonableness instruction,

which tracked text the language of Penal Code section 9.32(b) of the Texas Penal Code, stated:

An actors belief that deadly force was immediately necessary is presumed to be reasonable if:

1. the actor knew or had reason to believe that the person against whom the deadly force was used:

a. unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actors occupied habitation, vehicle, or place of business or employment;

b. unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actors habitation, vehicle, or place of business or employment; or

c. was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery; and

2. the actor did not provoke the person against whom the force was used; and

3. the actor was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

If you find the State has disproved one or more of elements 1, 2, or 3 listed above, the presumption does not apply and you are not required to find that the actors belief was reasonable.

See id. § 9.32(b) (establishing presumption of reasonableness).

During deliberations, the jury submitted a written question to the trial court, which asked:

In reference to Section 3, Page 14, does the admitted commission of a crime, sale of a controlled substance, negate the basis of a claim of self-defense?

Appellant urged the trial court to respond to the question with “a simple ‘no,’ ” arguing that the question showed that the presumption-of-reasonableness instruction, included in the abstract portion of the charge without objection, had confused the jury. Appellant argued that a simple one-word response of “no” would provide additional guidance on the applicable law and clarify the jurys confusion caused by the alleged confusing instruction. The State, in contrast, urged the trial court to simply refer the jury to the charge, arguing that the charge accurately set forth the applicable law and that a substantive response, however short, would constitute an improper comment on the evidence. The trial court agreed with the State.

In response to the jurys question, the trial court wrote on the form document, “You have been given the law.” The trial court also checked a box on the form stating, “The court under the law is not permitted to answer the question that you have presented. Please refer to and follow the instructions already given you. And continue your deliberations.”

B. Applicable law and standard of review

“Although the trial court ordinarily provides instructions to the jury in their entirety before the jury retires to deliberate, the court may give further written instructions upon the jurys written request for additional guidance regarding applicable law.” Lucio v. State, 353 S.W.3d 873, 875 (Tex. Crim. App. 2011); see Tex. Code Crim. Proc. art. 36.16 (providing that court may give “further charge” to jury upon jurys request after parties complete closing arguments), id. art. 36.27 (providing that court “shall answer any [jury] communication in writing”). A trial courts substantive response to a jury question “essentially amounts to a supplemental jury instruction” and is therefore governed by the “same rules” that “generally govern jury instructions.” Lucio, 353 S.W.3d at 875.

“Because a trial courts answer to a jurys question must comply with the same rules that govern charges, the trial court, as a general rule, must limit its answer to setting forth the law applicable to the case; it must not express any opinion as to the weight of the evidence, sum up the testimony, discuss the facts, or use any response calculated to arouse the sympathy or excite the passions of the jury.” Id.; see Tex. Code Crim. Proc. art. 36.14. “If the request from a jury for additional instructions is not proper, the court should refer the jury to the courts charge.” Ash v. State, 930 S.W.2d 192, 196 (Tex. App.—Dallas 1996, no pet.) (citing Gamblin v. State, 476 S.W.2d 18, 20 (Tex. Crim. App. 1972)).

C. Analysis

The jurys question asked, “In reference to [the presumption of reasonableness instruction], does the admitted commission of a crime, sale of a controlled substance, negate the basis of a claim of self-defense?” No provision of the Penal Code specifically answers this question although the answer can be easily derived from the codes more general provisions as well as caselaw construing same. See, e.g., Barrios v. State, 389 S.W.3d 382, 393 (Tex. App.—Texarkana 2012, pet. refd) (“When the accused is engaged in other criminal activity, the statute does not disqualify the accused from defending his or her use of force, it simply removes the presumption that his or her use of force was reasonable—a significant difference.”). Thus, the jurys question asked the trial court for a non-statutory instruction.

But, non-statutory instructions are generally impermissible. As the Texas Court of Criminal Appeals has explained, “[W]e reject non-statutory instructions as improper comments on the weight of the evidence where such instructions are unnecessary to clarify the law and they also draw the jurys attention to a particular type of evidence.” Beltran De La Torre v. State, 583 S.W.3d 613, 618 (Tex. Crim. App. 2019).

Thus, to determine whether the trial court erred in refusing to answer the jurys question, we consider whether an answer (1) was unnecessary to clarify the law and (2) would have drawn the jurys attention to a particular type of evidence.

1. Answering the jurys question was unnecessary to clarify the law

Appellant argues that an answer to the jurys question was necessary to clarify the law because the charge erroneously instructed the jury on the presumption of reasonableness and thereby confused the jury. Appellant argues that the trial court erred in giving the presumption-of-reasonableness instruction because it was undisputed at trial that appellant engaged in criminal activity when he used deadly force. For this reason, he argues, the statutory presumption of reasonableness was not law applicable to the case, so the instruction was erroneous and confusing, as evidenced by the jurys question, which showed that the jury misconstrued the instruction to mean that appellants criminal activity negated his claim of self-defense. We disagree.

First, it was not undisputed that appellant was engaged in criminal activity at the time of the shooting. During voir dire, appellant offered to stipulate to engaging in criminal activity at the time of the shooting, but he never actually made such a stipulation. In his opening statement, appellant argued that there was “no evidence” that he was “a part of the negotiations” or “in control” of the drugs, which, he added, had “never been tested,” thereby suggesting a controlled substance was never even brought to Wilsons apartment. Then, during closing argument, appellants counsel told the jury that they should have doubts about the witnesses’ credibility and the “kind of investigation” that was done, again suggesting that appellant never actually possessed a controlled substance.

At trial, neither witness involved in the alleged drug transaction could say what was in the bottles, and the alleged drugs were never found or tested.

Thus, it was disputed whether appellant was engaged in criminal activity—possession with intent to distribute a controlled substance—at the time of the shooting, and the evidence presented at trial does not conclusively resolve the issue either way. Whether appellant was involved in criminal activity was a question for the jury.

The trial court could not be satisfied beyond a reasonable doubt that the evidence clearly precluded a finding that appellant did not engage in criminal activity. Thus, the presumption of reasonableness was properly submitted to the jury. See Tex. Penal Code § 2.05(b).

Second, the presumption-of-reasonableness instruction was not confusing; it accurately stated the law, and the jurys question does not rebut the presumption that the jury followed the charges instructions. See, e.g., Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998) (holding that jury note indicating improper consideration of parole did not overcome presumption that jurors followed courts contrary instructions); Thompson v. State, No. 02-18-00230-CR, 2019 WL 1065925, at *8 (Tex. App.—Fort Worth Mar. 7, 2019, pet. refd) (mem. op., not designated for publication) (holding that presumption that jury followed law not overcome when jury note indicated jury improperly considered parole “at some preliminary point in deliberations” and trial courts response referred jury to correct instruction in charge).

We hold that an answer to the jurys question was unnecessary to clarify the law. See Walters, 247 S.W.3d at 212–14 (holding that trial court did not err in denying non-statutory instruction informing jury that it could consider prior verbal threats in deciding issue of self-defense when (1) charge already covered substance of instruction and (2) instruction would have improperly focused jurys attention on specific type of evidence supporting finding of self-defense); Brown, 122 S.W.3d at 802–03 (rejecting jury instruction that “intent or knowledge may be inferred by acts done or words spoken” because, while neutral, it focused the jurys attention on evidence that might support finding of criminal intent, improperly told jury how to consider certain evidence, and improperly instructed jury on rule of appellate-evidentiary-sufficiency review).

2. Answering the jurys question would have drawn attention to a particular type of evidence

We now consider whether an answer to the jurys question would have drawn the jurys attention to a particular type of evidence.

Under Texas law, a defendants engagement in criminal activity at the time of the offense does not preclude a claim of self-defense, but the jury may consider it in determining the reasonableness of the defendants belief that the use of deadly force was immediately necessary. Evidence of the defendants criminal activity not only precludes the presumption of reasonableness, but it can also support a finding that the defendants belief was unreasonable, thereby negating self-defense entirely. In fact, the State argued as much in this case, given that appellant arrived at a drug deal with a firearm.

Had the trial court responded to the jury note by saying, “No,” or “No, the admitted commission of a crime does not negate the basis of a self-defense claim,” the trial court would have implicitly endorsed appellants theory of the case and drawn the jurys attention away from the evidence that appellant used deadly force while engaged in a drug deal and toward the evidence that appellant used deadly force in response to Valentines use of physical force to prevent appellant from leaving the apartment. By drawing the jurys attention away from one type of evidence and toward another type of evidence, an answer to the jurys question could have impacted how the jury weighed the evidence of the reasonableness of appellants belief in his need to use deadly force. We hold that an answer to the jurys question would have drawn the jurys attention to a particular type of evidence.

