Opinion issued September 15, 2026.
In the
Court of Appeals
for the
First District of Texas
NO. 01-24-00748-CR
CLINT FELDER, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Case No. 18-CR-1411
MEMORANDUM OPINION
A jury found appellant Clint Felder guilty of murder and sentenced him to 60
years’ imprisonment. TEX. PENAL CODE § 19.02.
On appeal, appellant complains that (1) the evidence is insufficient to support
the jury’s guilty verdict because no rational jury could have rejected his self-defense theory, (2) the trial court abused its discretion by admitting into evidence copies of
two search warrants, (3) the State improperly commented on appellant’s silence, and
(4) the trial court failed to instruct the jury on the law applicable to protection of
one’s property.
We overrule each of appellant’s issues. First, a rational jury could have found
that appellant did not reasonably believe that deadly force was immediately
necessary to protect himself and, thus, rejected his self-defense theory. Second, any
error in the trial court’s admission of two search warrants was harmless because the
statements in the warrants to which appellant objected—namely, that a murder was
being investigated—were adduced through witness testimony without objection.
Third, the State did not impermissibly comment on appellant’s silence by eliciting
testimony that appellant refused to speak with a law enforcement officer when
appellant was neither under arrest nor in custody at the time of his refusal. Fourth,
because complainant Amy Brown died as a result of deadly force—a gunshot to the
head—the trial court did not err by refusing to instruct the jury on the use of nondeadly force to protect one’s property.
Background
Years before her death, complainant Amy Brown began a romantic
relationship with appellant Clint Felder, and the couple had children together. At
2
some point, appellant and complainant separated, and appellant began staying in the
home of Roy Dixon at 3510 Palm in Texas City, Texas.
On April 27, 2018, complainant told Dixon in a text message, “I hate you,”
and threatened to kill everyone inside his home, which at the time included Dixon,
appellant, Gregory Guillory, Ashley Moore, Moore’s son, and Dixon’s three
children. There is no evidence regarding complainant’s awareness of who was
present in Dixon’s home or why she sent that text message to Dixon. After receiving
the text message, Dixon left the house for a pre-planned trip to Austin.
That evening, at approximately 9:00 or 10:00 p.m., complainant arrived at
Dixon’s home. Moore and two of Dixon’s children—all of whom were present that
night—testified that complainant arrived angry and upset. According to Moore,
complainant “kicked open the door,” waking Moore and her son. Moore testified
that appellant and Guillory told complainant to leave, but complainant “kept coming
back in. . . . [Appellant and Guillory] finally like pulled her by her feet and pulled
her out.” Moore further testified that complainant appeared drunk, and “[h]er eyes
were red like she had been crying.”
Approximately 10 minutes after being dragged out of the house, complainant
smashed a window in appellant’s room and re-entered the home.1 Complainant’s
1
Moore initially testified that complainant re-entered the home through the front
door. However, later in her testimony, Moore stated that she did not know how
complainant re-entered the home.
3
arm was bleeding, and Moore helped clean the blood from complainant’s arm.
Complainant and appellant then began an extended argument.
Around midnight, appellant left the house at 3510 Palm—apparently with
complainant still inside—and drove to see a new house purchased by his friend,
Ryan Friloux. Friloux testified that appellant did not stay “too long,” and Friloux
drove appellant back to Dixon’s house, leaving appellant’s car behind at Friloux’s
house. Appellant wanted to return to Dixon’s house to see if complainant “was
asleep yet because she was drunk, tripping.” Friloux waited in his truck while
appellant went inside Dixon’s house “for a little while.” Appellant returned to the
vehicle with clothes and began loading them into Friloux’s truck. After loading
Friloux’s truck, appellant went back inside and Friloux continued waiting in his
vehicle. Friloux did not testify why appellant loaded clothes into Friloux’s truck or
why Friloux waited on appellant.
Moore testified that, at around 2:00 a.m., after appellant returned from
Friloux’s house, Moore stepped out of the bedroom in which she was sleeping and
saw complainant and appellant. According to Moore, complainant was sitting behind
a chair and asked Moore to call 9-1-1. Moore testified that neither appellant nor
4
complainant appeared to be injured, and Moore did not see either of them holding a
gun.2
Moore could not find her phone, so she went across the street with her son to
a neighbor’s house to ask to borrow a phone. The neighbor did not answer the door,
but Moore saw a truck idling in the street and asked the driver—Friloux—to take
her and her son to her father’s home.3 Minutes later, before Moore and her son got
in Friloux’s truck, John ran out of the house, panicking.
