Robert Lee Thompson v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00084-CR
___________________________
ROBERT LEE THOMPSON, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 271st District Court
Wise County, Texas
Trial Court No. CR19503
Before Gabriel, Kerr, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
A jury found Appellant Robert Lee Thompson guilty of aggravated assault with
a deadly weapon, assessed his punishment at seven years’ confinement, and
recommended probation. See Tex. Penal Code Ann. § 22.02(a)(2). The trial court
suspended the sentence; placed Appellant on community supervision for eight years;
and as a condition of his community supervision, ordered Appellant to serve sixty
days in jail on the weekends. In five issues, Appellant argues that the trial court
abused its discretion by failing to grant a mistrial on allegedly improper jury argument,
erred by allowing a reasonable doubt instruction in the charge and by failing to add
“no duty to retreat” language to the application portion of the charge, and abused its
discretion by admitting two exhibits that allegedly constituted improper impeachment
and that contained hearsay. Because we hold that the trial court did not abuse its
discretion or commit reversible error with regard to any of the five issues raised by
Appellant, we affirm.
II. Background
The events in question took place on a property located in Paradise, Texas.
The record reflects that the property had several “living structures” on it, including a
camper and three mobile homes. The residents of the property included Rhonda
Deering, her brother, her mother, and her boyfriend Douglas Robinson Jr. (who was
referred to as Wayne).
2
During the afternoon on August 23, 2016, Rhonda rode with her cousin Tina
to pick up Appellant (who was Tina’s boyfriend), and the three of them went to a
funeral in Lake Worth. After the funeral, they picked up dinner and then stopped at a
convenience store where Appellant purchased a twelve-pack of Dr. Pepper and some
ice, believing that he could borrow an ice chest from Rhonda. The group then
returned to Rhonda’s camper around 10:30 p.m.
When Rhonda went to retrieve the ice chest, Wayne came out of the outside
bathroom wearing only a pair of shorts and boxers and told Appellant that “he’s not
getting . . . nothing that belongs to [me]” and that he needed to leave.1 Appellant
continued to wait for the ice chest. Wayne then retrieved a twelve-gauge shotgun
from the camper and fired a round into the burn pit in the front yard. Wayne
attempted to scare or intimidate Appellant into leaving even though the shot Wayne
fired was in the opposite direction of Appellant. Appellant “mouthed a few words,”2
and Wayne put the gun back in the camper and returned to the porch unarmed.
At that point, Appellant said to Wayne, “[W]hy don’t you come down here, big
boy[.]” Wayne jumped off the porch, approached Appellant, and attempted to put his
hand on Appellant’s shoulder to escort him to the truck to leave, but they both started
1
Wayne and Appellant had a strained relationship, and Rhonda’s parents had
previously told Appellant that he was not allowed on the property because some
money had gone missing on one occasion when he was present.
Rhonda testified that it did not appear that Appellant was worried about
2
Wayne’s firing the shotgun.
3
fighting and ended up on the ground. Wayne and Appellant had each other in a
headlock, and Wayne kept saying, “[L]et me up,” because Appellant was on top of
Wayne. Appellant said, “[Y]ou’re dead,” or, “[T]oo late, you’re dead.” Appellant had
stabbed Wayne in the abdomen with a knife. Appellant then allowed Wayne to stand
up, and as soon as he did, his intestines came out of his body and fell into his hand.
As Wayne was walking away from Appellant and telling Rhonda that he needed to go
to the emergency room, Appellant stabbed Wayne in the back. Appellant then went
to his truck and left with Tina.
Rhonda started driving Wayne to the hospital and called 911. The dispatcher
told her to stop at a specified intersection, and a medic and the police met her there.
An ambulance transported Wayne the rest of the way to the hospital where he
underwent surgery for his life-threatening injuries.3 At 11:45 that evening, Rhonda
wrote out a statement for the police describing the events that had transpired on the
property.
Two officers—Investigator John Polhemus Jr. and Lieutenant Pat Golden—
met with Appellant after midnight to get his side of the story, which changed several
times. During the State’s case in chief, Investigator Polhemus recounted the various
stories that Appellant had told them. Appellant initially said that he and Wayne were
in a physical fight “that went to the ground” and that when Wayne stood up, it
3
The record revealed that in addition to a small stab wound to his back, Wayne
had sustained two lacerations to the duodenum (upper colon).
4
appeared that he had been stabbed; Appellant claimed that he did not know how
Wayne had been stabbed. Appellant next claimed that Wayne had a knife that was
out and that he had been stabbed while they were struggling on the ground.