Because an answer to the jurys question was unnecessary to clarify the law (as the charge set forth standard statutory instructions from which the answer could be derived) and would have drawn the jurys attention to a particular type of evidence (i.e., evidence supporting appellants self-defense claim), we hold that the trial court did not err in refusing to answer the question and instead referring the jury to the charge. See Walters v, State, 247 S.W.3d 204, 212–14 (Tex. Crim. App. 2007) (holding that trial court did not err in denying non-statutory instruction informing jury that it could consider prior verbal threats in deciding issue of self-defense when (1) charge already covered substance of instruction and (2) instruction would have improperly focused jurys attention on specific type of evidence supporting finding of self-defense); see also Brown v. State, 122 S.W.3d 794, 802-03 (Tex. Crim. App. 2003) (rejecting requested jury instruction that “intent or knowledge may be inferred by acts done or words spoken” because, while neutral, requested instruction focused jurys attention on evidence that might support finding of criminal intent, improperly told jury how to consider certain evidence, and improperly instructed jury on rule of appellate-evidentiary-sufficiency review).

Accordingly, we overrule appellants third issue.

CONCLUSION

We affirm the trial courts judgment.

DISSENTING OPINION

The presumption of reasonableness instruction that the trial court included in the jury charge accurately states the law that applies when there is an evidentiary dispute on whether a defendant was engaged in criminal activity when the defendant used self-defense in killing another person. Had there been an evidentiary dispute in this case over whether appellant Damien Douglas Harris was engaged in criminal activity—namely, an illegal drug transaction—when he shot the complainant Terrance Valentine, then the trial court would not have erred by including the instruction and by refusing to give any clarifying instructions in response to the jurys note.

But there was no such evidentiary dispute in this case. Much the opposite, the record reveals undisputed evidence that Harris was engaged in criminal activity at the time of the shooting. At trial, the prosecution presented extensive and compelling evidence that Harris went to Ty-Zay Wilsons apartment to sell Valentine bottles of illegal, prescription-grade cough syrup. Defense counsel put on no contrary evidence whatsoever, and even offered to stipulate that the bottles in question contained illegal drugs.

It is well settled that only evidence—not attorney argument—can put an issue in dispute. The majority therefore errs by concluding that a defense attorneys vague closing-argument statement about an inadequate investigation created a dispute over whether the defendant was engaged in criminal activity at the time that the shooting occurred. To the contrary, Harris did not dispute in the jurys presence that he was engaged in illegal activity.

Because the evidence was undisputed that Harris was engaged in an illegal drug transaction, the trial court erred by instructing the jury on the presumption of reasonableness over defense counsels objection. Every court to consider the issue has held that when the defendants engagement in criminal activity is undisputed, the presumption of reasonableness is not applicable law. The trial court therefore erred by including this inapplicable law in its charge. The court then compounded its error by refusing to answer the jurys question with a clarifying instruction to eliminate the harm caused by including inapplicable law in the charge. Because Texas Court of Criminal Appeals precedent requires a new trial in these circumstances, I respectfully dissent.

I. The Presumption of Reasonableness

The first step in analyzing a claim of jury charge error is to “determine whether the jury instruction is erroneous.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Hopkins v. State, 615 S.W.3d 530, 548 (Tex. App.—Houston [1st Dist.] 2020, pet. refd) (“We review an alleged jury charge error regardless of preservation.”).

Under Texas law, the trial court bears the responsibility to deliver to the jury “a written charge distinctly setting forth the law applicable to the case.” Tex. Code Crim. Proc. art. 36.14; Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). The trial judge is “ultimately responsible for the accuracy of the jury charge and accompanying instructions.” Vega v. State, 394 S.W.3d 514, 518 (Tex. Crim. App. 2013). Indeed, “[t]he trial judge has the duty to instruct the jury on the law applicable to the case even if defense counsel fails to object to inclusions or exclusions in the charge.” Id. at 519. A trial courts substantive response to a question from the jury “essentially amounts to a supplemental jury instruction” and is therefore governed by the “same rules” that “generally govern jury instructions.” Lucio v. State, 353 S.W.3d 873, 875 (Tex. Crim. App. 2011). “Because a trial courts answer to a jurys question must comply with the same rules that govern charges,” the trial court, “as a general rule, must limit its answer to setting forth the law applicable to the case.” Id.

Here, Harris asserted the defense of self-defense. A person is justified in using deadly force against another if, among other things, the person “reasonably believes the deadly force is immediately necessary” to protect against anothers unlawful use of deadly force or to prevent the commission of certain enumerated criminal offenses, including murder, robbery, or aggravated robbery. Tex. Penal Code § 9.32(a). The actors belief that deadly force was immediately necessary under section 9.32(a) is presumed to be reasonable under certain circumstances, including when the actor was not engaged in criminal activity other than certain minor traffic-related offenses. Id. § 9.32(b)(3).

The crux of this appeal is whether the presumption of reasonableness instruction was law that was “applicable to the case.” That question turns on whether it was conclusively established that Harris was engaged in criminal activity at the time of the shooting. Under Texas law, when the “evidence conclusively establishe[s] that [the defendant] was engaged in criminal activity at the time he used deadly force,” the presumption of reasonableness instruction is “not the law applicable to the case.” Reyna v. State, 597 S.W.3d 604, 607 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Lee v. State, 415 S.W.3d 915, 925 (Tex. App.—Texarkana 2013, pet. refd) (“Although a few witnesses supported the self-defense theory, all of the eyewitnesses to the shooting claimed that Lee was actively distributing drugs that day; thus, she would not be entitled to the presumption of reasonableness.”).

II. The Undisputed Evidence Establishes that Harris Was Engaged in Criminal Activity at the Time of the Shooting

The majority concludes that the trial court did not err by giving the presumption of reasonableness instruction because “it was not undisputed that appellant was engaged in criminal activity at the time of the shooting.” The majority cites two grounds for this conclusion. First, the majority reasons that “neither witness involved in the alleged drug transaction could say what was in the bottles, and the alleged drugs were never found or tested.” Second, the majority cites arguments made by defense counsel in opening and closing statements as proof of a “disputed” issue.

I disagree on both counts. To begin, the record reveals undisputed witness testimony that Harris was engaged in criminal activity—namely, possession with intent to distribute a controlled substance—at the time of the shooting. Joseph Massey, Valentines friend, testified that he went with Valentine to Wilsons apartment and learned on the way that they were going to buy “lean,” which he knew was promethazine with codeine. They arrived at Wilsons apartment and waited on Harris to arrive to sell the drugs. After Harris arrived with a single box, Harris and Valentine talked about “[t]he buying and selling of the drugs.” Massey looked inside the box when it was opened and recognized its contents as bottles of “[p]harmaceutical grade promethazine codeine,” or “lean.”

That is not all. Wilson, who lived at the apartment and facilitated the drug deal, testified that Harris brought a cardboard box to his apartment. Wilson looked inside the box, and he testified that it contained “[t]he bottles. The promethazine bottles.”

Finally, Brady Templeton, a San Marcos Police Department investigator, testified that investigators suspected or learned that a drug deal had occurred at the apartment “at least in part for promethazine, which is a prescription[-]only cough syrup that comes in bottles.” All of this testimony is evidence that Harris was engaged in illegal drug activity at the time that the shooting occurred.

Because there is no contrary evidence that the bottles contained anything other than illegal cough syrup, the evidence was undisputed that Harris was engaged in criminal activity at the time of the shooting. The majoritys reliance on counsels opening and closing statements does not raise an evidentiary dispute that would justify an instruction on the presumption of reasonableness. It is well settled that an attorneys arguments, specifically those made during opening and closing statements, are not evidence. See Cary v. State, 507 S.W.3d 750, 755 (Tex. Crim. App. 2016) (stating that “arguments of the parties and their trial theories are not evidence”); Torres v. State, 371 S.W.3d 317, 320 (Tex. App.—Houston [1st Dist.] 2012, pet. refd) (“Questions or statements of counsel not under oath do not constitute evidence.”) (quoting Delgado v. State, 544 S.W.2d 929, 931 (Tex. Crim. App. 1977)).