John then went back inside the house to retrieve his shoes while Moore and
her son climbed into the truck. Appellant and complainant were in John’s room, and
appellant told John to “get out.” At trial, John acknowledged that he had told police
officers in an interview the day after complainant’s death that complainant had said,
“Don’t shoot me,” but he did not remember making the statement. After grabbing
2
Two of Dixon’s minor children, “John” and “Amanda,” to whom we refer by
fictitious names to protect their identities, testified that they saw complainant
wielding a knife. According to John, complainant entered the home with a knife.
Later that night, he saw complainant holding the knife and appellant bleeding from
the back of his head. Amanda testified that she saw complainant retrieve a knife
from the kitchen and throw it at appellant, hitting the back of his head. Four days
after complainant’s death, police recovered from Dixon’s home several knives,
including one that appellant’s counsel argued at trial complainant had thrown at
appellant. Berenger Chan, a forensic scientist, analyzed swabs taken from each of
the knives and compared any genetic material extracted from those swabs against a
known sample from appellant. For each of the knives, either Chan could not obtain
an interpretable genetic profile from the knife swab or his analysis excluded
appellant as a contributor the genetic profile.
3
Neither that night nor at trial did Moore know the identity of the driver, but it is
clear from her and Friloux’s testimony that Friloux was the driver.
5
his shoes, John unsuccessfully attempted to wake his sisters, but the two girls had
locked the bedroom door and did not answer John’s knocking. John then left the
house again to join Moore and her son in Friloux’s truck.
According to Moore, John, while running out of the house, said, “Aunt
Ashley, did you hear that? . . . I think Uncle Clint [appellant] just shot Amy
[complainant].” Although John did not remember asking Moore whether she heard
anything, he remembered hearing a gunshot while leaving the house.4 John never
saw appellant or complainant with a gun. Moore did not hear a gunshot. At some
point, although the timing is unclear, Moore heard complainant scream “3510 Palm,”
the street address of Roy Dixon’s home, and “[b]oth my arms are broke.”
After John rejoined Moore and her son outside in Friloux’s truck, appellant
walked out of the house. Moore did not see any blood on appellant, and he appeared
to be walking normally. According to Moore, Friloux told appellant, “I’m not taking
you nowhere. I’m taking them to where she needs to go.” Appellant walked back
inside, and Friloux drove Moore, Moore’s son, and John to Moore’s father’s home.
Friloux denied seeing appellant exit the house.
4
It is unclear from Moore’s testimony whether John made these statements the first
or second time he left the house. Although John did not remember making the
statements, he remembered hearing a gunshot when he left the house the second
time, i.e., after running back inside to grab his shoes.
6
At 2:14 a.m., David Heckard, an officer with the Texas City Police
Department (TCPD), responded to a 9-1-1 call from 3510 Palm. In a recording of
that call, which was played for the jury, a feminine-sounding voice5 states, “3510
Palm. . . . He hit my head. My head is bleeding. . . . I’m at 3510 Palm. Please hurry.”
The caller screams, followed by abrupt silence. When Officer Heckard arrived at the
home, he saw no cars in the driveway. A fellow officer who arrived ahead of Officer
Heckard was banging on the house’s windows and had already knocked on the door.
No one answered. Officer Heckard testified that he did not know whether exigent
circumstances justified entering the home, so he and the other officer left without
entering the home.
At 3:44 a.m., Officer Heckard returned to 3510 Palm in response to a second
9-1-1 call. In a recording of that call, which was also played for the jury, a masculinesounding voice6 states, “Help me. . . . [unintelligible] shot me.” The caller is then
heard moaning. The caller does not respond to the dispatcher’s questions, and the
dispatcher says to someone in the room with her, “No, it’s the same phone number
that called earlier, too.” She then asks the caller, “Are you at 3510 Palm . . . ?” No
5
Although the State argued at trial that the caller was complainant, no witness
identified the caller.
