Demekayla Daquis Durden v. the State of Texas ( 2021 )

Reversed and Remanded and Opinion filed May 27, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00388-CR
DEMEKAYLA DAQUIS DURDEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1491520
OPINION
In seven issues, appellant Demekayla Durden challenges her murder
conviction that resulted in a 35-year prison sentence. She asks that we render an
acquittal for insufficient evidence, or alternatively, that we remand for a new trial
based on charge error or jury misconduct. The record contains undisputed
evidence that appellant delivered the complainant’s mortal wounds, and legally
sufficient evidence that appellant intended to inflict those wounds. In this regard,
the jury was free to discredit the hearsay statement that complainant was trying to
rape appellant. Unlike the jury, the court in charging the jury was not free to
discredit that testimony. With respect to the charge error, she complains of the
trial court’s refusal to correct the application paragraphs in the self-defense portion
of the charge, “sexual assault” or “aggravated sexual assault”, rather than murder.
Guided by two drastically different standards of review applicable to the
respective issues, we overrule appellant’s sufficiency challenge, but sustain her
charge-error challenge. We reverse the conviction and remand for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
Since 1958, Carlotta Alexander and her brother Paul Alexander, called home
the house at 8754 Cowart Street in the Pleasantville neighborhood in Houston
(Alexander House). They continued living there together after their mother passed.
Carlotta and another sister described Paul as generous to a fault, thoughtful,
considerate, very family-oriented.1
Appellant and Travis Florence also lived in Pleasantville, at 8703 Pattibob,
just over a quarter mile from the Alexander House.
On the night of December 9, 2015, Travis observed Paul sitting lifeless in
his own living room. Travis came upon Paul after his sometimes-live-in girlfriend,
appellant, called for Travis to meet her between the Alexander House and the
house he sometimes shared with appellant. Travis says that when he encountered
appellant in between the houses she was wearing a T-shirt with “[a] lot of blood”
on it, and was “kind of nervous,” “in shock.” Travis reports that at that point
appellant told him that Paul had “tried to rape her and so she killed him.”2
1
Among other descriptions of his character, Paul’s sisters described accounts where Paul
would drive them to work, learned how to clean lights on tractor trailers and would assist at the
local truck stop to help truck drivers see the road.
2
Although his answers to the attorney’s questions produced several varied iterations of
2
Prompted by his disbelief with all or some part of appellant’s account, Travis
agreed to walk with appellant to the Alexander House. It was then that Travis saw
the complainant Paul Alexander dead on the couch. Neither appellant nor Travis
reported Paul’s death to authorities that night.
At 3:10 am on December 10, 2015, Carlotta came home to the Alexander
House to find the porch light off, blood on the couch, and a burned curtain laying
on the bathroom covered in soot and soaking wet; Paul and his car missing. She
called their sister, Anne Balthazar, to come over. While waiting for Anne, Carlotta
turned on the porch light, which illuminated for Ann when she arrived to the
house, blood in Paul’s parking spot and blood-trails from the parking spot to house.
Subsequently, Anne and Carlotta were unsuccessful in locating him through calls
to area hospitals, so they called 9-1-1.
Roughly three hours after Carlotta arrived home, Houston Police
Department (HPD) patrol officers responded to the sister’s missing person report.
Patrol officer Zane Brumley observed the pool of blood leading from the driveway
into the home to the front door. Brumley followed the trail of blood into the home
and discovered more blood in the house, including blood on the living-room couch,
and found the living room (but generally no other rooms) in a state of disarray.
Tthe patrol officers contacted homicide division.
Brumely assisted in securing the scene after the homicide investigators
arrived. In the course of securing the entire house, Brumely noted that only items
in the living area appeared to be disturbed, and that it appeared that a struggle may
appellant’s statement, it appears that the first statement appellant told Travis was that Paul had
“tried to rape her.” In most instances he described her characterization of Paul’s act as an
attempt, that Paul tried to rape her, but he refused to agree that appellant made the statement that
she was ‘trying to get Paul off her’ or that she used such words as ‘defending’ herself, or ‘acting
in self-defense.’ In one instance Travis states, “What she told me, the man tried to – the man
rape her, and she killed the man.”
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have occurred in the living room.
Another HPD patrol officer, Scott Dalton, responded to the call and after
observing the scene, headed to a sludge pit on the 1300 block of Maxine to look for
the vehicle; he knew from patrolling the area for years this area was frequently
used as a dumping site. Dalton located Paul’s car and called for backup. Officer
Dalton and other officers found Paul’s lifeless body in the backseat.
Forensic analyst Kelly Anders arrived at the sludge pit and collected DNA
evidence from complainant’s body. Other investigators collected DNA evidence at
the Alexander house, including items found in the house, such as gloves and brass
knuckles.
The next day statements were taken from appellant, Travis, and appellant’s
cousin, Jaworski Durden. Based on the review of the crime scene, the body, and
these statements, the HPD investigators decided to charge appellant with murder.
Jaworski, like Travis, would later testify at trial that appellant had beckoned him
on the night of the murder and that he had seen appellant on the night of the
murder wearing a shirt with blood stains. Investigators collected buccal swabs
from appellant, Jaworski and Travis.