Appellant provided another version that was impossible to follow. Appellant then
gave a version in which he said that he had his hand on Wayne’s knife and felt it go
into Wayne’s torso while they were fighting. Throughout the interview, Appellant
maintained that he did not bring the knife with him, but toward the end of the
interview, Appellant admitted that he took a knife with him when he left the scene
and that he threw it into a pasture as he and Tina were driving away. Appellant
initially said that he did not stab Wayne a second time, but Appellant later admitted
that he had stabbed Wayne in the back while Wayne was walking away.
Another officer took pictures of some scrapes on Appellant’s elbows and knees
but did not call for a medic because none of the scrapes were serious or in need of
treatment. Investigator Polhemus opined that the scrapes, as well as the road rash on
Appellant’s elbows and knees, were more consistent with rolling around on the gravel
in the driveway than with defensive injuries (i.e., injuries sustained from trying to
protect himself).
A warrant was ultimately issued, and Appellant was arrested. Investigator
Polhemus testified that Appellant admitted during a post-arrest interview that he
owned the knife at issue and that he had brought it with him on the night when he
stabbed Wayne.
5
At trial, Appellant testified that he had always carried a three-inch Winchester
knife. Appellant testified that on the night in question, Wayne was not acting normal.
Appellant said that he was scared for his life when Wayne came out of the camper
with the shotgun. But Appellant admitted that after Wayne had fired the shotgun and
had put it away, he told Wayne, “[L]et’s settle it like big boys do.” Appellant testified
that Wayne then came and hit him in the back of the head and that he responded by
hitting Wayne. They “went to the ground,” and Appellant jumped on top of Wayne.
Appellant believed that Rhonda had her gun at her side4 and that Wayne was reaching
up toward Rhonda. Appellant testified that he was scared for his life and that he had
“stuck” Wayne. Appellant opined that he had possibly stabbed Wayne twice while
they were rolling around on the ground. Appellant testified that he then let Wayne up
and that he did not stab him again. Appellant said that Wayne “charged back” at him
and that he (Appellant) responded by swinging again. Appellant testified that one or
both of the women announced that Wayne had been stabbed and that was when the
fight ended because Wayne’s “intestines were in his hand.” Appellant and Tina then
left. Appellant said that he threw the knife, which he claimed had no blood on it, out
4
Rhonda testified that she used to carry a nine-millimeter handgun in a holster
on her hip but that she did not have it on her hip on the night in question. Wayne
testified that Rhonda wore her holster with the handgun in it when they went to the
back of the property to shoot, which happened very seldom; Wayne said that Rhonda
did not wear it on a daily basis. Tina and Appellant testified that Rhonda had the gun
in a holster on the night in question.
6
the window of the truck as they drove away because he was scared to death and did
not know what to do.
Appellant explained that he had initially lied to the police about not having
brought the knife with him because he was so scared and had never been interrogated
like that before. Appellant further explained that he did not tell the officers that
Rhonda had a gun on her person on the night in question because he was not asked
that question and because he was terrified of what he had done.
After hearing the above evidence, the jury found Appellant guilty of aggravated
assault with a deadly weapon. This appeal followed.
III. Jury Argument
In his first issue, Appellant argues that the trial court abused its discretion by
failing to grant a mistrial based upon allegedly improper jury argument that occurred
during the guilt-innocence phase.
A. The Complained-of Portion of the Argument
The relevant portion of the State’s rebuttal is as follows:
Can you possibly believe him?
The first lie, I don’t know what happened. I don’t know. We
were rolling around on the ground and got stabbed. Second one, well,
Wayne came at me with a knife[,] and I grabbed his hand. And we were
rolling around on the ground[,] and I guess he got stabbed. Okay. That
doesn’t -- that doesn’t really make sense. Wayne had -- had the knife?
Yeah, that -- Wayne had the knife. Where’s the knife now? I don’t
know. Not until after he was arrested did he finally say it was his knife,
it was his knife.
7
You cannot believe him. You don’t get self-defense when you
take a knife to a fistfight. This isn’t a gunfight. It was not immediately
necessary to protect himself. It’s got to be immediate. That’s the whole
crux. Life is important. Life is sacred.
Now, and -- and -- and I’m not asking you -- you don’t -- you
don’t have to like Wayne. You don’t have to like Rhonda. You don’t
have to like their lifestyle. But you’ve taken an oath, and that is to follow
the law. And the law is clear. He’s not entitled to self-defense.
THE COURT: Got two minutes.
[PROSECUTOR]: Thank you, your Honor.
He is absolutely not entitled to self-defense. Now, if you don’t
like Wayne and you think maybe Wayne somehow bears some
responsibility or some involvement, that’s fine. I certainly wouldn’t
quarrel with you. But the appropriate place to take that blame or responsibility is
then in the punishment part of the trial.