I also disagree with the majoritys characterization of the opening and closing arguments by defense counsel as disputing that Harris was involved in criminal activity at the time of the shooting. First, the majority states that defense counsel argued during opening statements that there was “no evidence” that Harris was “a part of the negotiations” or “in control” of the drugs, which had “never been tested.” The majority concludes that this is a suggestion by defense counsel that a controlled substance was never brought to Wilsons apartment. However, these statements were not made during Harriss opening statement to the jury. Rather, defense counsel made these arguments during a pretrial hearing prior to voir dire, outside the presence of any jury or venire panel. In closing arguments, when challenging the witnesses’ credibility and the “kind of investigation” conducted by law enforcement officers, defense counsel appeared to be referring to a witnesss alleged false statements to law enforcement officers and the presumption of innocence. The record gives no indication that the vague reference to the “kind of investigation” conducted concerned whether the bottles contained promethazine with codeine.

In short, during opening and closing statements, defense counsel never disputed that Harris was involved in criminal activity when he shot Valentine. Much the opposite, during opening statements, defense counsel argued that Harris “walked right into a trap” during a “drug deal.” When Harris figured out it was a trap, he “tried to get the box and walk out the door,” when he was stopped by Valentine who tried to shoot Harris first. Similarly, during closing, defense counsel argued that Harris went to Wilsons apartment for a “drug deal”; Valentine handed over counterfeit money for the drug “transaction”; and then “the box [was] gathered up, the bottles [were] gathered up, and Mr. Harris back[ed] out of this” before running into Valentine and shooting him. Defense counsel repeatedly referenced the drug deal that brought Harris and Valentine together at that apartment. Thus, I disagree with the majority that defense counsel disputed that Harris was engaged in criminal activity at the time of the shooting.

This case is analogous to Lee v. State, in which the Texarkana Court of Appeals determined that a defendant was not entitled to the presumption of reasonableness. See 415 S.W.3d at 925. There, the defendant and a few witnesses testified at trial that the defendant shot the complainant in self-defense, but many other witnesses testified that the shooting was not in self-defense. Id. at 923. All of the witnesses, however, testified that the defendant was their drug dealer and was actively selling drugs from her house where she shot the complainant that day. Id. at 923–25. Because the defendant was actively engaged in the selling of drugs when she shot the complainant, the court held that she was not entitled to the presumption of reasonableness. Id. at 925. In reaching its holding, the court did not say whether any drugs had been found at the house or tested by authorities. Id. at 923–25.

Similarly here, Massey and Wilson—the only two witnesses to Valentines shooting who testified at trial—testified that Harris was engaged in selling bottles of pharmaceutical-grade cough syrup when Valentine was killed. Thus, Harris was not entitled to the presumption of reasonableness.

The trial court therefore erred by including the presumption of reasonableness instruction in the jury charge. “When it comes to jury instructions, trial courts are required to instruct the jury on the law applicable to the case.” Williams v. State, ––– S.W.3d ––––, No. PD-0477-19, 2021 WL 2132167, at *5 (Tex. Crim. App. May 26, 2021) (internal quotation marks omitted); see Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (“The trial judge has an absolute sua sponte duty to prepare a jury charge that accurately sets out the law applicable to the specific offense charged.”). The presumption of reasonableness did not apply to the case, given the undisputed evidence that Harris was engaged in an illegal drug deal at the time of the shooting.

III. Preservation of Error and Demonstration of Harm

“[I]f a defendant complains on appeal about an erroneous instruction (or lack of a proper instruction) regarding an area of the law that is considered the law applicable to the case, the objection (or lack thereof) determines the applicable standard for assessing harm.” Williams, 2021 WL 2132167, at *5. “If a proper objection was made at trial to an error in the jury charge, reviewing courts determine whether the error caused the defendant some harm.” Id.

The record reflects that defense counsel preserved error by objecting to the erroneous inclusion of the presumption of reasonableness in the trial courts jury charge, receiving a ruling on his objection, and requesting a curative instruction in response to the note that the jury submitted to the court during deliberations. See Tex. R. App. P. 33.1(a).

During voir dire, the State insisted upon including the presumption in the jury charge over the defenses objection:

State: Okay. The law additionally states that reasonable belief is presumed if a person whose force was used against was attempting to commit a burglary, kidnapping, sexual assault, robbery or murder; or the person using force to not provoke the person whose force was used against; or the person using force was not engaging in any criminal activity. If any one of those things is proven false, in other words, if there was criminal activity, or the person claiming self-defense did provoke it, or the person whose self-defense was used against was not engaged in those listed crimes, that belief is not presumed reasonable and youve got to evaluate it on its own merits.

If any of those things are proven false, why do you think, Ms. Bell [a venireperson], it should be more difficult to claim self-defense in that you had a reasonable belief—

Court: Counsel approach.

Defense: At this time may we approach?

(At the Bench)

Court: Is this the issue you were talking about before? Whats your specific objection?

Defense: Were objecting—were stipulating that he doesnt get the presumption, so its a misuse of the law. The Constitution is to protect the Defendant, so hes misusing the presumption. Its a right for the accused and not the State to use in the adverse against him. Hes basically using his Constitutional rights against him.

State: And, Your Honor, were at the very beginning stages. All Im talking about is the law generally. Im not talking about the specific facts. There is no evidentiary stipulation on record at this point. I dont think there can be. So I think Im still entitled to talk about the law generally, which is what Im doing.

Defense: Your Honor, if I may? The Defendant is the only one that can waive the right. We are waiving his right to the presumption of reasonableness. Im saying that on the record. Ive stipulated to the record. Theres no reason for us to discuss this.

Court: Im going to overrule the objection, but Im going to give them an instruction related to evidence and the law. And the Defenses objection is noted.

(Emphasis added.)

The State continued by explaining to the venire panel that it would be “harder” for someone to prove self-defense if that person was engaged in criminal activity at the time of a shooting, a questionable statement that was challenged by the defense:

State: Ms. Bell, I think I left off with you. Why might the legislature have decided—the legislature decided that it should be harder to claim self-defense if Im engaged in criminal activity? What do you think was going on there?

Defense: Im going to object, Your Honor, as to a misstatement of the law. Its not harder to prove self-defense.

State: Well, it is in the sense that you dont get the presumption of reasonableness.

Court: Sustained.

Harm from the erroneous instruction is evident in the question sent by the jury during deliberations: “Does the admitted commission of a crime, sale of a controlled substance, negate the basis of a claim of self-defense[?]” This question reveals that the jury focused on the presumption of reasonableness instruction—which was not applicable law—and struggled with how to apply it to the case at hand.

This is precisely the result intended by the State when it requested an inapplicable instruction to make it “harder” for Harris to prove self-defense. This is also precisely the result that defense counsel sought to avoid by objecting to discussion and application of the presumption. A simple one-word instruction—“no”—in response to the jurys question would have eliminated the confusion, and Harris requested as much. The trial courts failure to give this clarifying instruction harmed Harris. In these circumstances, Harris is entitled to a new trial. See Arteaga, 521 S.W.3d at 340 (“The normative remedy for harmful jury charge error is to reverse the convictions and remand for a new trial.”). Therefore, I respectfully dissent.

DISSENTING OPINION

This is an appeal from a conviction for murder. Damien Douglas Harris fatally shot Terrence Valentine after a drug deal went awry. At trial, the defense maintained Harris killed Valentine in self-defense. The jury disagreed, finding Harris guilty.

In the charge, the trial court instructed the jury on self-defense. The instructions identified circumstances under which a defendants belief that deadly force was immediately necessary is presumed to be reasonable. See Tex. Penal Code § 9.32(b). Among other things, this instruction informed the jury that to qualify for the presumption, the defendant must not have been engaged in criminal activity, other than minor traffic violations, when he used deadly force. See id.

While deliberating as to whether Harris was guilty, the jury sent a note asking the trial court about the charges instruction on the presumption of reasonableness. The jury expressed confusion about the instructions provision that the presumption of reasonableness does not apply when a defendant is engaged in criminal activity. Specifically, the jury asked the trial court, “[D]oes the admitted commission of a crime, sale of a controlled substance, negate the basis of a claim of self-defense?”

Defense counsel asked the trial court to answer the jurys question in the negative. Instead, the trial court answered by stating that the law did not allow the trial court to answer the jurys question, referring the jury to the instructions already contained in the charge, and advising the jury to continue its deliberations in accord with these instructions. In other words, the trial court effectively told the jury to make sense of the presumption-of-reasonableness instruction on its own.

The majority holds that the trial court did not err in refusing to substantively answer the jurys question. The majority reasons that the instruction at issue accurately stated the law and is not confusing. The majority further reasons that answering the jurys question would have impermissibly endorsed Harriss self-defense claim by deemphasizing that he was engaged in criminal activity when he used deadly force while emphasizing Valentines criminal conduct at the time.