A later medical examination conducted by Dr. Morna Gonsoulin, assistant
medical examiner at the Harris County Instituted of Forensic Science, revealed that
Paul’s body had nineteen sharp force injuries, including strikes to the head, neck,
chest, abdomen and upper extremities, once piercing the right internal jugular vein.
Gonsoulin determined the wounds to Paul’s body were consistent with those
inflicted by a knife or other unknown sharp object. Dr. Jason Wiersema, the
Director of Forensic Anthropology and Emergency Management at the Harris
County Institute of Forensic Sciences, reviewed the evidence collected, and
explained that the injuries were consistent with injuries inflicted by a knife,
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including a kitchen knife.
Appellant was indicted for murder by intentionally or knowingly causing the
death of Paul Alexander with a knife or sharp object, and alternatively, for
unlawfully intending to cause serious bodily injury to Paul Alexander and causing
his death by intentionally and knowingly stabbing him with a knife or sharp object.
Appellant pleaded not guilty.
Although appellant did not testify and presented no evidence in her case-in-
chief, throughout the trial appellant’s counsel conveyed a singular theory of his
client’s case as an act of self-defense to prevent Alexander from raping her.
During voir dire, he asked jurors if they could apply the law of self-defense as
applied to an attempted rape and acquit appellant if they determined she killed Paul
to prevent him from raping her. In opening statement, he promised the following
evidence and testimony—
She says when she went to Paul’s house, the two of them sat; and he
was going to get some fruit and cut up some fruit and come back out.
And he was calling her sugar baby and speaking with her and that he
had his penis out of his zipper, and he wanted her to suck his penis.
And she said, no, Paul, that’s not happening. I’m not going to do it.
And she says it smelled real bad.
And she said Paul put the knife on the table and sat down next to her
and started to come on to her, started to grab her and feel on her. And
she said no multiple times; and he wouldn’t stop, that he grabbed her
arms and that she grabbed the knife off of the kitchen table and they
struggled with the knife. They struggled with the knife in that area
near the sofa, near where the coffee table was that the knife was on.
They struggled, and the coffee table flipped over; and then she
stabbed him multiple times and just doesn’t remember. But she was
trying to get him to stop, trying to get him off of her. She knew and
thought rape was about to happen because she said no, and he
continued and pressed on.
So, immediately after this happened, Miss Durden, in a situation she
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had never been in before, calls Travis Sullivan (sic), someone she
knows. And the first thing she tells Travis is that, he tried to rape me
and I was trying to get him off of me.
Although this particular account was not borne out in the trial evidence,
Travis testified that appellant told him that Paul had tried to rape her, so she killed
him. Forensic investigators confirmed that appellant’s DNA could not be excluded
from one of Paul’s fingers and his back pocket and agreed that Paul’s zipper was
half-way down. The medical examiner also testified that Paul was a heavy drinker,
a social drinker, and that her examination revealed his blood-alcohol level was
“.36”.
The charge included extensive instructions on self-defense, but the
application paragraphs read as if the appellant asserted self-defense to protect
herself from Paul committing a murder rather than sexual assault or aggravated
sexual assault. Appellant’s counsel objected and the judge denied the objection:
MS. CROWELL: Our next and final objection is on Page 13 of the jury
charge, the final paragraph that starts with, If you find from the
evidence beyond a reasonable doubt that at the time and place in
question the defendant did not reasonably believe that she was in
danger of death or serious bodily injury or the imminent commission
of murder by Paul Alexander. And we would object to the fact that
this is inconsistent with the presumption charge, which says that the
defendant can use deadly force if she is faced with an attempted
sexual assault. So, we are concerned that this is going to confuse the
jury about what their job is, about what the law is on this issue and
will, in turn, deny our client due process of law.
MR. DAVIS: And, Judge, just to add, we think it should say, to
prevent the commission of the sexual assault or attempted sexual
assault, which is in the statute, saying a person has a right to use self-
defense in those circumstances. This limits the circumstances in which
a person can use self-defense to just murder or imminent commission
of murder, and the statute covers more than just murder. So, we say
the way it’s written right now, it’s a comment on the evidence, Judge.
The charge is a comment on the evidence and denies our client due
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process by not properly instructing the jury on the law.
THE COURT: Okay. Well, thank you very much. And your request is
denied. And as mentioned to the parties earlier, I think the self-
defense statute sometimes can be very confusing to the jury. So, it’s
this Court’s hope that both sides will either break it down and make
the law simplistic to them -- and I want the record to reflect that
indeed the statute and this charge, because it does charge the statute,
does contain the exception with regards to aggravated kidnapping,
murder, sexual assault, aggravated sexual assault, robbery or
aggravated robbery.
And let the record further reflect that upon voir dire, Mr. Davis’
presentation to the jury on voir dire, it was -- I think he did a very
good job in educating the jury with respect to the exception of sexual
assault. So, is there anything else?