6
No witness identified the caller.
7
response is audible from the recording. The line remains connected, and police
officers are heard entering the home.
Officer Heckard and other TCPD officers discovered appellant injured and
face down on the floor and complainant unresponsive. The officers searched the
home and backyard for any other individuals and discovered no one else in or near
the home. Appellant had a wound on the back of his head and was flown to a hospital
by air ambulance. An autopsy of complainant revealed that she had two gunshot
wounds—possibly the result of a single shot—to her head and right arm. The
medical examiner testified that complainant died instantly from the gunshot to the
head.
Sufficiency of Evidence
In his first issue, appellant challenges the sufficiency of the evidence to
support the jury’s rejection of his self-defense claim. He argues that the State failed
to prove beyond a reasonable doubt that he did not act in self-defense.
A. Standard of Review
When a criminal defendant challenges the sufficiency of the evidence to
support his conviction, “we consider all the evidence in the light most favorable to
the verdict and determine whether, based on that evidence and reasonable inferences
therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt.” Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim.
8
App. 2018) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007));
see Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (holding that
appellate courts do not apply separate factual-sufficiency review when defendant
challenges sufficiency of evidence to support conviction). This standard “recognizes
the trier of fact’s role as the sole judge of the weight and credibility of the evidence
after drawing reasonable inferences from the evidence.” Braughton, 569 S.W.3d at
608 (quoting Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011)).
Once a criminal defendant produces some evidence that would support a
rational finding in his favor on self-defense, the State then bears the burden of
persuasion to disprove the issue of self-defense. Id. Notably, the State’s burden is
not one of production. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).
The State need not produce additional evidence, but it must prove its case beyond a
reasonable doubt. Rankin v. State, 617 S.W.3d 169, 182 (Tex. App.—Houston [1st
Dist.] 2020, pet. ref’d) (citing Saxton, 804 S.W.2d at 913). Thus, when we review
the sufficiency of the evidence to support an appellant’s conviction and the jury’s
implied rejection of self-defense, “we determine whether after viewing all the
evidence in the light most favorable to the prosecution, any rational trier of fact
would have found the essential elements of the offense beyond a reasonable doubt
and also would have found against appellant on the self-defense issue beyond a
reasonable doubt.” Braughton, 569 S.W.3d at 609 (citation modified).
9
We must defer to the jury’s determination of the witnesses’ credibility and the
weight to be given to the evidence. Mitchell v. State, 590 S.W.3d 597, 604 (Tex.
App.—Houston [1st Dist.] 2019, no pet.). If the defensive evidence is “merely
consistent with the physical evidence at the scene” that supports the defendant’s
conviction of the offense, we may not find the evidence insufficient and must instead
defer to the credibility determinations of the jury, which is “free to accept or reject
the defensive evidence.” Saxton, 804 S.W.2d at 914.
B. Analysis
A person commits murder if he “intentionally or knowingly causes the death
of an individual” or “intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an individual.” See TEX.
PENAL CODE § 19.02(b)(1)-(2). However, “a person is justified in using force against
another when and to the degree the actor reasonably believes the force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.” Id. § 9.31(a). Deadly force in self-defense is justified when a
person reasonably believes the force is immediately necessary to protect the actor
against the other’s use or attempted use of unlawful deadly force or to prevent the
other’s imminent commission of murder, among other crimes. Id. § 9.32(a).
Complainant died instantly from a gunshot wound to the head. Appellant and
complainant had been arguing throughout the night and, when police arrived at
10
Dixon’s home, TCPD officers found appellant and complainant together. The only
other individuals in the home at or near the time of complainant’s death were: three
of Dixon’s children, all under the age of 10; Moore; and Moore’s two-year-old son.
Appellant argues that he shot the complainant in self-defense. At trial,
appellant’s counsel advanced the following theory: There were two gunshots, not
one, and complainant fired the first shot at appellant. In self-defense, appellant then
fired the second shot, which struck and instantly killed complainant. In advancing
this theory, appellant’s counsel relied on the following evidence:
• Due to the position of complainant’s gunshot wounds on her head and arm,
the medical examiner could not rule out the possibility that the wounds
resulted from a single, continuous shot.