[DEFENSE COUNSEL]: Your Honor, I’m going to object.
That’s improper argument to start talking about punishment during the
closing of a guilt/innocence. That’s absolutely improper.
THE COURT: Ladies and gentlemen, first of all, what -- of
course, what the lawyers say is not evidence, and what the lawyers say is
not -- doesn’t have anything to do with the charge. And, of course, the
jury is -- is instructed that you’re not to in any way consider punishment
in determining your verdict.
So please continue.
[DEFENSE COUNSEL]: And, your Honor, because the law
requires me, I’m going to request a mistrial.
THE COURT: Overrule the objection. [Emphasis added.]
8
B. Standard of Review
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable deduction
from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law
enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Felder v.
State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992).
When a trial court sustains an objection and instructs the jury to disregard
improper argument but denies a defendant’s motion for a mistrial, the issue is whether
the trial court abused its discretion by denying the mistrial. Hawkins v. State, 135
S.W.3d 72, 76–77 (Tex. Crim. App. 2004). A mistrial is required only in extreme
circumstances: when the improper argument causes incurable prejudice—that is, the
argument is “so prejudicial that expenditure of further time and expense would be
wasteful and futile.” Id. at 77; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim.
App. 2003). In determining whether a trial court abused its discretion by denying a
mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial
effect); (2) curative measures; and (3) the certainty of conviction absent the
misconduct. Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g).
C. Applicable Law
It is generally improper for the State to comment on punishment during the
guilt-innocence stage of the trial. See McClure v. State, 544 S.W.2d 390, 393 (Tex. Crim.
9
Ohio App. 1976); Cherry v. State, 507 S.W.2d 549, 549 (Tex. Crim. App. 1974). However,
not every reference to punishment at the guilt-innocence stage is improper. Wright v.
State, 178 S.W.3d 905, 930 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (citing
Mann v. State, 718 S.W.2d 741, 744 (Tex. Crim. App. 1986)).
D. Analysis
Here, even if we were to assume that the complained-of remark was improper,
we disagree with Appellant’s position that the trial court’s curative measures were
“wholly inadequate.” In determining the severity of the misconduct, we look at the
magnitude of the prejudicial effect and whether the misconduct was extreme or
manifestly improper. See Hawkins, 135 S.W.3d at 77. In the case before us, the
prosecutor’s complained-of argument, on its face, did not suggest that the jury should
disregard the facts of the case, nor—contrary to Appellant’s argument—did it tell the
jury that it should not consider Appellant’s claim of self-defense until the punishment
phase of the trial. Instead, throughout the State’s closing arguments, the prosecutors
focused on the testimony provided by the witnesses and asked the jury to determine
the credibility of Appellant’s various versions of what had occurred on the night in
question. On this record, we conclude that the severity of the alleged misconduct was
neither extreme nor manifestly improper. See Jones v. State, No. 05-15-01012-CR, 2017
WL 3275995, at *9 (Tex. App.—Dallas July 25, 2017, pet. ref’d) (mem. op., not
designated for publication) (concluding that the severity of the prosecutor’s
10
misconduct was neither extreme nor manifestly improper when the prosecutor told
the jury to save its sympathy for punishment).
As to the certainty of conviction absent the misconduct, Appellant argues,
“Had the self-defense argument of Appellant not been nullified by the comments
made by the [S]tate in closing arguments, the jury could have easily acquitted on the
issue of self-defense.” However, the record includes evidence that although Wayne
had initially fired a shotgun into a burn pit in the front yard (i.e., in the opposite
direction of Appellant), Wayne had returned the gun to the camper before the fight
with Appellant ensued. Because Wayne was unarmed when the two began engaging
in physical combat, Appellant was not justified in using deadly force against Wayne.
See generally Bundy v. State, 280 S.W.3d 425, 435 (Tex. App.—Fort Worth 2009, pet.
ref’d) (stating that appellant’s use of deadly force was not a justifiable response to
victim’s attempted punch, which was not deadly force). Thus, the facts—rather than
the prosecution’s argument—provided a basis for the jury to conclude that Appellant
did not act in self-defense.
Finally, the trial court’s curative measures included instructing the jury (1) that
what the lawyers said was not evidence and (2) that they were not to consider
punishment in determining their verdict. Additionally, the jury charge for the guilt-
innocence stage of trial stated in part, “[I]n determining the guilt or innocence of the
Defendant, you shall not discuss or consider the punishment, if any, which may be
assessed against the Defendant in the event he is found guilty beyond a reasonable
11
doubt.” Nothing in the record suggests that the jury failed to follow the trial court’s
instructions. See Jenkins v. State, 493 S.W.3d 583, 616 (Tex. Crim. App. 2016) (stating
that the jury is presumed to have understood and to have followed the trial court’s
instructions absent evidence to the contrary).
