Davion Van Quinn Scott v. the State of Texas ( 2024 )

Reversed and Remanded and Opinion Filed February 6, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00113-CR
DAVION VAN QUINN SCOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-2075064-R
MEMORANDUM OPINION
Before Justices Carlyle, Goldstein, and Kennedy
Opinion by Justice Goldstein
Appellant Davion Van Quinn Scott was convicted of murder by a jury, see
TEX. PENAL CODE ANN. § 19.02, and sentenced to forty years’ confinement by the
trial court. In two issues, appellant asserts that the trial court erred by (1) excluding
evidence he offered in support of his self-defense theory and (2) overruling his
objection to the self-defense portion of the court’s jury charge. We do not reach the
first issue, as we conclude that the trial court erred in its jury charge and such error
resulted in egregious harm. We therefore reverse and remand this cause for a new
trial.
BACKGROUND
On January 11, 2020, appellant was staying at a motel in Dallas, Texas, and
had several guests over. Appellant and one of the guests, Urian Dickerson, got into
an argument, and the two men agreed to go “fight” off hotel property. Appellant and
Dickerson continued to argue outside the motel room and on to the shopping center
across the street. The argument drew attention from people in the shopping center,
including Andre Menefee, a drug dealer. Menefee attempted to diffuse the argument,
telling the two men to “chill out” because they were “making the block hot”; that is,
potentially drawing unwanted attention by police. Dickerson and appellant walked
away from each other but continued arguing, with Menefee standing to the side
watching.
Surveillance footage from multiple cameras at the shopping center captured
what happened next from various angles. As he was walking away, appellant turned
and yelled something toward Dickerson. Appellant then turned and continued
walking away, at which point Menefee started approaching him. Appellant turned to
face Menefee, who continued approaching appellant. The surveillance footage
contains no audio, and the evidence conflicts as to what Menefee said to appellant
as he approached. Appellant pulled a gun from his back pocket and shot Menefee.
Appellant is seen on surveillance running through the shopping center. Bystanders
called 911, and police and paramedics were dispatched to the scene. Menefee was
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transported to a hospital and pronounced dead. A Dallas County medical examiner
determined that Menefee died as a result of gunshot wounds.
Appellant was indicted for murder and tried by jury. At the close of evidence,
the trial court held a charge conference outside the presence of the jury. Appellant’s
only objection to the charge was that it lacked an instruction regarding the
presumption under section 9.31(a). The trial court denied the request thus overruling
the instruction. Defense counsel confirmed there was no other objection to the
Court’s charge.
In the presence of the jury, the trial court read the charge, and both sides
presented closing argument. Before the jury began its deliberation,1 the trial court
excused the jury to consider an objection by appellant to the charge, initially
presented as a typographical error, asserting “that paragraph should end with the jury
being instructed that, if they find those things true that are contained in that
paragraph, then they would be compelled to find the defendant not guilty of the
offense of murder.” (emphasis added). Appellant argued that the such error in the
charge constituted a misstatement of the law urging “that the law in self-defense is
very clear that a self -- that a reasonable doubt about self-defense would mean that
the -- the jury shall acquit the defendant.” The trial court overruled the objection.
The jury returned a guilty verdict and, after the punishment phase, the trial court
1
In light of the COVID-19 pandemic, the trial court explained to the jurors that they would conduct
their deliberations in the courtroom so that they would have space to socially distance from each other.
Thus, the jury had not yet begun its deliberation when appellant made this objection.
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entered a judgment of guilty and sentenced appellant to forty years’ confinement.
This appeal followed.
DISCUSSION
Appellant raises two issues on appeal. We address only the second issue, as
its resolution is dispositive. Appellant contends that the trial court’s charge to the
jury was erroneous because it instructed the jury to convict, rather than acquit, if the
jury had a reasonable doubt whether appellant was justified in using deadly force.
The State concedes that this portion of the charge was erroneous but argues that it
did not result in egregious harm, which the State contends is the appropriate standard
given appellant’s untimely objection to the charge.