• The gunshot wound to complainant’s head was instantly fatal.
• An expert for the defense, Michael Bell, testified that, in his opinion, a
wound on the back of appellant’s head was characteristic of a bullet
entrance wound, that a cap found at the scene had a hole that was
characteristic of a bullet hole, and that appellant’s, but not complainant’s,
injuries were consistent with appellant’s wearing the cap.
• A witness for the State, Detective Donald Ray Cox, testified that the hole
in the cap was “consistent with a bullet hole.”
• The medical examiner agreed that, if complainant was wearing the cap, she
“probably” was not wearing it “right on her forehead.”
However, the evidence is also consistent with the State’s theory that appellant was
not shot. Police officers recovered only one fired bullet at the scene. No witness
observed appellant being shot, and appellant did not testify. The cap was not found
11
on either appellant’s or complainant’s head and, although bloodied, was not
submitted for forensic genetics testing.
Even if the jury believed that complainant shot appellant, the jury was not
compelled to accept appellant’s self-defense theory. The State needed to disprove
only one element of self-defense to negate the justification. Rodriguez v. State, 524
S.W.3d 389, 395 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); see Harrod v.
State, 203 S.W.3d 622, 627-28 (Tex. App.—Dallas 2006, no pet.) (holding that “jury
is not required to agree unanimously on the specific component of self-defense on
which it is not persuaded”). To use deadly force in self-defense, the defendant must
reasonably believe that the use of deadly force is “immediately necessary.” TEX.
PENAL CODE § 9.32(a)(2). The use of deadly force is immediately necessary to
defend oneself if that force is “needed at that moment,” i.e., “when a split second
decision is required.” Henley v. State, 493 S.W.3d 77, 89-90 (Tex. Crim. App. 2016)
(citation modified).
The jury heard a recording of a 9-1-1 call from 2:14 a.m. on the morning of
the complainant’s death in which a feminine-sounding voice states, “3510 Palm. . . .
He hit my head. My head is bleeding. . . . I’m at 3510 Palm. Please hurry.” The caller
screams, followed by abrupt silence. The jury could have reasonably inferred that
complainant was the caller based on the caller’s statement “I’m at 3510 Palm” and
witness testimony regarding individuals who were present at the home that night. Cf.
12
Jones v. State, 458 S.W.3d 625, 630 (Tex. App.—Houston [1st Dist.] 2015, pet.
ref’d) (noting that State may establish actor’s identity by inferences). Counsel for
both the State and appellant suggested to the jury that complainant was the caller
and that her screams were ended by an instantly fatal gunshot wound to the head. On
the recording, the caller states that she is injured and is pleading for help.
Additionally, even crediting appellant’s argument that complainant injured
appellant—whether with a knife, gun, or both—there is no direct evidence regarding
the timing of appellant’s injuries or whether complainant’s use or threat of deadly
force was likely to recur. See Smith v. State, 638 S.W.2d 208, 210 (Tex. App.—Fort
Worth 1982, no pet.) (holding, as matter of law, that defendant was not justified in
using deadly force, despite being struck by victim, where victim made no further
advances after defendant drew gun). Someone, presumably complainant, called
9-1-1 and pled for help at 2:14 a.m. Roughly one and a half hours later, at 3:44 a.m.,
a man, presumably appellant, called 9-1-1 and reported that he had been shot. From
the gap between the two calls, the jury could have reasonably inferred that appellant
shot complainant first, not the other way around, to the extent that the jury believed
that complainant shot appellant at all. Based on this evidence, including the gap
between the two 9-1-1 calls, the jury could have rationally believed that appellant’s
use of deadly force against complainant was not immediately necessary and rejected
appellant’s self-defense theory on that basis. See Braughton, 569 S.W.3d at 611-12
13
(concluding that sufficient evidence supported jury’s implicit rejection of selfdefense where there was contested testimony regarding whether victim had reached
for weapon in motorcycle saddlebag).
We overrule appellant’s first issue.