On this record, we hold that the trial court did not abuse its discretion by
denying Appellant’s motion for mistrial. See Jones, 2017 WL 3275995, at *10.
Accordingly, we overrule Appellant’s first issue.
IV. Jury Charge
In his second and third issues, Appellant challenges additions to and omissions
from the jury charge. Because these two issues utilize the same standard of review, we
set forth the standard only once and then address each issue in turn below.
A. Standard of Review
We must review “all alleged jury-charge error . . . regardless of preservation in
the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In
reviewing a jury charge, we first determine whether error occurred; if not, our analysis
ends. Id.
B. Inclusion of a Reasonable Doubt Instruction in the Charge Was
Permissible
In his second issue, Appellant argues that the trial court reversibly erred when it
included a reasonable doubt instruction in the jury charge.
12
1. The Charge
Page 7 of the jury charge contains the following:
The prosecution has the burden of proving the Defendant guilty and it
must do so by proving each and every element of the offense charged
beyond a reasonable doubt and if it fails to do so, you must acquit the
Defendant. It is not required that the prosecution prove guilt beyond all possible
doubt; it is required that the prosecutor’s proof excludes all reasonable doubt
concerning the Defendant’s guilt. [Emphasis added.]
2. The Objection
During the charge conference, Appellant objected to the inclusion of the last
sentence set forth above regarding reasonable doubt:
[DEFENSE COUNSEL]: On Page 7 of the State’s jury instruction,
second paragraph, when it talks about the prosecution has the burden of
proving Defendant guilty, I believe that their final sentence it’s not
required that the prosecution prove all -- prove guilt beyond all possible
doubt -- it is required that the prosecutor’s proof excludes all reasonable
doubt. That is attempting to define reasonable doubt for the jury, and I believe
that language needs to be stricken, just that last sentence. Obviously the
prosecution has the burden of proving the Defendant guilty, and it must
do so by each -- by proving each and every element beyond a reasonable
doubt as appropriate, but not that last line. He’s attempting to define
reasonable doubt for the jury.
THE COURT: Response?
[PROSECUTOR]: Judge, I mean, that language has been in every
charge. I -- I -- I don’t believe that it’s -- that is not the [Geesa]
instruction that was initially approved by the Court of Criminal Appeals,
which has now been disapproved by the Court of Criminal Appeals
pertaining to [Geesa]. That’s just -- that’s an instruction that we’ve had
since --
[DEFENSE COUNSEL]: I don’t necessarily believe that that’s a
legal cause to have that part of that instruction in there. Because that’s
how we’ve always done it doesn’t make it appropriate.
13
[PROSECUTOR]: No, I understand that. I’m just saying I don’t
think it is a -- it is not a definition. It is not an instruction. It is just --
[DEFENSE COUNSEL]: If the prosecution wants to comment
on that in his closing argument, I think it’s fair to do so. But to define it
in the charge and try to shift the burden over to the Defense, I think that
is attempting to find be[] -- beyond reasonable doubt, and there’s --
obviously in direct contrast to what the law says, which it’s up to the
jury’s province to define reasonable doubt for each and every person.
....
THE COURT: Okay. I’m going to overrule. [Emphasis added.]
3. Analysis
Here, the sentence that Appellant complains of is not a definition but rather an
instruction. See Minor v. State, 91 S.W.3d 824, 828–29 (Tex. App.—Fort Worth 2002,
pet. ref’d). Moreover, the Texas Court of Criminal Appeals has previously reviewed
the exact sentence that Appellant complains of and has repeatedly held that the trial
court does not err by giving such an instruction. See Mays v. State, 318 S.W.3d 368,
389 (Tex. Crim. App. 2010); Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App.
2004). We therefore overrule Appellant’s second issue.
C. Language Regarding “No Duty to Retreat” Was Not Required in the
Application Section
In his third issue, Appellant argues that the trial court erred by failing to include
“no duty to retreat” language in the application paragraph of the jury charge, even
though the abstract portion of the charge contained that very language.
14
1. The Charge
The jury charge contained the following:
IV.
Now bearing in mind the foregoing instructions, if you believe
from the evidence beyond a reasonable doubt, that the Defendant,
ROBERT LEE THOMPSON, on or about the 23rd day of August,
2016, in the County of Wise, and State of Texas, did then and there
knowingly or recklessly cause bodily injury to Douglas Robinson, Jr. by
stabbing Douglas Robinson, Jr. with a knife, and the Defendant did then
and there use or exhibit a deadly weapon, to-wit: a knife, during the
commission of said assault, then you will find the Defendant guilty of
the offense of Aggravated Assault with a Deadly Weapon.