In closing, appellant’s counsel continued to argue the self-defense theory,
and suggested that the self-defense theory also negated the intent element of the
murder offense, explaining that by stabbing Paul her intention was not to murder
Paul, but to merely get Paul off of her. The state noted in closing that it had not
presented much evidence of appellant’s motive, and supplied a theory that
appellant was trying to rob Paul, in part based on evidence that lotto tickets were
seen found on the living room floor and appellant’s DNA evidence could not be
excluded from Paul’s back pocket.
The jury found appellant guilty as charged and assessed punishment at
thirty-five years’ confinement.
II. ISSUES AND ANALYSIS
Appellant raises seven issues: a duo of sufficiency-of-the-evidence
complaints, one preserved charge-error complaint, two unpreserved charge-error
complaints, and one jury misconduct complaint. The State raises one cross-
complaint pertaining to the court’s refusal to permit certain commitment questions
in voir dire. We first address the issues that could afford appellant the greatest
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appellate relief (e.g., her sufficiency-of-the-evidence complaints), and then move
on to the remaining complaints. After addressing her preserved-charge error
question and remanding for a new trial we proceed to the State’s cross-issue.
A. Sufficiency of the Evidence
In her first issue appellant complains that the state failed to present proof of
the essential elements of the charged offense—murder with a deadly weapon. In
her second issue, she complains the state failed to rebut her affirmative defense of
self-defense.
1. Standard of Review
In evaluating a challenge to the sufficiency of the evidence supporting a
criminal conviction, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The
issue on appeal is not whether we, as a court, believe the State’s evidence or
believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State,
667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury “is the sole judge
of the credibility of the witnesses and of the strength of the evidence.” Fuentes v.
State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to
believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence,
we presume the jury resolved conflicts in favor of the prevailing party. Turro v.
State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.
8
1997).
We measure sufficiency to support a conviction by comparing the evidence
presented at trial to “the elements of the offense as defined by the hypothetically
correct jury charge for the case.” Malik, 953 S.W.2d at 240. A hypothetically
correct jury charge reflects the governing law, the indictment, the State’s burden of
proof and theories of liability, and an adequate description of the offense for the
particular case. Id.
2. Is the evidence sufficient to support the jury’s finding that appellant
intended to cause Paul’s death?
A person commits the offense of murder if she intentionally or knowingly
causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1), (2) (West
2011). Alternatively, she also commits the offense when she intends to cause
serious bodily injury and commits an act clearly dangerous to human life that
causes the death of an individual. Id. at § 19.02(b)(2). Travis’s testimony that
appellant told him that she killed complainant is sufficient proof that appellant
killed complainant.
A person acts with intent with respect to the nature of her conduct or to a
result of her conduct when it is her conscious objective or desire to engage in the
conduct or cause the result. Tex. Penal Code Ann. at § 6.03(a) (West 2011). She
acts knowingly with respect to the nature of her conduct (or to circumstances
surrounding her conduct) when she is aware of the nature of her conduct (or that
the circumstances exist). Id. at § 6.03(b). She acts knowingly with respect to her
conduct when she is aware the conduct is reasonably certain to cause the result. Id.
Intent, being a question of fact, is in the sole purview of the jury. Brown v.
State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). A jury may rely on collective
common sense and common knowledge when determining intent. Ramirez v. State,
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229 S.W.3d 725, 729 (Tex. App.–San Antonio 2007, no pet.). Intent also may be
inferred from the circumstantial evidence surrounding the incident, which includes
acts, words, and conduct of the accused. See Tex. Code Crim. Proc. Ann. art.
38.36(a) (West 2005); Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim.
App.1995).
“Attempts to conceal incriminating evidence, inconsistent statements, and
implausible explanations to the police are probative of wrongful conduct and are
also circumstances of guilt.” See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim.
App. 2004). Based on Travis’s testimony that he saw Paul’s body lifeless in the
living room, observed bloodstains indicating that Paul’s body was dragged into his
car, the fact that Paul’s car, harboring his body, had been taken to the “sludge
pit”— a place known as one where people abandon things, and appellant’s DNA
was not excluded from DNA found on Paul’s body and clothes, a jury could
reasonably infer that appellant was attempting to conceal evidence of wrongful
conduct, thus evidencing her intent. The jury could also infer that appellant
discarded the deadly weapon that matched Paul’s wounds. The jury could further
have inferred intent from appellant’s statement to Travis, her attempts at
concealment, and her failure to contact law enforcement. See id.Finding sufficient evidence that appellant intentionally committed an act
clearly dangerous to Paul’s life which brought about his death, we overrule
appellant’s first issue.
3. Is the evidence sufficient to support the jury’s rejection of appellant’s self-
defense theory?
In resolving the sufficiency-of-the-evidence issue, we look not to whether
the State presented evidence that refuted evidence of self-defense, but rather we
determine whether, after viewing all the evidence in the light most favorable to the
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prosecution, any rational trier of fact would have found the essential elements of
murder beyond a reasonable doubt and also would have found against appellant on
the self-defense issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d
910, 914 (Tex. Crim. App. 1991); Hernandez v. State, 309 S.W.3d 661, 665 (Tex.