I disagree. While the presumption-of-reasonableness instruction correctly stated the law, the instruction did not answer the jurys question. At best, the answer the jury sought might be inferred from the charge when read as a whole. But the jurys question shows it did not make this inference. Proper instructions must give the jury all the applicable law, rather than supplying parts from which the jury may cobble together all the applicable law for itself. Answering the jurys question would not have endorsed Harriss self-defense theory, and the trial courts refusal to answer makes it impossible on appeal to tell whether the jury correctly applied the law.

I therefore respectfully dissent.

BACKGROUND

A grand jury indicted Harris for the offense of murder, alleging that he intentionally and knowingly caused Valentines death by shooting him with a firearm. Harris pleaded not guilty, and the charged offense was tried to a jury.

Five people were present when Harris shot Valentine: Devin Bethea and Harris, who were there to sell prescription cough syrup; Valentine and Joseph Massey, who were there to buy the syrup; and Ty-Zay Wilson, who introduced the buyers to the sellers and rented the apartment where they met. Of these five, Massey and Wilson testified. Valentine was dead. Harris exercised his right not to testify. No one called Bethea to testify, possibly because he was facing his own charge for the misdemeanor offense of failing to report a felony—Valentines murder.

Wilsons Testimony

Wilson previously was enrolled at Blinn College and later transferred to Texas State University. Valentine had been Wilsons roommate at Blinn for about two-and-half years. Bethea had been Wilsons roommate at Texas State for a year.

Wilson remained in contact with both Valentine and Bethea afterward. Wilson put Valentine in touch with Bethea, who had prescription cough syrup—promethazine with codeine—for sale. Valentine was interested in buying it.

Wilson agreed to let the parties buy and sell the cough syrup at his apartment. Wilson said the transaction had four participants: Bethea and Harris as sellers and Valentine and Massey as buyers. Wilson disclaimed any role in the sale.

Valentine arrived with Massey, whom Wilson did not know. Valentine and Massey counted their money while Wilson played a video game. Wilson noticed Valentine had a pistol in his lap. Wilson indicated that Valentine was paranoid. Valentine asked about Bethea, stating that if Bethea tried to rob him, Valentine would just take the cough syrup. Wilson tried to reassure Valentine that he had nothing to worry about because Bethea was not the kind of guy who would do so.

Bethea and Harris later arrived at Wilsons apartment. When they arrived, Harris was carrying a cardboard box containing the prescription cough syrup.

Valentine and Massey and Bethea and Harris met in Wilsons kitchen. Wilson went to his room and then returned to the kitchen. When Wilson returned, Bethea and Harris were counting money. Valentine and Massey were standing nearby.

Wilson then heard either Bethea or Harris say that Valentine and Massey were short. At this point, Massey asked Valentine where the rest of the money was. Valentine replied that he had the rest of the money in his wallet. But Harris responded by packing up the cough syrup and stating there would be no sale.

When Harris tried to leave with the cough syrup, Valentine “bum rushed” him. Valentine pressed his body into Harris, who either was knocked backward as a result of Valentines physical contact or backed up on his own. At this point, Harris and Valentine both reached into their respective waistbands to draw pistols. Wilson testified that Harris and Valentine did so at “literally almost the same time.”

Wilson did not know who drew their pistol first because when Harris and Valentine reached into their respective waistbands, Wilson turned around and fled from the apartment. As Wilson was fleeing, he heard two gunshots fired behind him. Wilson stated that there was a momentary beat or pause between the two shots.

Wilson did not call the police after reaching safety. He did not return to his apartment until after the police arrived on the scene. Even then, he did not go inside.

Weeks later, Wilson viewed a photo line-up. Wilson identified Harris.

On cross-examination, defense counsel asked Wilson if he had previously told a detective that Valentine intended to rob Bethea and Harris all along. Wilson denied that Valentine ever said so before the transaction fell through. Wilson insisted he did not know anything was amiss until either Bethea or Harris said that the money was short. But Wilson acknowledged that he became concerned when Valentine voiced his intent to take the cough syrup by force if the deal went sideways. In retrospect, knowing the money was short, he understood why Valentine was paranoid.

Wilson agreed that Valentine was a big man. Valentine had played football at Blinn College. He stood about 6 feet tall and weighed around 300 pounds. When a detective investigating the shooting asked Wilson whether he thought Harris had shot Valentine in self-defense, Wilson said he thought Harris had defended himself. But Wilson conceded that he did “not really” understand the law of self-defense.

The State granted immunity to Wilson in exchange for his testimony. But the subject of Wilsons immunity deal was not broached in front of the jury.

Masseys Testimony

Massey had been close friends with Valentine for years and was living with him at the time of the shooting. According to Massey, Valentine invited him on a trip to meet a friend in San Marcos, where Wilson resided. But Massey testified he did not know they were going to meet Wilson or that Valentine was going there to buy prescription cough syrup before they arrived at Wilsons apartment.

Massey said Valentine had a large sum of money. But Massey denied that he knew Valentine had a firearm in his possession on the day of the shooting.

When Valentine and Massey arrived at Wilsons apartment, Massey learned that Valentines money was counterfeit and Valentine intended to use this counterfeit money to buy promethazine. Massey was familiar with counterfeit money, as he had used counterfeit money to buy things in the past. But Massey denied knowing Valentine intended to take the cough syrup if the deal went awry.

Massey did not know Wilson. Nor did Massey know Bethea or Harris.

When Bethea and Harris arrived, Harris was carrying a box. They came into the apartment, and Harris set the box down on the kitchen island. Bethea and Harris then spoke with Valentine about the cough syrup. Massey denied he was involved.

Either Bethea or Harris opened the box, which contained bottles. Massey said the bottles appeared to contain prescription cough syrup. Valentine gave Bethea and Harris the counterfeit money, and Bethea and Harris began counting the money.

Massey first knew the deal had gone wrong when Harris looked up and made eye contact. According to Massey, Harris had an angry expression on his face, presumably having discovered that Valentines money was counterfeit. Harris then picked up the box of bottles and began walking toward the apartments front door.

Valentine grabbed Harris by his shirt collar and pushed him up against a wall. At this point, the two were standing face-to-face. Harris reached for his pistol and shot Valentine. Massey said he did not see Valentine reach for a pistol at any time.

But Massey does not appear to have witnessed the actual shooting. He testified that he ducked behind the kitchen island as Harris reached for his pistol. Massey heard a single gunshot while he was behind the island. Massey then fled upstairs.

Massey returned downstairs a short while later. When Massey returned, he saw Valentine lying facedown on the floor. Valentine had been shot in “the face area,” and there was a lot of blood. A small pistol lay next to Valentine. No one else remained in the apartment. Bethea, Harris, and Wilson had all apparently left.

Massey called 911. He also tried to render first aid to Valentine.

Before the police arrived, Massey picked up the pistol and placed it behind a nearby air conditioning unit outside. He agreed he was trying to hide the pistol. He also hid the counterfeit money. He did not want the police to see the pistol or money. In addition, Massey took Valentines cell phone and put it in one of his own pockets.

Weeks later, Massey viewed a photo line-up. Massey identified Harris.

On cross-examination, defense counsel confronted Massey with a text message he sent to Valentine the day before the shooting. Massey wrote: “I forgot that lick tomorrow.” Massey testified that the term lick means “any exchange from hand to hand that involves money.” He admitted that a “lick can be a robbery.” But Massey denied that he and Valentine planned to rob Bethea and Harris, even as a contingency plan in the event that the spuriousness of their money was discovered.

Defense counsel also confronted Massey with prior videotaped interviews Massey gave to a detective. In one interview, Massey admitted he knew he and Valentine were traveling to San Marcos for “a drug thing” before they arrived. Massey also admitted that he “was trying to get some” cough syrup for himself.

During cross-examination, Massey admitted he put Valentine in touch with the person who supplied Valentine with the counterfeit money. But Massey only admitted this after being confronted with a prior statement he had made.

The State granted immunity to Massey in exchange for his testimony. Massey testified he had been prepared to testify without an immunity deal, which was brokered only after defense counsel suggested he could face criminal charges.

Other Witnesses

The jury heard from several other witnesses, none of whom were eyewitnesses to the aborted drug deal or shooting. These other witnesses included Valentines mother, a medical doctor employed by the Travis County Medical Examiners Office, several peace officers with the San Marcos Police Department who responded to the shooting, two investigating detectives, a crime-scene evidence supervisor, a forensic scientist employed by the Texas Department of Public Safety, and a forensic scientist and crime-scene analyst who testified as a defense expert.

Valentines mother testified her son had played football in high school both as a defensive and offensive tackle. He was an inch or two under six feet tall.