Unless you so find beyond a reasonable doubt, or if you have a
reasonable doubt thereof, you will find the Defendant not guilty.
V.
Upon the law of self-defense, you are instructed that a person is
justified in using force against another when and to the degree that he
reasonably believes the force is immediately necessary to protect himself
against the other person’s use or attempted use of unlawful force. The
use of force against another is not justified in response to verbal
provocation alone or if the actor provoked the other’s use of force.
A person is justified in using deadly force against another if he
would be justified in using force against the other in the first place, as
above set out, and when he reasonably believes that such deadly force is
immediately necessary to protect himself against the other person’s use
or attempted use of unlawful deadly force.
....
By the term “deadly force[,”] as used herein, is meant force that is
intended or known by the person using it to cause, or in the manner of
its use or intended use is capable of causing death or serious bodily
injury.
15
....
A person who has a right to be present at the location where the
deadly force is used, who has not provoked the person against whom the
deadly force is used, and who is not engaged in criminal activity at the
time the deadly force is used, is not required to retreat before using deadly force
to defend himself. If you find from the evidence that the Defendant was such a person,
or if you have a reasonable doubt thereof, in determining whether the Defendant
reasonably believed that the use of deadly force was necessary, you may not consider
whether the Defendant failed to retreat.
When a person is attacked with unlawful deadly force, or he
reasonably believes he is under attack or attempted attack with unlawful
deadly force, and there is created in the mind of such person a
reasonable expectation or fear of death or serious bodily injury, then the
law excuses or justifies such person in resorting to deadly force by any
means at his command to the degree that he reasonably believes
immediately necessary, viewed from his standpoint at the time, to
protect himself from such attack or attempted attack with unlawful
deadly force. And it is not necessary that there be an actual attack or
attempted attack with unlawful deadly force, as a person has a right to
defend his life and person from apparent danger as fully and to the same
extent as he would had the danger been real, provided that he acted
upon a reasonable apprehension of danger, as it appeared to him from
his standpoint at the time, and that he reasonably believed such deadly
force was immediately necessary to protect himself against the other
person’s use or attempted use of unlawful deadly force.
In determining the existence of real or apparent danger, you
should consider all the facts and circumstances in evidence before you,
all relevant facts and circumstances surrounding the use of force or
deadly force, if any; the previous relationship existing between the
Defendant and Douglas Robinson, Jr.; together with all relevant facts
and circumstances going to show the condition of the mind of the
Defendant at the time of the alleged offense. In considering such
circumstances, you should place yourselves in the Defendant’s position
at that time and view them from his standpoint alone.
16
VI.
Now bearing in mind the foregoing instructions, if you believe from the
evidence beyond a reasonable doubt, that the Defendant, ROBERT
LEE THOMPSON, on or about the 23rd day of August, 2016, in the
County of Wise, and State of Texas, did then and there knowingly or
recklessly cause bodily injury to Douglas Robinson, Jr. by stabbing
Douglas Robinson, Jr. with a knife and the Defendant did then and there
use or exhibit a deadly weapon, to-wit: a knife, during the commission
of said assault, then you will find the Defendant guilty of the offense of
Aggravated Assault with a Deadly Weapon, but you further find from
the evidence, or you have a reasonable doubt thereof that, at the time of
the alleged offense, the Defendant reasonably believed that from the
words or conduct, or both, of Douglas Robinson, Jr., it reasonably
appeared to the Defendant, as viewed from his standpoint, that his life
or person was in danger and there was created in his mind a reasonable
expectation or fear of death or serious bodily injury from the use of
unlawful deadly force by Douglas Robinson, Jr., and that acting under
such apprehension and reasonably believing that the use of deadly force
on his part was immediately necessary to protect himself against Douglas
Robinson, Jr.’s use or attempted use of unlawful deadly force, he stabbed
Douglas Robinson, Jr., then you will find the Defendant not guilty of the
offense of Aggravated Assault with a Deadly Weapon as charged in the
Indictment.
VII.
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 he was in danger of death or serious bodily injury, or that the
Defendant, under circumstances as viewed by him from his standpoint
at the time, did not reasonably believe that the degree of force actually
used by him was immediately necessary to protect himself against
Douglas Robinson, Jr.’s use or attempted use of unlawful deadly force,
then you should find against the Defendant on the issue of self-defense.
[Emphasis added.]
17
2. The Objection
During the charge conference, Appellant requested that the trial court add
language regarding “no duty to retreat” to the application section:
[DEFENSE COUNSEL]: I would ask that the State add in their
application section the language including no duty to retreat. I saw it in
the definition section, but I didn’t see it in the application section.