App.–Houston [14th Dist.] 2010, pet. ref’d). A person is justified in using deadly
force against another when and to the degree the person reasonably believes the
deadly force is immediately necessary to prevent the other’s imminent commission
of sexual assault. Tex. Penal Code § 9.32(a)(2)(B) (West 2011).
To the extent that appellant relies on her charge error challenge in the
context of the hypothetically correct jury charge, we conclude even a proper self-
defense charge does not conclusively establish each of the elements of her self-
defense. The jury was free to disbelieve appellant’s statement to Travis, or was
free to interpret from his testimony – “that he thought she was lying” – that Travis
believed appellant when she said she killed Paul, but not that Paul was sexually
assaulting her. See Dearborn v. State, 420 S.W.3d 366, 374 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (reviewing the sufficiency of evidence to support
aggravated assault where justification defense was raised by appellant’s statement
admitted into evidence which sets out his self-defense “does not conclusively
prove a claim of self-defense.”).
We conclude from the evidence that a rational jury could have concluded
beyond a reasonable doubt that appellant intentionally or knowingly caused
appellant’s death using a knife or sharp object, and was not justified in using
deadly force. See id.; see also Fountain v. State, 604 S.W.3d 578, 582 (Tex.
App.—Houston [14th Dist.] 2020, no pet.).
B. Charge Error
In her third issue, appellant argues that the court erred in failing to instruct
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the jury regarding the right to use deadly force in self-defense to prevent the
other’s imminent commission of sexual assault. The State does not dispute that
there was error in the form of the court’s charge on self-defense, but contends that
any error was harmless because appellant was not entitled to the instruction. As a
threshold issue, we first address the State’s argument.
The State argues if appellant was not entitled to the self-defense instruction,
any error with respect to its form would be harmless. Relying on Hughes v. State,
the State suggests the inclusion of the instruction for self-defense of murder as
opposed to self-defense for sexual assault could not have contributed to the jury’s
guilty finding. See Hughes v. State, 897 S.W.2d 285, 301 (Tex. Crim. App. 1994)
(“the inclusion of a mitigating evidence instruction which permitted the jury to
answer no to any of the special issues could not have contributed to the jury’s
affirmative findings on the issues”). Presuming such a rule would apply to this
case, we disagree with the conclusion that appellant was not entitled to the
instruction.
As discussed above, in the previous section, the evidence supporting the
self-defense to prevent commission of a sexual assault was not conclusive; nor was
it overwhelming. The question here is whether there was some evidence to support
the self-defense instruction. Regardless of the strength or credibility of the
evidence, a defendant is entitled to an instruction on any defensive issue that is
raised by the evidence. Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App.
2020) citing Hamel, 916 S.W.2d at 493. A defensive issue is raised by the evidence
if there is sufficient evidence to support a rational jury finding as to each element
of the defense. Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App.
2007)(“[A] defense is supported (or raised) by the evidence if there is some
evidence, from any source, on each element of the defense that, if believed by the
12
jury, would support a rational inference that that element is true.”). We view the
evidence in the light most favorable to the defendant’s requested defensive
instruction. Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017) (citing
Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006)). A trial court errs in
refusing a self-defense instruction if there is some evidence, viewed in the light
most favorable to the defendant, that will support its elements. Gamino, 537
S.W.3d at 510.
A person is justified in using deadly force against another when and to the
degree the person reasonably believes the deadly force is immediately necessary to
prevent the other’s imminent commission of sexual assault. Tex. Penal Code §
9.32(a)(2)(B) (West 2011).3 In light of the very limited evidence demonstrating
any other motive appellant had to stab Paul, a jury may have reasonably concluded
that Paul was taking steps (beyond mere preparation) to sexually assault appellant,
crediting appellant’s statement that appellant was trying to rape her, the existence
of appellant’s DNA on Paul’s fingertip, a permissible inference from the
circumstantial evidence that Paul began to undress himself based on his partially
unzipped pants. Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim. App. 1981)
(finding evidence of attempted sexual assault where appellant grabbed the
complainant, attempted to remove her clothing and exposed his penis).
The State contends that the trial court lacked evidence of the appellant’s
“state of mind”. Citing the 1984 Court of Criminal Appeals Smith v. State case,
the State insists that record must contain evidence of appellant’s state of mind at
the time of the act of purported self-defense. 676 S.W.2d 584, 587 (Tex. Crim.
3
A person commits an offense of attempted sexual assault if, with specific intent to
commit a sexual assault, he does an act amounting to more than mere preparation that tends but
fails to effect commission of the sexual assault. § 15.01(a). A person commits sexual assault
among other ways, by causing the penetration of the mouth of another person by the sexual
organ of the actor, without that person’s consent. § 22.011(a)(1)(B).
13
App. 1984). The state then follows with a string of parenthetical case citations to
unpublished opinions from our sister courts involving scenarios where a defendant
was not entitled to a self-defense instruction without evidence of his state of mind.