Admission of Search Warrants
In his second and third issues, appellant complains that the trial court
erroneously admitted into evidence copies of two search warrants. He complains that
the warrants are irrelevant to any claim or defense at issue, that the warrants include
inadmissible hearsay, and that the warrants’ probative value, if any, is substantially
outweighed by the danger of unfair prejudice. The State responds that (1) appellant’s
unfair-prejudice argument was not made at trial and, therefore, is not preserved; and
(2) the statements in the search warrants are not hearsay because they were not
offered in evidence to provide the truth of the matter asserted in the statements.7
A. Background
During the testimony of Detective Jeff Winstead, the State offered and the
trial court admitted, over objection, (1) a copy of a warrant to search Roy Dixon’s
home and seize specified items within it (the Home Warrant) and (2) a copy of a
warrant to search and seize appellant’s cellphone records (the Phone Records
7
The State concedes that appellant’s hearsay complaint on appeal comports with his
objection at trial.
14
Warrant). In the version admitted as an exhibit at trial, neither warrant includes a
copy of the affidavit in support of the warrant. However, each warrant specifies the
places to be searched and the items that are authorized to be seized. Additionally,
and relevant to appellant’s complaints on appeal, each warrant includes statements
related to the charges against appellant. The Home Warrant authorizes any sheriff or
peace officer of Galveston County, Texas, to “take custody of the said items or
articles that may have been used during the crime.” (Emphasis added.) The Phone
Records Warrant states, “Crime Being Investigated: Murder.”
B. Analysis
“Recitals contained in a search warrant and return are hearsay and are not
admissible before the jury for any purpose, and their admission over objection is
error.” Torres v. State, 552 S.W.2d 821, 824 (Tex. Crim. App. 1977); accord
Sanchez v. State, 243 S.W.3d 57, 64 (Tex. App.—Houston [1st Dist.] 2007, pet.
ref’d). Such statements may be admissible if the defendant challenges probable
cause and the jury must decide whether an officer reasonably believed the facts
necessary to establish probable cause. Saldinger v. State, 474 S.W.3d 1, 7 (Tex.
App.—Houston [14th Dist.] 2015, pet. ref’d). A copy of a search warrant may also
be admissible if the defendant denies the existence of a warrant and the warrant’s
existence is relevant to an issue before the jury. Baxter v. State, 66 S.W.3d 494, 498
n.2 (Tex. App.—Austin 2001, pet. ref’d).
15
Neither probable cause nor the existence of the warrant was an issue at trial.
Appellant’s counsel even conceded that Detective Winstead could testify “that they
had a warrant.” At trial, and following appellant’s objection, the State did not offer
any exception to hearsay or explain why the statements were not being offered “to
prove the truth of the matter asserted in the statement.” TEX. R. EVID. 801(d)(2).
Regarding the Home Warrant, the State argued to the trial court that the warrant did
not include hearsay statements because “[i]t’s the court order that gave [Detective
Winstead] legal [sic] right to go in the residence . . . .” As to the Phone Records
Warrant, the State similarly argued, “[I]t doesn’t contain any hearsay statements as
to the crime being investigated.”
Both warrants include out-of-court statements offered to prove the truth of the
matter asserted. The Home Warrant states that a crime occurred, and the Phone
Records Warrant states that a murder is being investigated. The State sought to
establish that Detective Winstead had a “legal right” to enter the home and that
Detective Winstead “has every right to say the nature of the crime that’s being
investigated.” The admission of the warrants was error. Torres, 552 S.W.2d at 824;
Saldinger, 474 S.W.3d at 7.
However, the improper admission of evidence does not warrant reversal
unless the error affected appellant’s substantial rights. TEX. R. APP. P. 44.2(b); see
Saldinger, 474 S.W.3d at 7 (reviewing erroneous admission of search warrant for
16
harm as non-constitutional error). An error affects a criminal defendant’s substantial
rights when “it has a substantial and injurious effect or influence in determining the
jury’s verdict.” Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). The
improper admission of evidence is harmless if the same evidence is presented at trial
without objection, either before or after the complained-of ruling. See Saldinger, 474
S.W.3d at 7 (citing Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998);
Amador v. State, 376 S.W.3d 339, 345 (Tex. App.—Houston [14th Dist.] 2012, pet.
ref’d)).