Dr. Leisha Wood was the medical examiner who autopsied Valentines body. She testified Valentine “had a gunshot wound on the posterior left side of the head.” The gunshot wound was located about four inches below the top of his head. Based on the autopsy, Wood concluded the bullet had ricocheted inside his skull. The trajectory of the bullet “was left to right, slightly back to the front, and upward.” Wood testified Valentine had been shot a single time, which was fatal and likely would have immediately incapacitated Valentine. Wood examined Valentines body for other injuries but did not see any other signs of injury on his body that would indicate Valentine had been in a fight or struggle before he was shot. Wood classified Valentines cause of death as homicide. But she agreed that homicide is not the same thing as murder. By homicide, Wood meant only that he had died at anothers hands. For medical examiners, this classification is not a legal determination of guilt.

On cross-examination, Wood agreed there were five bullet holes in the hooded sweatshirt Valentine was wearing despite there being just one gunshot wound. Wood further agreed that these holes indicated the sweatshirt was not pulled smoothly over Valentines head when he was shot. When asked whether this bunching could be consistent with a fight or physical struggle, Wood answered, “It could be.” Wood also agreed that the absence of other injuries did not exclude the possibility that Valentine had been involved in a fight or struggle before he was shot and killed.

When Wood said the gunshot wound likely immediately incapacitated Valentine, she meant he would have had no motor skills afterward. Wood agreed it was very unlikely that Valentine returned fire after being shot in this case. But she also acknowledged Valentine still could have had involuntary body movements, like muscle contractions, though she did not know how common this would be. For an involuntary movement to result in Valentine firing his own pistol, however, his finger already would have to have been on the trigger when he was shot by Harris. Wood agreed the likelihood of firing a pistol in this involuntary manner would be pretty low. Wood also testified there are “rare exceptions” when “somebody receiving a head wound like that” would not be immediately incapacitated.

When peace officers arrived at Wilsons apartment, only Massey remained there. Wilson had fled and did not return until later. Bethea and Harris had fled.

One of the peace officers who responded to the scene after the shooting testified there were two shell casings near Valentines body. The casings were from bullets of different calibers, which could not have been fired from the same pistol. Officers found a pistol matching one of these calibers behind the air conditioning unit. The officers also found the counterfeit money hidden underneath a mattress.

A few days after the shooting, Detective M. Casillas searched Wilsons apartment to find the second bullet that had been fired. During this search, Casillas found a blemish in a couch leg. The floor near this couch leg was also blemished. The second bullet—the one fired from Valentines pistol—was in the couch leg.

Casillas stated he made this search of Wilsons apartment based on witness interviews. Wilson told Casillas and the lead investigator, Detective D. Templeton, that both Valentine and Harris had pistols at the time of the shooting. But based on Wilsons interview, Casillas understood Harris to have reached for his pistol first.

Templeton also testified about the interviews of Wilson and Massey. Templeton said Wilson indicated that Valentine pushed Harris—whose identity Wilson did not yet know—up against a wall and reached for his pistol, possibly in response to Harris having drawn his own pistol from his waistband. Templeton also learned of Betheas involvement from Wilson during this interview. Templeton located Bethea afterward, but Bethea did not cooperate with the investigation.

Based on an examination of Betheas phone or phone records, Templeton learned that Bethea and Harris interacted many times near the timeframe of the shooting. Templeton then showed a photo line-up to Wilson and Massey. Both identified Harris as the person who had accompanied Bethea and shot Valentine.

Templeton testified he was familiar with the term lick. According to Templeton, this term signifies a robbery or a burglary. Finally, Templeton testified that promethazine is a prescription-only cough syrup, which comes in bottles.

Sean Daniel, a forensic scientist with the Texas Department of Public Safety, removed the bullet from the couch leg. Based on his testing and examination, Daniel determined this bullet was fired from Valentines pistol. Daniel also testified that the two bullets fired in this case could not have been fired from the same pistol.

Daniel also testified that he performed a “drop test analysis” on Valentines pistol. The purpose of this analysis is to determine whether a pistol can accidentally discharge if it is dropped. Valentines pistol did not do so when Daniel tested it. Based on this testing, Daniel agreed that one would have to apply full pressure to the trigger for the pistol to fire. According to Daniel, one would have to apply “a little over five pounds” of pressure on the trigger of Valentines pistol to make it fire.

Tammy Barnette, a forensic scientist and crime-scene analyst who previously worked for the Houston Forensic Science Center, testified for the defense. She analyzed the trajectory of the bullet fired from Valentines pistol. Barnette concluded the bullet fired from his pistol hit the floor and then ricocheted into the couch leg.

On cross-examination, Barnette agreed that Valentine was shot in the back of the head. She also agreed that Valentines hooded sweatshirt appeared to have been pulled up over his head because there was a hole through the sweatshirts hood.

Jury Charge and Charge Conference

In the charge, the trial court instructed the jury on self-defense. The instructions identified circumstances under which a defendants belief that deadly force was immediately necessary to protect himself is presumed to be reasonable. See Penal § 9.32(b). Among other things, this instruction informed the jury that to qualify for the presumption, the defendant must not have been engaged in criminal activity, other than minor traffic violations, when he used deadly force. See id.

The parties had an opportunity to review the trial courts proposed charge before it was given to the jury. The trial court held a charge conference after both sides rested. Neither side objected to the jury charges self-defense instructions.

Jurys Question about the Charge

Jury Verdict and Judgment

The jury found Harris guilty of murder as charged in the indictment and assessed his punishment at 20 years of imprisonment. The jury did not assess a fine. The trial court entered a judgment of conviction in accord with the jurys verdict.

Motion for New Trial

Harris moved for a new trial. As grounds for new trial, he asserted the trial court failed to properly answer the jurys question about the presumption of reasonableness. He also asserted that the presumption of reasonableness was inapplicable on the facts of this case and should not have been included in the charge.

Nothing in the record shows that Harriss new-trial motion was set for hearing or heard. The motion was denied by operation of law. See Tex. R. App. P. 21.8(c).

DISCUSSION

Harris contends the trial court erred in refusing to answer the question the jury asked about the presumption of reasonableness in the context of self-defense. He maintains the jurys question indicated the jury was uncertain as to whether his own criminal activity, possessing prescription cough syrup with the intent to sell it, categorically precluded the possibility that he shot Valentine in self-defense. So, in refusing to answer the question, Harris asserts, the trial court negated the defense.

A. Standard of review

When a trial court substantively answers a question from the jury during deliberations, the courts answer amounts to an additional or supplemental jury instruction. Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993). But when, as here, the trial court refuses to answer the jurys question or merely refers the jury to the instructions already given, the courts refusal to answer or reference to the instructions given is not an additional or supplemental jury instruction. Id.

The question in this appeal is whether the jurys question was proper. If the request was a proper one on a question of law, Article 36.27 of the Code of Criminal Procedure obligated the trial court to substantively answer with an additional or supplemental instruction. Gamblin v. State, 476 S.W.2d 18, 20 (Tex. Crim. App. 1972); Wade v. State, 164 S.W.3d 788, 794–95 (Tex. App.—Houston [14th Dist.] 2005, no pet.). If not, the trial court did not err in refusing to give an additional or supplemental instruction. Gamblin, 476 S.W.2d at 20; Wade, 164 S.W.3d at 795.

In deciding whether a jurys question was proper and thus required an additional or supplemental instruction, we are guided by the principles that apply to the contents of the jury charge. See Allaben v. State, 418 S.W.2d 517, 521 (Tex. Crim. App. 1967); Barrera v. State, 10 S.W.3d 743, 747 (Tex. App.—Corpus Christi 2000, no pet.). This is so because any additional or supplemental instruction that the trial court gives to the jury must generally comply with the same rules that govern the charge itself. Lucio v. State, 353 S.W.3d 873, 875 (Tex. Crim. App. 2011).

Article 36.14 of the Code of Criminal Procedure governs the charge. Daniell, 848 S.W.2d at 147. It requires the charge to distinctly set forth the law applicable to the case. Tex. Code Crim. Proc. art. 36.14. This includes defensive issues, like self-defense, when raised by the evidence and properly requested. Mendez v. State, 545 S.W.3d 548, 552–53 (Tex. Crim. App. 2018). Article 36.14 also bars the charge from doing several things. The charge cannot express an opinion on the weight of the evidence, summarize the testimony, discuss the facts, or include argument calculated to provoke the jurys sympathy or passions. Lucio, 353 S.W.3d at 875.