[PROSECUTOR]: Judge, on the bottom of Page 4[,] I think it’s
included in -- in -- I mean, I think it’s -- it’s in the instruction, and it is in
--
[DEFENSE COUNSEL]: It’s in the definition, but you don’t
have it in the application.
THE COURT: So how are you proposing to word it, then,
[defense counsel]?
[DEFENSE COUNSEL]: That if the jury believes that Robert
Thompson had a right to be present at the location where the force was
used and he has not provoked the person against whom the force is used
and he is not engaging in criminal activity at the time the force is used, it
is not required of him to retreat before force -- before using force. And
in determining whether an actor described by that section reasonably
believes the above use of force was necessary, a finder of fact may not
consider whether the actor failed to retreat.
THE COURT: You want all of that in the application?
[DEFENSE COUNSEL]: Yes, because I think that in this case,
as far as the self-defense goes, I think that’s a very necessary application
to the self-defense. If the jury believes that the Defendant was required
to retreat, that goes against what the law says in the self-defense
definitions. He has no duty to retreat if they find that he had a right to
be there and he wasn’t committing criminal activity and he believed that
the force was reasonably necessary.
[PROSECUTOR]: I think -- I think they can just argue that. I
mean, it’s in the charge. It’s in the instructions. I don’t think it would
18
be necessary to be in the application paragraph. All that -- all that
language is already there on Page 4.
THE COURT: As it -- as I understand the way you would want
to submit it, I think that could be confusing to the -- to the jury.
[DEFENSE COUNSEL]: In applying the actual statute in the
law section where the Court is instructing the jury, this is how they apply
that law that the Court’s provided. Because the way that the jury charges
have always been constructed is definitions and application, and the
application is where the Court provides the -- the jury with the facts
applied to that statute. And that’s all I’m asking to do is have the Court
apply that -- those facts to that part of the statute which is included in
the definition section but not in the application section of this charge.
....
THE COURT: Okay. Sorry. I just wanted to make sure. I’ll
deny that request as -- as you requested it --
[DEFENSE COUNSEL]: I’m going to --
THE COURT: -- that instruction.
[DEFENSE COUNSEL]: -- ask for a running objection to that,
Judge.
THE COURT: All right.
[PROSECUTOR]: Judge, and I’m just citing to Morales versus
State, Texas Criminal Appeals 2011, 357 S.W.3d: No language in self-
defense statute is amended in 2000. Calls for determining as a general
matter whether a duty to retreat exists.
I -- I haven’t read the case, but it seemed to imply that -- going to
the issue of what the jury has to make a determination, whether in fact
someone retreated or did not retreat. And I’m not going to object at
them -- the Defense telling them what the law is because that’s contained
in this.
THE COURT: It’s in the instruction?
19
[PROSECUTOR]: Yes, sir.
THE COURT: Okay. All right.
3. Applicable Law
The application paragraph explains to the jury in concrete terms how to apply
the law to the case’s facts. Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App.
2013). Preserved error in the charge’s application paragraph is subject to the usual
Almanza harm analysis. Vasquez v. State, 389 S.W.3d 361, 363 (Tex. Crim. App. 2012)
(citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)).
When the trial court gives a definition or an instruction on a theory of law in the
charge’s abstract portion, the application paragraph must (1) specify all of the
conditions to be met before the jury may convict under that theory, (2) authorize a
conviction under conditions specified by other paragraphs of the jury charge to which
the application paragraph necessarily and unambiguously refers, or (3) contain some
logically consistent combination of those other paragraphs. Id. at 367 (quoting Plata v.
State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled on other grounds by Malik v.
State, 953 S.W.2d 234 (Tex. Crim. App. 1997)). If the application paragraph
necessarily and unambiguously refers to another paragraph of the charge, then a
conviction is authorized; the trial judge need not sua sponte “cut and paste” that
definition into the application paragraph. Id.
20
Texas Penal Code sections 9.31(e) and 9.32(c) provide:
A person who has a right to be present at the location where the force[,
or deadly force] is used, who has not provoked the person against whom
the force[, or deadly force] is used, and who is not engaged in criminal
activity at the time the force[, or deadly force] is used is not required to
retreat before using force[, or deadly force] as described by this section.
Tex. Penal Code Ann. § 9.31(e) (setting forth text of self-defense statute as shown by
the language quoted above, excluding the bracketed additions), § 9.32(c) (setting forth
text of deadly force statute as shown by all of the language quoted above). Further,
sections 9.31(f) and 9.32(d) state that in determining whether the person described in
sections 9.31(e) or 9.32(c) reasonably believed that the use of force, or deadly force,
was necessary, a factfinder may not consider whether he failed to retreat. See id.