Here, Detective Winstead testified, without objection, that warrants were
needed for the searches he conducted and that the warrants were for a “homicide
investigation.” Moreover, appellant’s self-defense theory is a “justification” type of
defense that “does not negate any element of the offense.” Shaw v. State, 243 S.W.3d
647, 659 (Tex. Crim. App. 2007); Prior v. State, No. 14-15-00080-CR, 2016 WL
716535, at *2 (Tex. App.—Houston [14th Dist.] Feb. 23, 2016, no pet.) (mem. op.,
not designated for publication) (“An accused must admit to all the elements of a
crime charged before the accused can to rely on a legal justification such as selfdefense.”). “By definition, a justification defense does not rest upon the negation
[of] a specific element of the charged offense, but instead excuses what would
otherwise constitute criminal conduct.” 21 TEX. JUR. 3D Criminal Law: Defenses
§ 98. By raising self-defense, appellant has admitted the essential elements of
17
murder but contends that his criminal conduct is excused. Because appellant relied
on the justification of self-defense and Detective Winstead testified, without
objection, that he was investigating a murder, the erroneous admission of the
warrants did not have a substantial and injurious effect or influence in determining
the jury’s verdict.
We overrule appellant’s second and third issues.
Comment on Appellant’s Silence
In his fourth issue, appellant complains that the trial court erred by denying
his oral motion for a mistrial after the State elicited testimony that commented on
appellant’s silence.8 The State responds that, because appellant was not in custody
at the time of his silence, any comment on his silence did not infringe his rights under
the Fifth Amendment of the Constitution. The State further argues that, even if the
comment was improper, the trial court’s instruction to the jury cured any error.
At trial, Detective Winstead testified that, while appellant was recovering in
the hospital, he tried to contact appellant “[n]umerous times” but appellant
“wouldn’t speak to me, no.” Appellant’s counsel objected and moved for a mistrial.
The trial court denied appellant’s oral motion for a mistrial but instructed the jury as
follows:
8
Appellant also complains that the trial court “erred in overruling the defense
objection.” However, the trial court sustained the objection and gave a curative
instruction to the jury.
18
[T]he fact that the defendant didn’t talk to the officer is not to be taken
by you for any purpose against the defendant, okay. This is just a one,
two, three of the things that occurred during the investigative process;
but because it was mentioned that he didn’t talk to the detective, I’m
taking time to stop and say you can’t hold that against him. You can’t
use that as information that would be negative to him.
Although the Fifth Amendment precludes the State from commenting on a
defendant’s refusal to testify, “[a] defendant’s silence before trial . . . is considerably
less protected . . . .” Salinas v. State, 369 S.W.3d 176, 178 (Tex. Crim. App. 2012),
aff’d, 570 U.S. 178 (2013) (plurality op.). When an individual has not been arrested
or subjected to a custodial interrogation, his “interaction with police officers is not
compelled” and, therefore, “the Fifth Amendment right against compulsory selfincrimination is ‘simply irrelevant to a citizen’s decision to remain silent when he is
under no official compulsion to speak.’” Id. at 179 (quoting Jenkins v. Anderson,
447 U.S. 231, 241 (1980) (Stevens, J., concurring)).
This Court has previously addressed this issue on nearly identical facts. See
Buentello v. State, 512 S.W.3d 508, 520-21 (Tex. App.—Houston [1st Dist.] 2016,
pet. ref’d). In Buentello, during the State’s direct examination, an officer testified
that he attempted to contact the defendant “during the early stage of his investigation
but was unable to speak with him” and that he requested the defendant to give a
statement but “was told that [the defendant] had a lawyer.” Id. at 520. The
defendant’s counsel interrupted the testimony, objected, and obtained an instruction
to the jury to disregard the officer’s answer. Id. The defendant also moved for a
19
mistrial, which was denied. Id. at 520-21. We held that the defendant’s “decision to
remain silent in a pre-arrest encounter does not implicate the Fifth Amendment right
against compulsory self-incrimination” and, thus, no mistrial was required. Id. at
521; see Dobbs v. State, 699 S.W.3d 799, 807 (Tex. App.—Dallas 2024, no pet.)
(noting that, to extent error was preserved, testimony that officer was unsuccessful
in obtaining investigative statement from defendant did not infringe on defendant’s
Fifth Amendment rights).