If the trial court erred in refusing to give an additional or supplemental instruction, then we must assess whether the error harmed the defendant. Daniell, 848 S.W.2d at 147–48 & n.4. When, as here, the defendant objected to the trial courts refusal to give an additional or supplemental instruction in answer to the jurys question, we must reverse if the error caused him some harm. Heigelmann v. State, 362 S.W.3d 763, 775–76 (Tex. App.—Texarkana 2012, pet. refd).

Some harm means actual harm, not merely theoretical harm. Jordan v. State, 593 S.W.3d 340, 347 (Tex. Crim. App. 2020). Under this standard, we must reverse if the error was calculated to injure the defendants rights. Id. This means that the presence of any harm, regardless of degree, requires reversal. Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App. 2019). That is, we can only affirm if the error is harmless. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

Neither side bears a burden of proof with respect to showing harm. Rogers v. State, 550 S.W.3d 190, 191 (Tex. Crim. App. 2018). Instead, we must make our own assessment as to whether some harm occurred. Elizondo v. State, 487 S.W.3d 185, 205 (Tex. Crim. App. 2016). In making our review for harm, we look at the entire record, including the jury charge, contested issues, weight of the evidence, arguments of counsel, and other relevant information. Jordan, 593 S.W.3d at 347.

B. Applicable law

To be justified in using deadly force against another, the actor must reasonably believe that deadly force is immediately necessary for one of two purposes: to protect the actor against the others use or attempted use of unlawful deadly force or to prevent the others imminent commission of certain felonies, including murder, robbery, and aggravated robbery. Penal § 9.32(a). Under certain circumstances, the actors belief that deadly force is immediately necessary is presumed to be reasonable. Id. § 9.32(b). This presumption applies when the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actors occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actors habitation, vehicle, or place of business or employment; or

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

Id.

But failure to satisfy the conditions required for the presumption of reasonableness to apply does not bar a claim of self-defense. Rogers, 550 S.W.3d at 193. If the presumption does not apply, the reasonableness of the actors belief that deadly force was immediately necessary presents a fact issue for the jury to resolve based on the evidence admitted at trial. See id. (self-defense must be submitted to jury if issue is raised by evidence even when that evidence is disputed or weak).

C. Analysis

1. The trial court erred in refusing to answer the jurys question.

The defense argued that Harris shot Valentine in self-defense. The charge therefore instructed the jury on self-defense. As part of the instruction on self-defense, the charge included the following explanation as to when an actors belief that deadly force was immediately necessary is presumed to be reasonable:

Presumption

An actors belief that deadly force was immediately necessary is presumed to be reasonable if:

1. the actor knew or had reason to believe that the person against whom the deadly force was used:

a. unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actors occupied habitation, vehicle, or place of business or employment;

b. unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actors habitation, vehicle, or place of business or employment; or

c. was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery; and

2. the actor did not provoke the person against whom the force was used; and

3. the actor was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

If you find the State has disproved one or more elements of 1, 2, or 3 listed above, the presumption does not apply and you are not required to find that the actors belief was reasonable.

See Penal § 9.32(b).

But the charge did not explain the nature of presumptions in general. See id. § 2.05(b)(2) (requiring trial court to give certain instructions to jury with respect to presumptions that favor defendant). Nor did the charge instruct the jury how the presumption of reasonableness interacted with the remainder of the instructions on self-defense beyond the statement that the jury was not required to find the defendants belief that deadly force was immediately necessary reasonable if the State disproved one of the elements needed for the presumption to apply.

The instruction on the presumption of reasonableness confused the jury during its deliberations. The jury sent a note to the trial court asking: “[D]oes the admitted commission of a crime, sale of a controlled substance, negate the basis of a claim of self-defense?” But the trial court refused to the answer the jurys question. Instead, the trial court informed the jury: “You have been given the law.” The trial court also checked a box on its response form that stated: “The court under the law is not permitted to answer the question that you have presented. Please refer to and follow the instructions already given to you, and continue your deliberations.”

The trial court was mistaken in its conclusion that the law disallowed it from answering the jurys question. The jurys question was a proper one. It requested further instruction on the law applicable to the facts of the case. The applicable law is an appropriate subject for an additional or supplemental jury instruction. Tex. Code Crim. Proc. art. 36.14. Moreover, the trial court could have answered the jurys question with a simple “no.” While the presumption of reasonableness does not apply when a defendant is engaged in criminal activity, his criminal activity does not disallow a jury from finding he acted in self-defense. Rogers, 550 S.W.3d at 193; Barrios v. State, 389 S.W.3d 382, 393 (Tex. App.—Texarkana 2012, pet. refd).

When, as here, the jury expresses confusion about a rule of law based on the wording of the charge and the trial court can dispel the jurys confusion with a simple additional or supplemental instruction, the trial court does not err by giving one. Two decisions suffice to show that a trial court does not err in so instructing the jury.

In Bonner v. State, the defendant was tried for aggravated robbery. 820 S.W.2d 25, 26 (Tex. App.—Houston [14th Dist.] 1991, pet. refd). At trial, there was testimony that the defendant threatened employees with a knife while trying to leave a store with stolen merchandise. Id. During deliberations, the jury sent the trial court a note effectively asking two questions: whether the defendant has to threaten harm while trying to take property to be guilty of robbery or whether the defendant could still be guilty of robbery even if he threatened harm during his flight from the robbery. Id. at 29. The trial court answered the first question “no” and the second question “yes,” elaborating that the law provided that a threat “does not have to be made while the actor is attempting to obtain or maintain control of the property, it may be made during the commission of flight or attempted flight.” Id. On appeal, the defendant challenged this supplemental instruction as an improper comment on the weight of the evidence. Id. Noting that the trial courts supplemental instruction was a correct statement of the law and did not refer to any evidence, the court of appeals held that the trial court did not err in giving the instruction. Id.

In Bell v. State, the defendant was tried for sexual performance by a child and other sex offenses. 326 S.W.3d 716, 718 (Tex. App.—Dallas 2010, pet. dismd). At trial, the defendant testified that the 12-year-old child had told him she was 19 years old. Id. at 719–20. During deliberations, the jury asked the trial court two interrelated questions: whether the fact that the defendant thought he was misled about the childs age was a factor in deciding he did not know he was committing a crime and whether being misled in this regard was a defense. Id. at 722. In response, the trial court answered that being mistaken about the childs age “is not a defense.” Id. at 722–23. On appeal, the defendant challenged the instruction on the ground that it assumed the truth of a contested fact—whether he was aware of the childs true age—and thus was an improper comment on the weight of the evidence. Id. at 723. Given that the defendants knowledge of the childs age was not relevant to the defendants guilt as a matter of law, the court of appeals held that the trial court did not err in answering the jurys question with the supplemental instruction that a mistaken belief as to the childs age was not a defense. Id. at 723–24.

In contrast, a trial court properly refuses to give an additional or supplemental instruction when the charge already answers the jurys question. E.g., Ash v. State, 930 S.W.2d 192, 195–96 (Tex. App.—Dallas 1996, no pet.). But this is not the case here. The charge did not explicitly instruct the jury that it could find Harris acted in self-defense even if he was engaged in criminal activity. At best, the jury might have inferred this rule of law from the existing jury instructions. But the jurys question evincing confusion on this very matter shows it had not in fact made this inference. Furthermore, the jury should not have to infer the law applicable to the case. It is the role of the trial court to instruct the jury on the law. Tex. Code Crim. Proc. art. 36.13. When the charge contains a gap that causes the jury to be uncertain about the applicable law, the trial court must fill that gap with an additional or supplemental instruction rather than leaving the jury to work out the law on its own. Tex. Code Crim. Proc. art. 36.14, 36.16; see also Reeves, 420 S.W.3d at 818 (purpose of jury charge is not merely to avoid confusing jury but to prevent confusion).

In its motion for en banc reconsideration, the State argues that decisions like Bonner and Bell are inapposite. The State posits that the correct inquiry on appeal is not whether the trial court would have reversibly erred by answering the jurys question had it done so, but rather whether the trial court reversibly erred in not answering, given that the charge correctly stated the law as to the presumption.

The majority is silent on this point. The States position is untenable.

The distinction the State proposes falls apart when one examines the trial courts ruling. The State correctly says that the trial court refused to answer the jurys question, and I agree that the trial courts refusal to answer the question is the ruling this court must review. But the trial court refused to answer the jurys question and instead referred the jury to the existing instructions in the charge based on an error of law. Specifically, the trial court concluded and informed the jury that “under the law” the court was “not permitted to answer the question” the jury asked in its note. Bonner and Bell, in which trial courts substantively answered the jurys questions and were affirmed on appeal, demonstrate that the law did not disallow the trial court from answering the jurys question about the presumption of reasonableness.