A. Standard of Review
Our review of the charge requires us first to determine whether there is error
in the jury charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984),
superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d
787 (Tex. Crim. App. 1988). If there is error, then we next determine whether “the
error in the charge was the subject of a timely objection in the trial court[.]” Id. If
the appellant raised a timely objection in the trial court to the error, then the appellate
court must reverse the trial court’s judgment if the error “is calculated to injure the
rights of the defendant.” TEX. CODE CRIM. PROC. ANN. art. 36.19; Almanza, 686
S.W.2d at 171. This standard requires proof of no more than “some harm to the
accused from the error.” Almanza, 686 S.W.2d at 171. If the appellant did not raise
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the error at trial, then the appellant can prevail “only if the error is so egregious and
created such harm that he ‘has not had a fair and impartial trial’—in short ‘egregious
harm.’ ” Id. “In both situations the actual degree of harm must be assayed in light of
the entire jury charge, the state of the evidence, including the contested issues and
weight of the probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id.
B. Charge Error
Appellant contends that the charge improperly instructed the jury as to self-
defense. The State concedes the error. Although we are not bound by the State’s
concession,2 in this instance we agree that the charge contained an error.
A person is justified in using force against another when and to the degree he
reasonably believes the force is immediately necessary to protect against the other’s
use or attempted use of unlawful force. TEX. PENAL CODE ANN. § 9.31(a). A person
is justified in using deadly force against another if he would be justified in using
force, and he reasonably believes deadly force is immediately necessary to protect
himself against the other’s use or attempted use of unlawful deadly force. Id.
§ 9.32(a). The evidence does not have to show that the victim was actually using or
attempting to use unlawful deadly force because a person has the right to defend
himself from apparent danger as he reasonably apprehends it. Jordan v. State, 593
2
Hankston v. State, 656 S.W.3d 914, 918 (Tex. App.—Houston [14th Dist.] 2022, pet. ref’d) (“[T]his
court is not bound by the State’s concession regarding an issue of law.”) (citing Oliva v. State, 548 S.W.3d
518, 520 (Tex. Crim. App. 2018)).
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S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Hamel v. State, 916 S.W.2d 491,
493 (Tex. Crim. App. 1996)).
A defendant has the burden of producing some evidence to support a claim of
self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The State
has the burden of persuasion in disproving self-defense. Saxton v. State, 804 S.W.2d
910, 913 (Tex. Crim. App. 1991). This burden does not require the State to produce
evidence refuting the self-defense claim; rather, the burden requires the State to
prove the offense charged in its case-in-chief beyond a reasonable doubt. Id.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, 593 S.W.3d
at 343; Hamel, 916 S.W.2d at 493. If the defendant shows entitlement to a jury
instruction on self-defense, “[t]he jury must be instructed to acquit the defendant if
they believe that he was acting in self-defense or have a reasonable doubt thereof.”
Russell v. State, 834 S.W.2d 79, 82 (Tex. App.—Dallas 1992, pet. ref’d) (emphasis
added).
Here, the jury charge set forth the law of self-defense and, in two application
paragraphs, instructed the jury as follows:
Now bearing in mind the foregoing definitions, instructions, [sic] if you
believe from the evidence beyond a reasonable doubt that the defendant
is guilty of the offense defined in this charge, but you further find from
the evidence, or have a reasonable doubt thereof, that the defendant
reasonably believed that deadly force when and to the degree used, if it
was, was immediately necessary to protect himself against the use or
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attempted use of unlawful deadly force by [Menefee], if any, you will
acquit the defendant and say by your verdict not guilty.
If you are unable to agree, or if you have a reasonable doubt thereof,
that the Defendant was justified in using deadly force against [Menefee]
in self-defense then you will find the defendant guilty of the offense of
murder, as charged in the indictment.
Appellant complains that these two sentences irreconcilably conflict with each other,
instructing the jury to simultaneously acquit and convict him if they have a
reasonable doubt as to whether he acted in self-defense. Appellant also argues that
the second instruction impermissibly shifts the burden to him to prove self-defense.