Similarly, here, when Detective Winstead attempted to contact appellant,
appellant was not in custody or under arrest. He was in the hospital, and there is no
evidence that, while there, he was detained. For example, there is no evidence that
appellant was handcuffed to his bed or that a guard was posted outside his hospital
room. Even if appellant’s injuries prevented him from leaving the hospital, that fact
would not render him “in custody.” See Martinez v. State, 496 S.W.3d 215, 220-21
(Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (holding that defendant was not
“in custody” while being treated at hospital, despite being incapacitated by wounds,
where no restraints were applied by police and guard was not posted); Yarborough
v. State, 178 S.W.3d 895, 901-02 (Tex. App.—Texarkana 2005, pet. ref’d) (same);
Redmond v. State, 30 S.W.3d 692, 697 (Tex. App.—Beaumont 2000, pet. ref’d)
(same). Accordingly, because appellant was not in custody at the time of Detective
Winstead’s questions and was under no compulsion to answer, the Fifth Amendment
20
did not preclude Detective Winstead’s testimony that appellant would not speak with
him, and the trial court did not err by denying appellant’s motion for a mistrial.
We overrule appellant’s fourth issue.
Jury Charge Error
In his fifth and final issue, appellant contends that the trial court erred by
failing to instruct the jury on the law applicable to protection of one’s property by
using deadly or non-deadly force. In response, the State argues that (1) appellant did
not request in the trial court an instruction on the use of deadly force to protect one’s
property; (2) the evidence does not support instructing the jury on the use of nondeadly force to protect one’s property, which is the instruction appellant requested
at trial; and (3) any error is harmless.
A. Background
During the charge conference, appellant requested that the trial court instruct
the jury on the law applicable to protection of one’s property. Specifically,
appellant’s counsel requested an instruction “[u]nder [section] 9.41 [of] the penal
code, protection of one’s own property.” Section 9.41(a) of the Texas Penal Code
justifies a defendant’s “using force against another when and to the degree the actor
reasonably believes the force is immediately necessary” to protect real or personal
property under specified circumstances. TEX. PENAL CODE § 9.41(a).
21
Appellant’s counsel clarified that he was not seeking an instruction under
section 9.42 of the Texas Penal Code, which justifies the use of deadly force to
protect property when certain conditions are met. TEX. PENAL CODE § 9.42.
Appellant’s counsel and the trial court engaged in the following exchange:
[APPELLANT’S COUNSEL]: The instruction will not say he has the
right to use deadly force to protect his property, but it will say that he
has the right to use regular force to protect his property because the
State is going to argue that my client was abusing her and causing these
other injuries.
He has the right to do that, if she is destroying his property. And it’s not
going to say he had the right to kill her because she’s tearing up his
clothes. It’s not going to say that. It’s going to say he had the right to
stop her in —
THE COURT: To beat her up, would that be something he would have
the right to do?
[APPELLANT’S COUNSEL]: I believe so, as long as he’s using
reasonable force.
THE COURT: Could he throw a hammer at her?
[APPELLANT’S COUNSEL]: I believe that would be deadly force. . . .
THE COURT: The problem with this — and I’ve given you the first
instruction [on self-defense], but I’m very want [sic] to give you the
second instruction [on protection of property] because it starts
amounting to a comment on the evidence. And that’s — I don’t want to
do that. . . . So that’s all I’m giving.
[APPELLANT’S COUNSEL]: So that request is denied, just to make
my record?
THE COURT: Yes, sir.
22
Shortly after this exchange, the trial court read the charge to the jury, and
counsel for the State and appellant presented closing arguments. The jury charge did
not include any instruction on the law applicable to protection of one’s property.
B. Standard of Review and Applicable Law
The trial court is “ultimately responsible for the accuracy of the jury charge
and accompanying instructions.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim.
App. 2007). The Texas Code of Criminal Procedure requires that, in a jury trial, the
trial court must “deliver to the jury . . . a written charge distinctly setting forth the
law applicable to the case.” TEX. CODE CRIM. PROC. art. 36.14 (emphasis added).
The trial court’s duty to deliver a charge that correctly sets forth the law applicable
to the case exists independently of any objection made by a criminal defendant. Vega
v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). However, “the law applicable
to the case” does not include “unrequested defensive issues.” Id. Accordingly, when
a criminal defendant fails to timely request an instruction on a defensive issue or
fails to timely object to its exclusion, “he has procedurally defaulted any such
complaint.” Id. When there is a timely objection, reversal is required if the defendant
suffered “some harm” from the error. Id. (citing Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1984)).
