Victor Hugo Cuevas v. the State of Texas ( 2024 )

Affirmed and Majority and Dissenting Opinions filed April 16, 2024.
In The
Fourteenth Court of Appeals
NO. 14-22-00561-CR
VICTOR HUGO CUEVAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 17-DCR-078884
MAJORITY OPINION
Appellant Victor Hugo Cuevas appeals his conviction and sentence for
murder. He raises fourteen issues, including sufficiency of the evidence,
evidentiary complaints, jury charge complaints, and prosecutorial misconduct.
After a thorough review of the record, we overrule appellant’s issues and affirm
the trial court’s judgment.
Background
In July 2017, appellant and his friend, Milton Egbe, shot at a car driven by
Osiekhuemen Omobhude, known as “Ose.” Ose suffered two gunshot wounds and
died. The State charged appellant with murder. Appellant claimed self-defense
and pleaded not guilty, and the case proceeded to trial before a jury, which heard
the following evidence.
Juan Garza was at a shopping center, intending to eat at one of the
restaurants, Sushi Hana. Garza saw two motorcycles speed into the parking lot.
The motorcycles were driven by appellant and Egbe. In Garza’s opinion, the bikes
were “extremely loud,” louder than an average motorcycle. The motorcycles
parked, and Garza saw a Hispanic male later identified as appellant talking to the
driver of a parked car through the driver’s window. The person in the car was Ose.
Egbe stayed near the parked motorcycles, several parking spots away from Ose’s
car. Ose’s car was “backed in” to its parking spot, meaning the front end of the
vehicle was facing the parking lot.
Garza then heard a sound “like fireworks,” “about five of them, one right
after another.” He saw appellant chasing after the car as Ose tried to drive away.
Appellant had a “gun out in his right hand.”
Bonifacio Benitez was walking through the parking lot when he heard
“fireworks or gunshots.” It was “[d]efinitely more than one [shot] and it was
repetitive. It almost sounded like Black Cats, fireworks, that’s how quick they
were going.” Benitez looked around and saw “[appellant] on the motorcycle and
[it] looked like he was putting on gear calmly”; he “was putting on gloves or
getting prepared to start and head out.” Appellant was wearing “some type of skull
mask,” which Benitez thought bikers wore to “kind of block the wind.” Appellant
and Egbe drove out of the parking lot toward the nearby freeway.
2
Hoang Nguyen was working at Sushi Hana, which was in the immediate
vicinity of the shooting. Nguyen did not see the shooting, but he heard it and then
looked out the front door of the restaurant. He recognized appellant, who was a
“regular customer” of the restaurant. Nguyen remembered appellant previously
visiting the restaurant while openly carrying two guns. Nguyen saw appellant and
the second motorcycle leave the parking lot, driving “fast.”
Alexis Blanton was working at another restaurant, Buffalo Wild Wings, a
short distance from Sushi Hana. She recalled a young man entering the restaurant,
“frantic” and “looking for help.” Blanton testified that the man, later identified as
Ose, said that he had been shot and needed help. Ose then fell to the ground and
“was unresponsive.” Emergency responders transported Ose to a nearby hospital,
where he was pronounced dead.
The medical examiner who performed the autopsy testified that Ose had
been shot in the right side of his face and the back of his right shoulder. The bullet
that entered Ose’s back continued into his right chest cavity and perforated the
upper and lower lobes of his right lung before entering his aorta. This bullet was
recovered from Ose’s body. Ose suffered critical blood loss and likely died within
minutes of being shot. In the medical examiner’s opinion, the manner of death was
homicide.
Fort Bend County Sheriff’s Office (“FBCSO”) Detective David Williams
was the lead investigator. He viewed the scene in front of Sushi Hana, as well as
the scene at Buffalo Wild Wings. At the Sushi Hana location, officers recovered
fourteen shell casings from two different caliber guns: seven .380 caliber shell
casings and seven 5.7 caliber shell casings. The 5.7 caliber casings were recovered
in the general area where Egbe was seen close to the parked motorcycles. The
.380s were “in spots along there kind of almost as if [the shooter was] walking”
3
through the parking lot—i.e., where appellant was seen chasing after Ose’s car.
The bullet recovered from Ose’s body was “consistent with a .380.”
