Demekayla Daquis Durden v. the State of Texas ( 2022 )

Motion for Rehearing Denied; Motion for En Banc Reconsideration Dismissed as
Moot; and Supplemental Opinion on Rehearing filed February 24, 2022.
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
SUPPLEMENTAL OPINION AND DENIAL OF REHEARING
The State filed a motion for rehearing, and in its first issue challenged this
court’s conclusion that the record contained evidence to merit inclusion of a
deadly-force self-defense instruction. Subsequently, in connection with that
argument, the State filed a supplemental brief spotlighting a recent Court of
Criminal Appeals charge-error case, Lozano v. State.1 The State declares Lozano
1
Lozano v. State, PD-1319-19, 2021 WL 4695809 (Tex. Crim. App. Oct. 6, 2021), reh'g denied
“so on-point as to be controlling.” The State contends “the evidence of appellant’s
state of mind is conceptually the same as the evidence in Lozano” and argues “just
like Lozano, it does not offer an insight into the defendant’s subjective state of
mind.” We supplement our original opinion to address this argument.
In Lozano v. State, at the close of Mr. Lozano’s murder trial, the trial court
included deadly-force self-defense instructions which contained “general duty to
retreat” instructions.2 Lozano v. State, PD-1319-19, 2021 WL 4695809, at *2.
Lozano secured a judgment from the El Paso court of appeals reversing his murder
conviction based on the unobjected-to erroneous inclusion of the “general duty to
retreat” instructions. Lozano v. State, 08-17-00251-CR, 2019 WL 5616975, at *15
(Tex. App.—El Paso Oct. 31, 2019), rev'd, PD-1319-19, 2021 WL 4695809 (Tex.
Crim. App. Oct. 6, 2021). The Court of Criminal appeals reversed, finding the
error harmless because Lozano was not entitled to the self-defense instruction.
Lozano v. State, PD-1319-19, 2021 WL 4695809, at *8. In its harm analysis, the
Court of Criminal Appeals addressed a problem it perceived in the El Paso court’s
application of the deadly-force self-defense statute:
[W]e do not agree that satisfaction of the “ordinary and prudent
person” obviates the need for evidence to show that a defendant
actually believed that the use of deadly force was immediately
necessary.
Id. at * 6. Filling this gap in the El Paso court’s analysis, the Court of Criminal
Appeals detailed the relevant evidence on this point in the light most favorable to
Lozano, and then analyzed that evidence. It recited that Lozano was sitting in the
driver’s seat of his truck in a parking lot brandishing a gun after a man, Jorge,
(Jan. 12, 2022).
2
As the Court of Criminal Appeals explained in Lozano, since 2011 it has deemed such
“general duty to retreat” instructions erroneous and an improper comment on the weight of the
evidence. Id. at *2, citing Morales v. State, 357 S.W.3d 1, 6 (Tex. Crim. App. 2011).
2
threw a full can of beer into his truck, that Jorge then ran around and punched
Lozano through the open window, and that Lozano then shot Jorge three times.
Immediately after setting these facts, the Lozano court remarked:
Appellant never spoke during the encounter or about the altercation
following the encounter, and there is no evidence about Appellant's
demeanor that is favorable to him.
Id., at *7. Even though there was evidence sufficient to establish the objective
prong (or the “ordinary and prudent person” standard), the court was left to
speculate about the defendant’s state of mind about those same facts and events. Id.
The court explained the fact that “Jorge ran around the truck and punched [Lozano]
through the open driver's side window” does not alone explain whether Lozano
actually believed he needed to use deadly force. Id. (“It might be that Appellant
believed that he was justified in using deadly force against Jorge, but no evidence
supports that conclusion.”) The Lozano court concluded the record lacked any
evidence to support the subjective-belief element of his self-defense, the
conclusion that Mr. Lozano believed that the use of deadly force was immediately
necessary. Id. In the absence of such evidence, because Mr. Lozano was not
entitled to any self-defense instruction, the error of including the instruction, even
with the erroneous “general duty to retreat” language, was harmless under an
egregious harm analysis.
The issue in this case is similar to the issue in Lozano, but the facts born by
the evidence relevant to analyzing that issue are not conceptually the same, not
comparable, and not analogous. Moreover, this court’s opinion did not by-pass the
subjective a state of mind analysis. As we noted in the opinion, the record includes
facts about what appellant said to Travis on the night of the murder concerning her
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encounter with Paul, and Travis’s testimony about her demeanor.3 The Lozano
court specifically remarked that similar evidence was not in its record. The facts
viewed in a light most favorable to appellant include appellant’s remarks about her
encounter with Paul—that he tried to rape her, and her demeanor as evidence that
she actually believed that the use of deadly force was immediately necessary to
thwart a sexual assault.
The State’s motion for rehearing is denied and dismisses the State's motion
for en banc reconsideration as moot without prejudice to filing a new motion for
rehearing or for en banc reconsideration in light of this supplemental opinion.
/s/ Randy Wilson
Justice
Panel consists of Justices Zimmerer, Poissant, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
3
The opinion states: “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.’).”
4