We agree on both points. The two sentences are almost identical in meaning,
with the exception that the second sentence does not include the condition that the
jury must first have found appellant guilty of the charged offense of murder beyond
a reasonable doubt.3 Both sentences include the phrase “have a reasonable doubt
thereof,” qualifying defendant’s use of deadly force in self-defense.4 Although the
first sentence correctly instructed the jury, if after believing beyond a reasonable
doubt that defendant is guilty of the offense of murder, to acquit appellant if they
found from the evidence or had a reasonable doubt as to self-defense, the second
sentence incorrectly instructed the jury to convict if they are unable to agree or had
reasonable doubt that defendant was justified in using deadly force. See Russell, 834
3
As appellant does not assert on appeal that the jury charge is erroneous on the ground that the second
instruction lacks this condition, we do not address it here.
4
The first instruction couches self-defense in terms of appellant’s reasonable belief as to whether his
use of deadly force was immediately necessary, while the second instruction does so in terms of justification
in using deadly force. TEX. PENAL CODE ANN. §§ 9.31, 9.32.
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S.W.2d at 82. Moreover, the second sentence, by inartfully requiring conviction if
self-defense was not proven beyond a reasonable doubt, impermissibly shifted the
burden on the issue of self-defense from the State to appellant.
We agree with the parties and conclude that the second application sentence
quoted above was an erroneous statement of the law regarding self-defense.
C. Harm
Having found error in the charge, we now turn to the question of harm. As a
threshold issue, we must consider which standard of harm applies. Almanza, 686
S.W.2d at 171. Appellant argues that we must apply the “some harm” standard
because he objected to the charge in the trial court. The State argues that we must
apply the “egregious harm” standard because appellant’s objection was untimely.
We agree with the State. An objection to the jury charge is timely if it is made in
writing or on the record before the judge reads the charge to the jury. See TEX. CODE
CRIM. PROC. ANN. arts. 36.14–.15; Villarreal v. State, 429 S.W.2d 508, 511 (Tex.
Crim. App. 1968); Rojas v. State, 662 S.W.2d 466, 469 (Tex. App.—Corpus Christi–
Edinburg 1983, pet ref’d). Here, appellant lodged his objection after the charge was
read to the jury; therefore, the objection was untimely. We must therefore consider
whether appellant suffered egregious harm from the trial court’s erroneous charge.
An egregious harm determination must be based on a finding of actual rather
than theoretical harm. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
For actual harm to be established, the error must affect the very basis of the case,
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deprive the defendant of a valuable right, or vitally affect a defensive theory. Cosio,
353 S.W.3d at 777; Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005).
The degree of harm is determined “in light of the entire jury charge, the state of the
evidence, including the contested issues and weight of probative evidence, the
argument of counsel and any other relevant information revealed by the record of
the trial as a whole.” See Almanza, 686 S.W.2d at 171.
We find instructive a recent case from the Texas Court of Criminal Appeals.
Alcoser v State, 663 S.W.3d 160 (Tex. Crim. App. 2022). In Alcoser, the jury charge
‘required the jury to acquit appellant if they believed that he was acting
in self-defense or the jury had a reasonable doubt thereof,’” and it
contained instructions on the presumption of innocence, which we said,
when viewed as a whole, properly places the burden on the State to
show beyond a reasonable doubt that Appellant was not acting in self-
defense.
Alcoser, 663 S.W.3d at 169 (quoting Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim.
App. 1979). However, the court explained:
When self-defense is law applicable to the case, the trial court must
inform the jury under what circumstances it should acquit a defendant
of an offense based on self-defense. Here, there are no such instructions
in the charge, nor any other instructions that would clarify the issue.
Id. (internal citations omitted) (citing Mendez v. State, 545 S.W.3d 548, 556 (Tex.
Crim. App. 2018); Barrera v. State, 982 S.W.2d 415, 417 (Tex. Crim. App. 1998);
Luck, 588 S.W.2d at 375; TEX. PENAL CODE ANN. § 2.03(d)).
Although the procedural facts of Alcoser are similar to the case before us,
there are also critical distinctions. First are the conflicting application paragraphs.