These cases do not affect our analysis because our record does contains some,
albeit not particularly strong, evidence that appellant reasonably believed deadly
force was immediately necessary to prevent Paul’s imminent commission of sexual
assault, and because the cases cited are factually distinguishable from our case in
ways material to the analysis. Some of the cases involve facts germane to the
defendant’s state of mind that are remarkably incompatible with fear or
apprehension of their respective complaints.4 In some of the cases, the only
evidence of the defendant’s state of mind reveals the act as retaliation rather than
self-defense.5 There is no evidence that appellant was acting in retaliation. If
appellant did act in retaliation, we cannot see where this was revealed in the
record.
Moreover, contrary to the State’s argument, we conclude the trial record
contains evidence of appellant’s state of mind applicable to the analysis—her
4
Arevalo v. State, 01-19-00085-CR, 2020 WL 3968671, at *2 (Tex. App.—Houston [1st
Dist.] Mar. 24, 2020, pet. ref’d) (observing that there was some evidence that appellant
(appealing domestic assault conviction) had been scratched by complaint but concluding “no
evidence showed appellant had a reasonable belief that his use of force was immediately
necessary to protect himself.”); Garcia v. State, 05-12-01693-CR, 2014 WL 1022348, at *7
(Tex. App.—Dallas Mar. 13, 2014, pet. ref’d) (finding defendant was not entitled self-defense
instruction where defendant effectively denied fear or apprehension of unarmed complainant
charging at him).
5
Ivy v. State, 07-15-00023-CR, 2016 WL 6092524, at *3 (Tex. App.—Amarillo Oct. 17,
2016, no pet.) (noting defendant’s actions—begging complainant not to leave and following
complainant to the home that complaint took refuge from defendant—as ‘not the actions of one
who is in fear of an assault by the other person”); Reynolds v. State, 07-11-00500-CR, 2012 WL
6621317, at *4 (Tex. App.—Amarillo Dec. 19, 2012, no pet.) (court explained that appellant’s
own statement that complaint’s act of kicking him caused him to “snap” and strike her as an act
of retaliation not self-defense); Daisy v. State, 05-01-01791-CR, 2002 WL 31528723, at *2 (Tex.
App.—Dallas Nov. 15, 2002, no pet.) (same).
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reasonable belief that her use of force was immediately necessary to prevent Paul
from raping her. See Tex. Penal Code § 9.32(a)(2)(B). Her statement to Travis,
‘Paul tried to rape me’, is evidence that she believed Paul tried to rape her. By
saying “Paul tried to rape me”, she was effectively revealing that during their
encounter, she did not consent to have sex with Paul and believed that Paul knew
that and was undeterred by her lack of consent. Appellant called Travis for help.
Travis testified that appellant was “startled” or “nervous” or “in shock” when he
encountered appellant, and on one occasion when asked about it, Travis testified
that the first thing she told him was that Paul tried to rape her, and this was the
basis for her mental state. (Q. And she seemed startled, true? A. A little bit, like,
the man tried to rape me.”). A jury could reasonably conclude from Travis’s
testimony, that appellant’s behavior was specifically associated with the attempted
rape (rather than the murder) and fairly consider appellant’s behavior and
statements to Travis as a continuation of and a reflection of her state of mind in
regard to Paul’s alleged attempted sexual assault. See Smith v. State, 676 S.W.2d
584, 587 (Tex. Crim. App. 1984) (considering as relevant to the analysis
defendant’s statement about the facts of the offense to a third party immediately
after the occurrence).
Beyond her statement to Travis, appellant pointed to roughly ten other facts
in the trial record as evidence offered supporting the self-defense instruction. The
State addressed these facts in its brief, making valid points with respect to the
relevance and speculative nature of some facts, and contending that some of these
“bare fact[s]” do not alone create an inference of self-defense. While it is true
enough that none of these facts are conclusive on the issue and are susceptible of
alternate interpretations, appellant has pointed to facts that nonetheless aid in
establishing the circumstances that make self-defense plausible: DNA on Paul’s
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fingertips could be consistent with Paul grabbing appellant; Paul’s blood alcohol
level indicating that Paul was under the influence of alcohol lends to the possibility
of unrestrained or uncharacteristic behavior, testimony noting that Paul’s pants
were partially unzipped could indicate preparation to sexually assault; that Paul
was much larger than appellant and in good shape for man of his age could
explain the reasonableness of the degree of force used to prevent a sexual assault.
In summary, appellant was entitled to a self-defense instruction. Here, we
consider if there was harmful error in the form of that instruction.
1. Standard of Review
In a criminal case, we review complaints of jury charge error in two steps.
Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). First, we determine
whether error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex.
Crim. App. 2005). Second, we review the record to determine whether sufficient
harm was caused by the error to require reversal of the conviction. Id. The degree
of harm necessary for reversal depends on whether the appellant preserved the
error by objecting to the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984) (op. on reh’g).
2. The court’s erroneous jury charge.
The purpose of the trial court’s jury charge is to instruct the jurors on all of
the law applicable to the case. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim.
App. 2012); Tex. Code Crim. Proc. art. 36.14. The application paragraph is the
portion of the jury charge that applies the pertinent penal law, abstract definitions,
and general legal principles to the particular facts and the indictment allegations.