In this case, the jury asked the trial court to answer a straightforward question about the applicable law after retiring to deliberate: “[D]oes the admitted commission of a crime, sale of a controlled substance, negate the basis of a claim of self-defense?” As the Court of Criminal Appeals has long said, the trial court was obliged to answer the jurys question: “If the jury after retirement request[s] additional instructions upon a question of law and the subject matter of the request is proper there can be no question but [t]hat the [c]ourt should give such instructions in writing.” Walker v. State, 440 S.W.2d 653, 659 (Tex. Crim. App. 1969); accord Lucio, 353 S.W.3d at 875 n.2 (citing and quoting Walker, 440 S.W.2d at 659, and Gamblin, 476 S.W.2d at 20, for principle that Article 36.27 of the Code of Criminal Procedure requires trial courts to answer proper jury questions about the law).

Here, the trial courts refusal to substantively answer the jurys question creates a problem like the one appellate courts face in civil cases when a charge commingles valid and invalid theories of recovery in a single broad-form liability question. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000). Given the confusion evinced by the jurys question, it is possible that the jury rejected Harriss claim of self-defense for an invalid reason. Namely, the jury could have found that Harris was engaged in criminal activity when he used deadly force and mistakenly believed that this fact negated his claim of self-defense. Due to the general guilty verdict returned by the jury, we have no way of knowing whether the jury rejected Harriss self-defense claim for this invalid reason or for a valid one. Cf. Owens v. State, 827 S.W.2d 911, 917 (Tex. Crim. App. 1992) (no way to tell whether jury considered extraneous act evidence for proper or improper purpose given that limiting instruction given by trial court did not include proper purpose at issue).

Of course, we presume the jury understood and followed the charge absent evidence to the contrary. Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim. App. 2011). Here, however, the jurys note asking about the applicable law evidences that it did not understand the charge. See, e.g., Castillo-Fuentes v. State, 707 S.W.2d 559, 562–63 (Tex. Crim. App. 1986) (note jury sent to court during deliberations asking question about applicable law showed jury was confused by instructions); Dolkart v. State, 197 S.W.3d 887, 894 (Tex. App.—Dallas 2006, pet. refd) (same); see also Luquis v. State, 72 S.W.3d 355, 367 (Tex. Crim. App. 2002) (indicating that jury notes could indicate or express confusion as to how to apply law stated in charge). We cannot presume the jury understood the charge because the jury said it did not. See Elizondo, 487 S.W.3d at 208 (ordinary presumption that jury followed written instructions does not apply when written instructions are not understandable).

Disregarding the jurys manifestation of confusion, the State maintains the presumption instruction itself was accurate and there is no indication the jury failed to heed this instruction. Citing Colburn v. State, the State argues the jurys note does not support Harriss position that the jury was confused in a way that could have led it to misapply the presumption as barring his self-defense claim. See 966 S.W.2d 511, 519 (Tex. Crim. App. 1998) (jury note did not overcome presumption that jury followed courts instruction). The majority accepts the States argument, citing Colburn in support of its decision. But Colburn itself refutes the States argument.

Colburn was a capital murder case. Id. at 512. While deliberating on punishment issues relevant to whether the defendant would receive a life sentence or the death penalty, the jury sent a note to the trial court asking if the defendant would be eligible for parole if he received a life sentence. Id. at 513, 519. Because Texas law forbids consideration of parole, the trial court answered by instructing the jurors that the law prohibited them from considering parole. Id. On appeal, the defendant contended that the trial court erred in giving the instruction because it indirectly informed the jury that he was eligible for parole. Id. The defendant further contended that the jurys note showed that the jury considered parole. Id. at 519–20. Reasoning that the trial courts instruction correctly stated the law and did not imply that the defendant could be eligible for parole, the Court held that the trial court did not err in instructing the jury on the law. Id. at 520. The Court further held that there was no evidence rebutting the presumption that the jury did as it was instructed. Id. The sole potential evidence that the jury improperly considered parole consisted of its note to the trial court. Id. As to the note, the Court observed that even if the note indicated the jury had considered parole at a preliminary point, the trial court then instructed the jury not to do so, and there was no evidence the jury disobeyed. Id.

But a note from the jury asking about parole ordinarily supports a strong inference that the jury improperly considered parole. Smith v. State, 830 S.W.2d 926, 928 (Tex. Crim. App. 1991) (per curiam). The note in Colburn did not do so only because the trial courts subsequent instruction negated this ordinary inference. See 966 S.W.2d at 519–20. That is, Colburn is a case in which the trial court correctly remedied a problem evidenced by a jury note with an instruction to the jury. Id.

In sum, Colburn supports Harriss position. There, the Court discounted any evidentiary value the jurys note might possess because the trial court responded with an instruction, which the reviewing court presumed the jury heeded. Here, in contrast, the trial court refused to answer the jurys question. The jurys unanswered question rebuts the presumption that the jury understood and followed the law as set forth in the charge. In reality, the State asks us to apply a very different presumption: a presumption the jury correctly answered its own question. That presumption would improperly place the jury in the position of deciding the applicable law, rather than applying the law given by the court. See DeLay v. State, 410 S.W.3d 902, 915 (Tex. App.—Austin 2013) (jurys unanswered questions about law improperly left it to decide what law required), affd, 465 S.W.3d 232 (Tex. Crim. App. 2014).

The State also argues the trial court could not answer the jurys question without improperly commenting on the weight of the evidence by drawing the jurys attention to particular evidence and implicitly endorsing Harriss claim of self-defense. The majority accepts the States argument. The law is to the contrary.

The jury asked if the trial courts presumption-of-reasonableness instruction meant that Harris could not claim self-defense if he was engaged in criminal activity when he used deadly force. This question is a legal one, the applicable law is straightforward, and the trial court could have correctly answered with a simple “no.” That answer would not implicitly endorse either sides theory of the case.

Assuming for arguments sake that a simple “no” could have somehow been suggestive, it still would not have been an improper comment on the weight of the evidence. This is so for two reasons, neither of which the State acknowledges.

First, the jurys question concerned an instruction on a presumption. When a presumption exists, the trial court necessarily calls specific evidence to the jurys attention in the charge. Bartlett v. State, 270 S.W.3d 147, 151 (Tex. Crim. App. 2008). Doing so is not an improper comment on the weight of this evidence. Id.; see also Walters v. State, 247 S.W.3d 204, 211–12 & n.35 (Tex. Crim. App. 2007) (noting that statutory presumption of reasonableness in particular calls specific evidence to jurys attention and that instructing on presumption is therefore proper). For the same reason, the trial court would not have been improperly commenting on the weight of the evidence by answering the jurys question about this instruction.

Second, it was the jury who singled out the specific evidence at issue—engaging in criminal activity—by asking the question that it did. Had the trial court answered with a correct and neutral statement describing the applicable law, it would not have been making an improper comment on the evidences weight. Lucio, 353 S.W.3d at 876–77. As the Court of Criminal Appeals has held, trial courts can provide instructions of this nature in response to jury questions asked during deliberations even when including such an instruction in the original charge would have constituted an improper comment on the weight of the evidence. Id.

2. The trial courts refusal to answer the jurys question was harmful.

The trial courts refusal to answer the jurys question left the jury on its own to make sense of the law governing self-defense, which was the pivotal disputed issue at trial. That Harris fatally shot Valentine was undisputed. The crux of the trial was whether Harris was justified in doing so. The parties hotly contested this issue.

There was conflicting evidence about the circumstances of the shooting to be sure. But substantial evidence supported Harriss claim of self-defense. To wit:

Wilson, who was one of only two testifying eyewitnesses to the shooting, stated that Valentine arrived armed and paranoid. Wilson also testified that Valentine physically accosted Harris when Harris tried to depart. The second eyewitness, Massey, likewise testified that Valentine accosted Harris as Harris tried to leave.

According to Wilson, in the ensuing confrontation, both men reached for their pistols virtually simultaneously. Wilson thought Harris had acted in self-defense.

It is undisputed that Valentine was physically imposing due to his stature. He was just under six feet tall, weighed around 300 pounds, and had a large build.

It is also undisputed that both Valentine and Harris fired their pistols. The bullets and shell casings recovered show that each man fired his pistol just once.

Text messages show that Valentines confederate, Massey, referred to the drug deal as a lick. Massey conceded one possible meaning of this term is robbery. That is how Templeton, one of the investigating detectives, understood the term.

Wood, the medical examiner, conceded it was possible based on the evidence that Valentine had been engaged in a physical struggle when he was fatally shot. She testified that it was very unlikely Valentine fired his pistol after having been shot due to the nature of his injury, which most likely incapacitated him immediately.