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Second, there is no instruction that properly places the burden of proof on the State
to show beyond a reasonable doubt that appellant was not acting in self-defense. The
trial court failed to inform the jury, or gave conflicting instructions without
clarification, as to under what circumstances it should acquit the defendant of an
offense based on self-defense. In Alcoser, the Court concluded Alcoser was not
egregiously harmed as the erroneous jury charge did not vitally affect his defensive
theory because
although the jury charge did not contain an instruction that it must
acquit Appellant if it found he acted in self-defense, defense counsel
argued that the jury should acquit Appellant based on self-defense, and
the charge included instructions on the presumption of innocence and
informed the jury that the State bore the burden of disproving self-
defense beyond a reasonable doubt.
Id. at 171; see also Torres v. State, No. 08-12-00096-CR, 2014 WL 4639401, at *5
(Tex. App.—El Paso Sept. 18, 2014, pet. ref’d) (mem. op., not designated for
publication). In Torres, the trial court instructed the jury that it should acquit the
defendant if it found by a preponderance of the evidence that he acted in self-defense.
See id. at *3. Our sister court concluded that “[w]hile the charge does not explicitly
place this burden of proof on Appellant, the only logical interpretation is that it was
Appellant’s burden.” The State in Torres pointed to other statements in the charge,
namely that the jury should acquit if it could not find defendant guilty beyond a
reasonable doubt based on all the evidence. Id. at *4. The Torres court concluded
that the statement “directly conflict[ed] with the application paragraph which
inform[ed] the jury that they should acquit if self-defense had been proven by a
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preponderance of the evidence.” Id. Turning to the question of egregious harm, the
court noted that although there was conflicting evidence as to self-defense, “[t]he
jury was required to determine the credibility of the witnesses and resolve these
conflicts in the evidence in light of the erroneous instruction which required the jury
to reject Appellant’s claim of self-defense if he failed to prove it by a preponderance
of the evidence.” Id. at *5 (emphasis added). The court further noted that the charge
“did not permit the jury to acquit Appellant if they had a reasonable doubt as to
whether he acted in self-defense.” Id. Thus, the court concluded that the appellant
had suffered egregious harm, reversed the appellant’s conviction, and remanded for
a new trial. Id.
Based upon Alcoser and Torres, we conclude that on this record the
conflicting instructions in the jury charge as to self-defense are egregious as they
“vitally affect a defensive theory.” See Alcoser, 663 S.W.3d at 169; Torres, 2014
WL 4639401, at *5; see also Lowry v. State, 671 S.W.2d 601, 603 (Tex. App.—
Dallas 1984) (concluding that error in giving conflicting instructions was not
harmless because “[b]oth the State and appellant cannot carry the burden of proving
a single issue” and “[t]he presence of a correct instruction does not cure the error of
giving another inconsistent one”), rev’d in part on other grounds, 692 S.W.2d 86(Tex. Crim. App. 1985).
The State argues that appellant was not egregiously harmed because he was
not entitled to an instruction on self-defense in the first place. See Almanza, 686
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S.W.2d at 171 (requiring consideration of the state of the evidence); Allen v. State,
253 S.W.3d 260, 267–68 (Tex. Crim. App. 2008) (“[I]n an egregious-harm analysis,
it is appropriate to consider the plausibility of the evidence raising the defense, as at
least one factor among others.”). In support, the State points to the testimony of
several witnesses who each testified that Menefee was trying to diffuse the situation
and prevent a fight. Such testimony covers the time period starting with the argument
between appellant and Dickerson at the motel and ending in the parking lot of the
shopping center before Menefee began approaching appellant moments before the
shooting. But the critical evidence we must consider is what happened next. The
surveillance footage shows appellant initially walking away from Dickerson and
Menefee but turning around to say something. Menefee, who was until this point
standing still by the store, began approaching appellant. There is conflicting
evidence as to what Menefee said as he approached. One witness, the owner of a
barber shop in the shopping center, testified that he heard Menefee say, as he
approached appellant, “if you’re going to shoot me, shoot me.” Another witness, a
friend of Menefee’s, testified that he did not hear Menefee say anything to appellant
as he approached. Appellant himself testified that Menefee said, “you’re not the only
one with a gun.”