§§ 9.31(f), 9.32(d).
4. Analysis
Here, Appellant initially argues in his third issue—under the heading labeled
“There was error”—that “this case did not contain deadly force” and that there was
error in the charge because it did not include the following instructions from the self-
defense statute:
(e) A person who has a right to be present at the location where the
force is used, who has not provoked the person against whom the force
is used, and who is not engaged in criminal activity at the time the force
is used is not required to retreat before using force as described by this
section.
(f) For purposes of Subsection (a), in determining whether an actor
described by Subsection (e) reasonably believed that the use of force was
21
necessary, a finder of fact may not consider whether the actor failed to
retreat.
See id. § 9.31(e), (f). Appellant, however, did not make that specific argument in the
trial court. During the charge conference, Appellant’s argument focused on the
absence of the “no duty to retreat” language from the application section.5
Unless a particular statute places a sua sponte duty on a trial court to give an
instruction, the trial court generally need not instruct the jury sua sponte on
unrequested traditional defenses and defensive issues because they are not “law
applicable to the case.” See Tex. Code Crim. Proc. Ann. art. 36.14; Tex. R. App. P.
33.1; Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see also Oursbourn v.
State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008). A defendant who fails to ask for
an instruction on such issues, or to object to their exclusion, forfeits the alleged error
on appeal; thus we do not engage in an Almanza egregious-harm review. See Tex. R.
App. P. 33.1; Vega, 394 S.W.3d at 519; see also Posey v. State, 966 S.W.2d 57, 62 (Tex.
Crim. App. 1998); Almanza, 686 S.W.2d at 171–74.
Because Appellant did not request the specific section 9.31(e) and (f)
instructions he argues on appeal should have been included, he did not preserve his
initial argument for review. See Pruiett v. State, No. 05-12-00131-CR, 2013 WL
Appellant reiterated at the end of the charge conference, “[O]ur additional
5
objections are, one, adding in the application section of the charge the duty to not retreat, that
you don’t have a duty to retreat language, which was denied by the Court[,] and we
asked for a running objection to.” [Emphasis added.]
22
1277861, at *2 (Tex. App.—Dallas Feb. 25, 2013, pet. ref’d) (mem. op., not
designated for publication) (holding that appellant did not preserve for appeal his
issue of whether the trial court erred by failing to include a self-defense instruction in
the jury charge).6
Appellant argues in the remainder of his third issue—under the heading labeled
“The error was harmful”—that his “right to argue self-defense was jeopardized
because the lack of [] ‘duty to retreat’ language (which is specifically spelled out by the
statute) was not included in the application paragraph.” Appellant’s harm argument is
based on an alleged error that differs from the one that he asserted at the outset of his
third issue. We therefore begin our analysis of this argument by determining whether
the absence of the “no duty to retreat” language in the application paragraph
constitutes error.
6
Even if Appellant had preserved this argument for our review, he cannot show
harm because the record reflects that the trial court included instructions on deadly
force, which tracked almost word-for-word the self-defense instructions that
Appellant complains were absent from the charge. Moreover, the instructions
provided by the trial court were specific to the evidence presented on Appellant’s
defensive theory and his counsel’s closing argument that the use of deadly force, not
just “force” as specified in section 9.31(e) and (f), applied to the facts at hand:
And the way you have to look at this, because the way the law requires,
is you have to put yourself in [Defendant]’s shoes. Okay? Was
[Defendant] justified in using deadly force when and to the degree
[Defendant] reasonably believed that deadly force used against Wayne
was immediately necessary. And of course I did some checking on the --
on the Code and dealing with the deadly force. And you’re not gonna be
surprised, but there’s no warning shot exemption to the law of deadly
force. . . . [N]obody in here is going to deny that -- that using a gun or
exhibiting a gun is -- is a use of deadly force.
23
The trial court was not required to repeat verbatim the “no duty to retreat”
language from the abstract portion of the charge in the application paragraph. As set
forth above, the jury charge contained detailed self-defense instructions and use-of-
deadly-force instructions in Section V, which was immediately followed by this
language in Section VI, “Now bearing in mind the foregoing instructions.” When read as a
whole, we conclude that the charge sets forth the law applicable to the case as
determined by the allegations in the indictment and the evidence presented at trial and
contains an application paragraph authorizing a conviction under conditions specified
by other paragraphs of the charge to which the application paragraph refers. See Reece
v. State, No. 05-09-00392-CR, 2010 WL 3946330, at *2 (Tex. App.—Dallas Oct. 11,
2010, pet. ref’d) (mem. op., not designated for publication) (holding that trial court
was not required to repeat in the application paragraph the statutory elements
excusing the duty to retreat because the application paragraph referred back to the
abstract portion of the jury charge in which the language from section 9.31(e) was set
forth); Holland v. State, 249 S.W.3d 705, 709 (Tex. App.—Beaumont 2008, no pet.)