Vasquez, 389 S.W.3d at 366. Therefore, a jury charge with an application
paragraph that incorrectly applies the pertinent penal law to the facts of a given
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case is erroneous. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015);
Mendez v. State, 545 S.W.3d 548, 553–54 (Tex. Crim. App. 2018)(“we have found
jury-charge error where a trial court fails to apply its abstract charge on self-
defense to the particular facts of the case at hand”).
Although the court included an abstract statement of law tracking the
entirety of the ‘deadly force in defense of a person’ statute (Tex. Penal Code §
9.32), listing all of the offenses a defendant might be justified in preventing,
(“aggravated kidnapping, murder, sexual assault, aggravated sexual assault,
robbery, or aggravated robbery”), that section only included a definition for the
offense of murder, and consistently, the application paragraphs narrowed the jury’s
consideration only to the prevention of murder—a theory not supported by the
evidence at trial. Moreover, the court’s charge excluded from the jury’s
consideration the theory for which there was some evidence: self-defense to the
prevention of a sexual assault. Because the court plainly failed to apply the
relevant penal law to the facts of this case, the charge is erroneous. See Mendez v.
State, 545 S.W.3d 548, 553–54 (Tex. Crim. App. 2018) (“we have found jury-
charge error where a trial court fails to apply its abstract charge on self-defense to
the particular facts of the case at hand”).
3. Does the record show that appellant suffered “some harm” from the court’s
charge error?
Because appellant properly preserved error in the charge with regard to the
application paragraph for self-defense, a reversal is mandated if a review of the
record yields a finding that appellant suffered “some harm.” Reeves, 420 S.W.3d at
816 (citing Almanza, 686 S.W.2d at 171). The actual degree of harm must be
assessed in light of “(1) the jury charge as a whole, (2) the arguments of counsel,
(3) the entirety of the evidence, and (4) other relevant factors present in the
17
record.” Id.
a. Entire Charge
In determining whether a charge error is egregiously harmful, we first
consider whether a reasonable jury referring to other parts of the charge would find
a correct statement of the law or would instead be confused or misled. Uddin v.
State, 503 S.W.3d 710, 717 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
Looking to the entire seventeen-page charge, twelve pages are devoted to the issue
of self-defense. The first pages of the charge describing the murder-with-a-deadly-
weapon offense are straight-forward.
The subsequent twelve pages on self-defense include two separate sections
(each containing abstract law and application paragraphs). The first section
contains abstract instructions for self-defense to protect the actor against the use or
attempted use of unlawful deadly force followed by application paragraphs for that
manner of self-defense. This section generally tracks section 9.32(a)(1) & (2)(A).
The first section is not particularly problematic, but it is confusing that this section
is repeated entirely in the next section. Reeves v. State, 420 S.W.3d 812, 818 (Tex.
Crim. App. 2013).
The second set of self-defense instructions addresses occurrences when a
defendant reasonably believes deadly force is immediately necessary “to protect
herself against the other person’s use or attempted use of unlawful deadly force” or
“to prevent the other’s imminent commission of aggravated kidnapping, murder,
sexual assault, aggravated sexual assault, robbery, or aggravated robbery.” This
section generally tracks section 9.32(a)(1), (2)(A), (2)(B), and (b). But this list can
only provide cold comfort to appellant—while in theory a jury could see that a
self-defense for sexual assault was legally authorized, it is doubtful that the jury
disregarded the application paragraph that precluded her defense and was so
18
empowered by the abstract law tracking the statute that it disregarded the
application paragraphs that effectively excluded that theory of self-defense from
the case. This is because just further down in the abstract section, the court
includes a definition of “murder”.6 Yet there is no definition for “sexual assault”,
“aggravated sexual assault” or any of the other listed offenses for which one may
be justified in preventing with deadly force. Thus, before reaching the application
paragraphs, the jury was already being lead astray.
The complete 222-word and 111-word application paragraphs7 read as
follows:
Therefore, if you find from the evidence beyond a reasonable doubt
that the defendant, Demekala Daquis Durden, did stab Paul Alexander
with a deadly weapon, as alleged, but you further find from the
evidence, as viewed from the standpoint of the defendant at the time,
that from the words or conduct, or both of Paul Alexander it
reasonably appeared to the defendant that her life or person was in
danger and there was created in her mind a reasonable expectation or
fear of death or serious bodily injury from the use of unlawful deadly
force at the hands of Paul Alexander, or a reasonable expectation or
fear of the imminent commission of the offense of murder at the
hands of Paul Alexander, and that acting under such apprehension
and reasonably believing that the use of deadly force on her part was
immediately necessary to protect herself against Paul Alexander’s use
or attempted use of unlawful deadly force or Paul Alexander’s
imminent commission of murder, she stabbed Paul Alexander, then
you should acquit the defendant on the grounds of self-defense; or if
you have a reasonable doubt as to whether or not the defendant was
6
Unlike the charged offense, the description of murder does not include language or an
instruction relating to the use of a ‘deadly weapon’.