Ordinarily, we would infer that the jury resolved this evidentiary conflict
against appellant based on the jury’s guilty verdict. See, e.g., Thompson v. State, No.
05–12–00259–CR, 2014 WL 1477676, at *4 (Tex. App.—Dallas Apr. 14, 2014, no
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pet.) (mem. op., not designated for publication) (where State presented evidence that
conflicted with the defendant’s version of the events, the jury was free to resolve any
conflicts in the evidence against the defendant and to reject the defendant’s claim of
self-defense). However, we cannot do so here because, as our sister court explained
in Torres, “[t]he jury was required to determine the credibility of the witnesses and
resolve these conflicts in the evidence in light of the erroneous instruction which
required the jury to reject Appellant’s claim of self-defense if he failed to prove it
by a preponderance of the evidence.” Torres, 2014 WL 4639401, at *5 (emphasis
added). It is impossible to say whether the jury convicted because it disbelieved
appellant’s version or alternatively because it believed appellant’s version but
concluded appellant failed to prove self-defense beyond a reasonable doubt. We
therefore reject the State’s argument that the evidence weighs against a finding of
egregious harm.5
The State next contends that arguments of counsel weigh against a finding of
egregious harm. See Almanza, 686 S.W.2d at 171 (requiring consideration of
arguments of counsel). The State cites several instances of defense counsel and
counsel for the State referring to the fact that the State has the burden to show guilt
beyond a reasonable doubt. However, none of these statements refer to the burden
5
We also reject the State’s argument that, even if the jury could have believed appellant’s version,
appellant was still not entitled to a self-defense instruction because he used deadly force in response to
verbal provocation alone. See TEX. PENAL CODE ANN. § 9.31(b). A reasonable jury could have concluded
from the surveillance footage that appellant acted in self-defense not only in response to Menefee’s verbal
provocation, but also his approaching appellant.
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to prove or disprove self-defense. That is the burden at issue, and the statements of
counsel regarding the burden to prove guilt do not explain why the jury charge places
the burden as to self-defense on appellant. We conclude that, at best, this factor is
neutral.
Finally, the State points to the trial court’s admonishment to the jury during
voir dire as evidence against a finding of egregious harm. See id. (requiring
consideration of any other relevant information revealed by the record). Specifically,
during voir dire, a member of the venire panel stated that “if [appellant] doesn’t want
to testify, that’s his business. But at the same time, the defense has to prove that he
didn’t do what he’s being accused of.” The trial court responded:
Oh, no they don’t. Now, I’ll tell you this, look, I say that they could sit
here on their hands and not do anything. Are they going to do that?
Probably not. But they could. So -- but the way you say it, I just want
to make sure you understand that they do not have a burden of proof.
They do not have to show that he didn’t do it. But I’ll tell you this, what
I think maybe you’re thinking, if the State of Texas does their job, if
they prove him guilty beyond a reasonable doubt and then the defense
just sits there and does nothing, that would be a problem. Right? . . . .
So -- but I’m just saying that they don’t have a burden.
As with the previous factor, this statement is silent as to the burden to prove or
disprove self-defense and therefore does not weigh in favor or against a finding of
egregious harm.
Having considered the Almanza factors, we conclude that the error in the jury
charge egregiously harmed appellant. See Torres, 2014 WL 4639401, at *5
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CONCLUSION
We sustain appellant’s second issue. We reverse the trial court’s judgment and
remand this cause to the trial court for a new trial.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
Do Not Publish
Tex. R. App. P. 47.2(b)
220113F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAVION VAN QUINN SCOTT, On Appeal from the 265th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-2075064-R.
No. 05-22-00113-CR V. Opinion delivered by Justice
Goldstein. Justices Carlyle and
THE STATE OF TEXAS, Appellee Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.
Judgment entered this 6th day of February, 2024.
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