(holding that the words “in light of the law on self[-]defense as instructed herein”
clearly incorporated into the application paragraph the self-defense instructions from
the abstract portion of the charge). Moreover, absent evidence to the contrary, we
presume the jury followed and understood the instructions. See Jenkins, 493 S.W.3d at
616; Holland, 249 S.W.3d at 709. We therefore overrule Appellant’s third issue.
24
V. Admission of State’s Exhibits 28 and 29
In his fourth and fifth issues, Appellant argues that the trial court abused its
discretion by admitting State’s Exhibits 28 and 29—videos of his interviews with
police before and after his arrest—over his objections that they were being used for
improper impeachment and that they contained hearsay.
A. Standard of Review
We review a trial court’s evidentiary rulings under an abuse-of-discretion
standard. See Jenkins, 493 S.W.3d at 607. A trial judge’s decision is an abuse of
discretion only when it falls outside the zone of reasonable disagreement. Winegarner
v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). An evidentiary ruling will be
upheld if it is correct on any theory of law applicable to the case. Gonzalez v. State, 195
S.W.3d 114, 126 (Tex. Crim. App. 2006).
Generally, the erroneous admission or exclusion of evidence is
nonconstitutional error governed by rule 44.2(b) if the trial court’s ruling merely
offends the rules of evidence. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.
App. 2001). “A criminal conviction should not be overturned for non-constitutional
error if the appellate court, after examining the record as a whole, has fair assurance
that the error did not influence the [factfinder], or had but a slight effect.” See Tex. R.
App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also
Solomon, 49 S.W.3d at 365. Moreover, a trial court’s erroneous admission of evidence
will not require reversal when other such evidence was received without objection,
25
either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718
(Tex. Crim. App. 1998).
B. The Evidence
During Appellant’s direct examination by defense counsel, he testified that he
had talked to the police only once. On cross-examination, Appellant affirmatively
stated that he was not interviewed after he was arrested, and he repeatedly denied that
he had been interviewed by the police a second time. During rebuttal, the State
recalled Investigator Polhemus who had testified during the State’s case in chief about
Appellant’s two interviews. Investigator Polhemus identified the videos of the two
interviews: State’s Exhibit 29 contains the interview that Investigator Polhemus and
Lieutenant Golden conducted with Appellant shortly after midnight on August 24,
and State’s Exhibit 28 contains the post-arrest interview that Investigator Polhemus
conducted with Appellant on August 25. 7 When the State offered the two videos into
evidence, Appellant objected based on improper impeachment and hearsay. The trial
court admitted the videos over Appellant’s objections but granted him a running
objection. The State played State’s Exhibit 29—the video of Appellant’s initial
interview, during which he ultimately admitted stabbing Wayne but repeatedly denied
that he had brought the knife with him to the scene. Although the State did not play
7
The State acknowledged at trial that these two exhibits “probably should have
[been] put . . . in [a] different order” because the video reflected in State’s Exhibit 29
took place before the video reflected in State’s Exhibit 28.
26
State’s Exhibit 28 during the trial,8 the State did question Investigator Polhemus about
the second interview. Investigator Polhemus testified that during the second
interview, which lasted approximately five minutes, Appellant admitted for the first
time that the knife belonged to him.
C. Analysis
Assuming, without deciding, that it was error for the trial court to admit State’s
Exhibits 28 and 29, Appellant cannot show reversible error. As set forth above, the
officer who interviewed Appellant both before and after his arrest testified without
objection during the State’s case in chief about the answers that Appellant gave in
response to questions about how the stabbing had occurred, including that Appellant
had denied ownership of the knife until the second interview. Because the substance
of the videos about which Appellant complains came into evidence without objection
during the State’s case in chief, Appellant cannot show reversible error from the
admission of the videos during the State’s rebuttal. See Vela v. State, No. 02-16-00330-
CR, 2018 WL 2248562, at *5 (Tex. App.—Fort Worth May 17, 2018, pet. ref’d)
(mem. op., not designated for publication) (holding that appellant could not
demonstrate reversible error because the video’s substance had come into evidence
without objection during officer’s testimony). Accordingly, we overrule Appellant’s
fourth and fifth issues.
The record reflects that the jury sent out a note during their deliberations
8
requesting to review State’s Exhibit 28, and it appears that the trial court made the
video available for the jury to watch.
27
VI. Conclusion
Having overruled each of Appellant’s five issues, we affirm the trial court’s
judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 15, 2019
28