7
In Reeves, the Criminal Court of Appeals, suggested that 156 and 125 words were
excessive. (“That first application paragraph contains 156 words in one sentence. The second
paragraph contains 125 words in one sentence. Neither is comprehensible.”). For those that tally,
the total words of the first one-sentence paragraph in this case exceed the total words in the first
paragraph in Reeves, and the total words between the both one-sentence application paragraphs
in this case exceed the total of both paragraphs in Reeves significantly.
19
acting in self-defense on said occasion and under the circumstances,
then you should give the defendant the benefit of that doubt and say
by your verdict, not guilty.
If you find from the evidence beyond a reasonable doubt that at the
time and place in question the defendant did not reasonably believe
that she was in danger of death or serious bodily injury or the
imminent commission of murder by Paul Alexander, or that the
defendant, under the circumstances as viewed by her from her
standpoint at the time, did not reasonably believe that the degree of
force actually used by her was immediately necessary to protect
herself against Paul Alexander’s use or attempted use of unlawful
deadly force or against Paul Alexander’s imminent commission of
murder, then you should find against the defendant on the issue of
self-defense.
Putting aside the primary issue, that the paragraphs include the wrong
offense, the wording is not concise; it is duplicative and confusing. Other than the
language bolded above, these two paragraphs repeat the application paragraphs in
the first self-defense section.
Apart from the application paragraphs, the structure of the abstract
paragraphs leads to the same conclusion: that the jury could only consider evidence
of Paul’s attempt to murder appellant (which did not exist), and not consider
evidence of sexual assault, for which there was no legal definition and which is
excluded from the application paragraph. The abstract paragraph tracking the
penal code lists sexual assault and aggravated sexual assault, but in the paragraphs
that follow defining relevant terms, the only legal definition provided is the
definition for murder as committed by the complainant. These defects in the
structure of the abstract legal portion of the charge magnified the harm in the
application paragraphs. See Elizondo v. State, 487 S.W.3d 185, 203 (Tex. Crim.
App. 2016) (noting that physical location of erroneous provocation paragraph
magnified harm); see also Reeves v. State, 420 S.W.3d at 819.
20
Moreover, because the definition of “murder” has no place in the self-
defense instruction in this case, and because “murder” also happens to be the
offense with which appellant was charged, a juror might confuse and rely upon the
description of “murder” in the self-defense paragraph, which is not accompanied
by a “deadly weapon” instruction, as providing a sufficient description of the
charged offense.8 This effectively would permit the jury to convict appellant for
the charged offense without making a deadly weapon finding. Uddin v. State, 503
S.W.3d at 718 citing Cada v. State, 334 S.W.3d 766, 774, 776 (Tex. Crim. App.
2011) (holding due process requires State to prove beyond reasonable doubt every
element of offense alleged, and it cannot substitute alternative element it did not
allege). Similarly, the charge only authorizes deadly force against Paul in defense
of Paul’s deadly and murderous conduct, not for committing or attempting to
commit sexual assault. Sexual assault and aggravated sexual assault are
distinguishable from both murder and deadly force in that the sexual assault
offenses do not incorporate deadly force. Thus, the charge as submitted effectively
elevates the defense’s burden of proof to include an additional element not
required by statute: to prove that Paul was engaged in deadly conduct.
In addition to the misapplication of the law to the facts of the case, the
duplicity and lack of definitions applicable to sexual assault compound rather than
correct the charge error. Reeves v. State, 420 S.W.3d at 820. This factor suggests
harm resulted from the erroneous charge.
b. Trial Evidence
Although there was sufficient evidence to convict appellant, this is not a rare
8
Note the verdict form reads: “We, the Jury, find the defendant, Demekala Daquis
Durden, guilty of murder, as charged in (the indictment.)”
21
case with conclusive evidence on each element, nor evidence that was so
overwhelming that the erroneous self-defense instruction was harmless. Reeves v.
State, 420 S.W.3d at 820. The fact that there is significant evidence showing
commission of the act does not ameliorate the charge error. Reeves v. State, 420
S.W.3d at 820. The entirety of the evidence weighs in favor of a finding of some
harm. Elizondo v. State, 487 S.W.3d 185, 203 (Tex. Crim. App. 2016) (finding
some harm in charge error even when there was evidence inconsistent with
appellant’s self-defense theory).
c. Jury Arguments
Appellant relied on self-defense as her exclusive defensive theory at trial. In
closing, the State attempted to characterize appellant’s strategy as composed of
varied theories, including a theory that appellant was entirely uninvolved with the
murder. But the record does not lead us to that conclusion.
This is not a case where the State amplified the charge error by calling
attention to it in closing. But nor do we find this case one, as the trial judge may
have suggested in overruling appellant’s charge objection, where the problem
could be resolved through counsel’s discussion of the charge.
During arguments, both sides focused on the self-defense theory of the case
as a defense to prevent Paul’s sexual assault of appellant. To the extent that either
side gained ground in clarifying the charge in closing arguments or appeared to
liberate the jury from the narrowing constraints of the application paragraphs, or
otherwise empowered the jury to consider that an acquittal was available based on
the self-defense theory to prevent sexual assault, the court effectively nullified
these efforts in statements made to the jury before and during closing argument.