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C. Deadly-Force Instruction
We first address appellant’s contention that his request at trial for an
instruction on protection of one’s property encompassed a request for instructions
under both section 9.41 and section 9.42, which justify the use of non-deadly and
deadly force, respectively, to protect one’s property. TEX. PENAL CODE §§ 9.41,
9.42. The State argues that appellant waived any complaint with respect to the trial
court’s exclusion of a deadly-force instruction because appellant did not request such
an instruction in the trial court.
A defendant’s general request for an instruction on “protection of one’s
property,” without more, may be sufficient to encompass a request for an instruction
on the use of deadly force to protect one’s property. See Carmen v. State, 276 S.W.3d
538, 541 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (holding that defendant’s
request for instruction on “self-defense,” in context, was request for instruction on
self-defense by use of deadly force). However, that is not the request that appellant
made. Appellant requested an instruction on “the right to use regular force to protect
his property” and affirmatively disclaimed any request for an instruction on “the
right to use deadly force to protect his property.” (Emphasis added.) The justification
of protection of one’s own property is a defensive issue and, thus, to preserve the
issue for our review, a criminal defendant must object to the trial court’s exclusion
of that instruction. Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007).
24
Because appellant did not request, and affirmatively disclaimed any request for, an
instruction on protection of one’s property by use of deadly force, he has
procedurally defaulted any complaint and failed to preserve it for our review. Id.
D. Non-Deadly-Force Instruction
We next consider whether the trial court erred by refusing to instruct the jury
on protection of one’s property by use of non-deadly force under section 9.41 of the
Texas Penal Code, an instruction that appellant requested. Appellant claims that this
issue was raised by the evidence because complainant “had other injuries besides the
gunshot.”
The Texas Penal Code defines “deadly force,” as used in chapter 9, as “force
that is intended or known by the actor to cause, or in the manner of its use or intended
use is capable of causing, death or serious bodily injury.” TEX. PENAL CODE
§ 9.01(3). In the context of self-defense, the Texas Court of Criminal Appeals has
held that a defendant is not entitled to an instruction on the use of non-deadly force
when there is no evidence that the force used “was not capable of causing death or
serious bodily injury in the manner of its use or intended use.” Ferrel v. State, 55
S.W.3d 586, 592 (Tex. Crim. App. 2001). In Ferrel, the defendant hit the victim
with a beer bottle and, because the victim ultimately died, “the actual blow of the
bottle indisputably caused serious bodily injury” and, therefore, the defendant “by
definition used deadly force.” Id.; see Wood v. State, 271 S.W.3d 329, 337 (Tex.
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App.—San Antonio 2008, pet. ref’d) (holding that, because victim died from injuries
“sustained when [defendant] ran over [victim], [defendant] used deadly force by
definition” and was not entitled to instruction on self-defense using nondeadly
force).
Although appellant’s argument relates to protection of one’s property, not
self-defense, the logic used in the Ferrel decision nonetheless applies. Sections 9.31
and 9.32 justify the use of force in defense of self or others under specific conditions.
Those conditions vary depending on whether the force used is deadly or not.
Compare TEX. PENAL CODE § 9.31(a) (justifying “using force”) with id. § 9.32(a)
(justifying “using deadly force”). The same distinction applies to sections 9.41 and
9.42, which prescribe when the use of force or deadly force is justified to protect
one’s property. Compare id. § 9.41(a) (justifying “using force”) with id. § 9.42
(justifying “using deadly force”). Here, as in Ferrel, the force used against
complainant was by definition deadly force. The undisputed evidence is that
complainant died from a gunshot wound to the head. Accordingly, appellant was not
entitled to an instruction on the use of non-deadly force to protect one’s property.
We overrule appellant’s fifth issue.
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Conclusion
We affirm the trial court’s judgment.
Amparo “Amy” Guerra
Justice
Panel consists of Justices Rivas-Molloy, Guerra, and Gunn.
Do not publish. TEX. R. APP. P. 47.2(b).
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