In sum, while there is contrary evidence as well, substantial evidence exists that raises and supports the possibility that Harris shot Valentine in self-defense.

The States closing argument underscores the pivotal role Harriss self-defense claim played at trial. The States argument also shows that the context in which Harris claimed to act in self-defense—an aborted drug deal—loomed large.

The State began with a question: “When two guys take guns to a drug deal and one ends up dead, what does that make the other one?” According to the State, it made Harris a murderer. The State downplayed Valentines initiation of the physical confrontation, arguing this did not justify Harriss use of deadly force. Throughout its closing argument, the State repeatedly emphasized that Harris shot Valentine in the back of the head as a fact that made self-defense improbable.

The State also repeatedly emphasized the criminal context in which Harris resorted to deadly force. The State asserted that the jury ultimately did not need to know anything other than that Harris shot Valentine in the back of the head during a drug deal to find Harris guilty, arguing: “If that was all we had, if this had been a transaction just between people that fled or were left behind or we didnt have any eyewitnesses, would you have any trouble saying the person who shot Valentine in the back of the head that day was the murderer? I dont think you would.”

And the State went further, arguing Harriss purported belief that deadly force was necessary was unreasonable because he was engaged in criminal activity. The State maintained that Harriss resort to deadly force was unreasonable precisely because Harris was involved in a drug deal when he shot Valentine, asserting:

[I]t is only self-defense if the person reasonably believed the force used was immediately necessary. So what makes a person reasonable[?] You might say to yourself, these guys were involved in a drug deal, theres nothing reasonable about it. Theyre committing crimes, theyre doing wrong, theyre not reasonable people to start with. So a reasonable person wouldnt find themselves in that situation.

Nor was this an isolated remark. For example, the State later asked, “Were talking about a situation where weve got individuals coming into a criminal enterprise, a criminal interaction, they both are bringing guns, so what do they expect to happen?” Still later, the State argued: “[W]eve got two people going into a situation to do a drug transaction.” The State returned to this topic—the criminal nature of the whole episode—over and over again, stressing that there was “no question” Harris was “engaged in criminal activity” when he shot Valentine in the back of the head.

That is the context in which the jury posed its question. Expressing confusion about the presumption-of-reasonableness instruction, the jury asked: “[D]oes the admitted commission of a crime, sale of a controlled substance, negate the basis of a claim of self-defense?” This question went to the heart of Harriss self-defense claim, and the trial courts refusal to answer made it possible for the jury to reject Harriss claim on the basis that his own criminal activity barred self-defense, which is contrary to the law. See Rogers, 550 S.W.3d at 193; Barrios, 389 S.W.3d at 393.

Thus, the trial courts refusal to dispel the jurys confusion about whether criminal activity categorically negated self-defense was calculated to harm Harriss rights. Indeed, the trial courts refusal to answer the jurys question vitally affected Harriss principal defensive theory. That is enough to satisfy the more demanding egregious-error standard that applies when a party does not timely object. See Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (error is egregious if it affects very basis of case, deprives defendant of valuable right, or vitally affects defensive theory); Reeves, 420 S.W.3d at 816 (egregious harm is “high and difficult standard” and some harm is “less-stringent standard”). When harm is egregious, of course, there necessarily is some harm. See Reeves, 420 S.W.3d at 816.

In its motion for en banc reconsideration, the State argues that the trial courts refusal to answer the jurys question about self-defense, even if erroneous, did not harm Harris because the jury was also instructed on necessity and rejected it as well. The State reasons that a jury that rejects a defense of necessity necessarily would reject self-defense too, making any error in the self-defense instructions harmless.

In many cases, a jurys rejection of a necessity defense might signal that the jury likewise would have rejected self-defense in any event, making any arguable error associated with a self-defense instruction harmless. See, e.g., Barrios, 389 S.W.3d at 395–98 (trial court erred in failing to instruct jury on defense of third person but its error was harmless because it instructed jury on defense of necessity, which jury rejected, and these defenses are very similar). But in this case? No.

The defense of necessity, like self-defense, turns on the reasonableness of a defendants conduct under the circumstances. Under the defense of necessity, a defendants conduct is justified if, among other things, he reasonably believed his conduct was immediately necessary to avoid imminent harm. Penal § 9.22(1); see also Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010) (stating that justification defenses, like necessity and self-defense, require that defendant reasonably believe his conduct is immediately necessary to avoid greater harm).

Hence, the States closing arguments as to how Harriss criminal conduct affected the reasonableness of his resort to self-defense applied with equal force to his necessity defense. As quoted above, the State argued that a reasonable person would not have been involved in a drug deal in the first place. According to the State, Harris was not a reasonable person precisely because he was committing a crime.

The jurys question about the presumption of reasonableness concerned the impact that the defendants commission of a crime—specifically, the sale of prescription cough syrup—had on his claim of self-defense. Given that the jury expressed confusion about the law with respect to reasonableness in the context of self-defense, we can have little assurance that the jury was not also confused with respect to reasonableness in the context of the defense of necessity. As the State itself suggests, the reasonableness inquiry for both defenses is very much alike.

This is why, contrary to the States argument, Barrios is inapposite on the issue of harm. In that case, the trial court instructed the jury on the defense of necessity but refused to instruct the jury on defense of a third person. Barrios, 389 S.W.3d at 392, 395–98. The court of appeals held that though the trial court had erred in refusing to instruct the jury on defense of a third person, the error was harmless because the trial court had included a necessity instruction, which required virtually the same showing of reasonableness as defense of a third person. Id. at 397–98. Because the jury rejected necessity, it stood to reason that the jury would have rejected defense of a third person had the trial court included this defense. Id.

In contrast, the trial court in this case included instructions on both self-defense and necessity. The jury was confused about the law concerning reasonableness with respect to the former defense, but the trial court refused to answer the jurys question when it asked for clarification. Because both self-defense and necessity require virtually the same showing as to reasonableness, it is likely that the jurys confusion also affected its consideration of the defense of necessity. On this record, unlike the one in Barrios, one cannot say the trial courts necessity instruction rendered any harm associated with the charge error merely theoretical.

Moreover, the record shows that neither the State nor the defense emphasized necessity during closing arguments. Indeed, that defense was barely mentioned in closing by either side. Self-defense, not necessity, was the overwhelming focus of the parties’ closing arguments to the jury. Necessity was essentially an afterthought.

CONCLUSION

To fulfill its role, the jury must understand the applicable law. The record shows the jury did not understand the law on a pivotal issue: whether Harris killed Valentine in self-defense. The jury made its lack of understanding plain in its question to the trial court. But the trial court refused to answer the question, which left the jury to decide for itself what the applicable law required. Thus, we cannot have any confidence that the jury correctly understood the law when it rejected Harriss claim of self-defense and found him guilty of murder. Under these circumstances, Harris received a jury trial in form but not in substance. I respectfully dissent from the majoritys judgment affirming Harriss conviction.

FOOTNOTES

. See Tex. Penal Code § 19.02(b).

. Such codeine-based cough syrup is used to make the recreational drug beverage “lean” or “purple drank.”

. Wilsons testified that Valentine was roughly six feet tall and almost 300 pounds.

. Appellant did not object to the submission of the presumption-of-reasonableness charge at the charge conference, though he did object to the prosecutions reference to it during voir dire. However, a defendant cannot preserve charge error during jury selection. See Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. App. 1996) (noting that to preserve charge error, defendant must object to charge or request submission of particular instruction or question). Thus, appellants objection to the submission of the presumption-of-reasonableness charged is waived. See Sanchez v. State, 209 S.W.3d 117, 120–21 (Tex. Crim. App. 2006) (holding that errors subject to procedural default may not be remedied by appellate court as unassigned error unless error was preserved).

. Appellant argues that he was committing the offense of felon in possession of a firearm and therefore would not have been entitled to the submission of the presumption of reasonableness. However, no evidence of appellants prior felony conviction was introduced until the punishment phase. The jury would not have known that appellant was a felon in possession of a firearm during the guilt/innocence phase.

Sherry Radack, Chief Justice

En Banc reconsideration was requested. Tex. R. App. P. 49.7.

A majority of the justices of the Court voted in favor of reconsidering the case en banc.

The en banc court consists of Chief Justice Radack and Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.

Chief Justice Radack, writing for the majority of the en banc court, joined by Justices Kelly, Landau, Hightower, Countiss, Rivas-Molloy, and Guerra.

Justice Goodman, dissenting.

Justice Farris, dissenting.

HARRIS v. STATE (2022)

Authorities cited

Opinion · public domain