Before reading the charge the judge described it as “the law that you must follow
in this case”. During argument in resolving objections to misstatements of the law,
22
the court stated, “I gave you the law, and that’s the law that you shall follow.”
On balance, this factor is neutral, neither showing the error to be harmful or
harmless. See Elizondo v. State, 487 S.W.3d at 209. (finding this factor neutral
when the subject of the error retains a role in argument, but the error itself is not
brought to the front of the jurors’ minds).
d. Other relevant information from the record
The record shows that the charge error resulted in some harm to appellant
because her entire case was based on her theory of self-defense to prevent Paul’s
sexual assault (or aggravated sexual assault) such that this was the only contested
issue and the court’s charge effectively deprived the jurors’ consideration of that
theory, making the rejection of that defense inevitable. See Jordan v. State, 593
S.W.3d 340, 347 (Tex. Crim. App. 2020) (“The record in this case demonstrates
some harm because the only contested issue was self-defense, and the failure of the
self-defense instructions to reference “Royal or others” made rejection of the
defense inevitable.”). Accordingly, we sustain appellant’s challenge in her third
issue.
C. State’s Cross-Complaint
The State may appeal rulings on questions of law when a convicted
defendant appeals. Tex. Code Crim. Pro. art. 44.01(c). Contingent on our reversal
and remand for new trial, the State has asked that we resolve the trial court’s ruling
in voir dire, preventing the State from asking a question it characterizes as a
commitment question.
A commitment question is one that commits a prospective juror to resolve,
or refrain from resolving, an issue a certain way after learning a particular fact.
Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012). For a
23
commitment question to be proper, it must meet two criteria: (1) “one of the
possible answers to that question must give rise to a valid challenge for cause”; and
(2) it “must contain only those facts necessary to test whether a prospective juror is
challengeable for cause.” Standefer v. State, 59 S.W.3d 177, 182 (Tex. Crim. App.
2001). We consider two questions the State sought to ask the venire panel:
[Prosecutor (First Question)]: So, here’s my question to you: If the
defendant made a statement and you knew that statement was made, is
there anybody here that would want or would require me to play that
statement before you could convict?
[Defense counsel]: And, Your Honor, that is just an improper—
The Court: That is sustained, and you better move on.
[Prosecutor (Second Question)]: Okay. Why—if I have proven my
elements beyond a reasonable doubt but there is this statement out
there of the defendant, would anyone increase my burden and make
me play that statement?
[Defense counsel]: Again, Your Honor.
The Court: Do you have an objection?
[Defense counsel]: Yes, Your Honor.
The Court: That’s sustained. I said to move on.
The State’s burden of proof in a criminal case is to prove each element of the
offense beyond a reasonable doubt. Tex. Penal Code § 2.01. A juror is
challengeable for cause if the juror, while believing the State has proven all the
elements beyond a reasonable doubt, would require more evidence before
convicting. Lee v. State, 206 S.W.3d 620, 624 (Tex. Crim. App. 2006).
The first question is improper as a commitment question on its face, because
it does not, without more, give rise to a valid challenge for cause. The question did
not seek to determine whether the prospective jurors could convict appellant in the
absence of some evidence even if the State otherwise proved the elements of the
24
offense beyond a reasonable doubt. See Sandoval v. State, 571 S.W.3d 392, 399
(Tex. App.—Houston [1st Dist.] 2019, no pet.). The second question does not
contain the same flaw.
Yet like the first question, the second question contains another problem in
the context of the record and briefing in this case—uncertainty concerning the
status of the purported “statement.” What exactly are we talking about? Was the
statement legally obtained, available along with a sponsoring witness for the State
to use at its strategic discretion to play (or not play) at trial? Could the State
reasonably anticipate the appellant’s counsel to make vague references to the
statement while asserting her right not to testify?
Our record does not make clear the status of the statements.9 A motion to
suppress was filed relating to the statement, but we have no record of a hearing or
ruling on the motion. If there was an agreement concerning the terms of the
statement’s use, that is not in our record either. Needless to say, a trial judge, after
making the appropriate evidentiary rulings, and aware of the status of the
statements is better served to make this determination.
Because the State has not, in its briefing, made the status of this statement
clear, we cannot say whether the questions contain only those facts necessary to
test whether a prospective juror is subject to challenge for cause. That is, there are
circumstances, where any reference to such a statement would be improper, and
thus beyond what is necessary to challenge a prospective juror for cause. But we
can imagine in some circumstances, such a reference would be permissible.
Thus, having jurisdiction to consider the argument, we overrule the State’s
9
We do however acknowledge that during closing arguments, counsel for both sides
utilized the fact that appellant’s statement that was not presented to the jury as a ‘skunk in the
jury box’, noting the existence of the statement and making vague references as to its
significance.
25
cross complaint.
III. CONCLUSION
The trial court’s judgment is reversed, and the case is remanded for a new
trial.
/s/ Randy Wilson
Justice
Panel consists of Justices Zimmerer, Poissant, and Wilson.
Publish — Tex. R. App. P. 47.2(b).
26