Ose’s car was left running in front of Buffalo Wild Wings. Detective
Williams saw what “appear[ed] to be bullet holes in the driver door glass” and in
the passenger side windows. Specifically, there were four to five bullet holes in
the front passenger window and one bullet hole in the rear passenger window.
From the car, officers recovered a phone, later determined to be appellant’s, and a
loaded 9 mm handgun. A second phone, which was Ose’s, was found on the
ground next to the car. There was no evidence that the 9 mm handgun had been
fired. Police also recovered two bags of marijuana from Ose’s car.
Through investigative leads, Detective Williams determined appellant was a
possible suspect. Officers executed a search warrant on appellant’s house, where
they found two motorcycles matching descriptions given by witnesses as those
driven by appellant and Egbe on the night of the shooting. Officers recovered
ammunition and guns from appellant’s bedroom. The ammunition included .380
bullets and 5.7 bullets; however, none of the guns were .380 or 5.7 caliber. There
was a safe in appellant’s bedroom, which contained, in addition to guns and
ammunition, a cloth bag with a white powder inside, several vacuum sealed bags
with a leafy green substance, and a package of clear plastic bags.
During execution of the search warrant, investigators obtained surveillance
video from appellant’s stepfather. The video showed appellant and Egbe leaving
the house on the night of the shooting and returning to the house. FBCSO
Investigator Patrick Douglas testified that, after appellant and Egbe returned to
appellant’s house, “[appellant] appears to give a fist bump or a high-five with the
other guy.”
4
The State introduced evidence that, four days after the shooting, appellant’s
mom texted him, “I went to throw ur shit somhere farwe [sic].” A minute later, she
texted, “Fare Awy,” and shortly after, “I got ur Back.” Appellant responded, “Stop
texting me this lol.”
Police arrested appellant and Egbe and charged both men with Ose’s
murder.
Appellant and Egbe testified in appellant’s defense. According to appellant,
he and Egbe were planning to eat at Sushi Hana and then go to a nearby shooting
range. This assertion was called into question, however, when appellant admitted
on cross-examination that they could not have eaten and then arrived at the
shooting range before it closed.
Appellant also testified that he planned on selling marijuana to Ose. He
texted Ose the time, place, and price for the drug deal. Appellant armed himself
with a gun and gave a loaded 5.7 caliber handgun to Egbe. Egbe testified that he
did not know if the gun was loaded when appellant gave it to him. Egbe denied
knowing that appellant was armed or that appellant intended to sell drugs that
night. Appellant testified that he carries a gun every day, including every time he
sells drugs. Neither appellant nor Egbe had a license to carry a gun or to drive a
motorcycle.
After parking the motorcycles in front of Sushi Hana, appellant told Egbe to
wait while appellant walked to Ose’s car. Appellant sat in the car on the passenger
side with his backpack containing marijuana. According to appellant, Ose pressed
a gun to appellant’s head, choked him, took his phone and the marijuana, and then
told him to “[g]et the fuck out.” After stepping out of the car, appellant turned
back to face Ose, who allegedly still pointed a gun at appellant. Ose asked, “Do
5
you have any bread.” When appellant said he had no money, Ose said, “Stop
playing with me. I will smoke you,” and then he cocked his gun.
At this point, appellant closed the door, pulled out a handgun tucked into his
waistband, and shot seven times at Ose’s car. Ose drove away, initially heading
toward the location where Egbe was waiting by the motorcycles. Egbe also shot at
Ose’s car.
Egbe testified that, when appellant was in Ose’s car, he saw Ose put a hand
to appellant’s neck and a gun to appellant’s head. Egbe then started looking in his
backpack for his gun. He heard gunshots but did not know who was shooting.
When he looked up, the car was heading toward him, so he shot at the car. 1 Egbe
testified that he was scared for appellant’s life and his own life.
Jesse Richey also testified in appellant’s defense. Richey testified that he
was at a friend’s house two weeks before the shooting and met Ose for the first and
only time. According to Richey, “Ose was telling me that he wanted to rob
somebody named Victor. And whenever I tried telling him that it wasn’t a good
idea, that he should not do that, he said that he did not care and that Victor was an
easy lick to him.”
In its closing argument, the State presented this case as a drug deal that
“went south,” and that appellant intended to shoot and kill Ose. Appellant argued
that Ose robbed appellant and threatened appellant with gun violence, and that
appellant acted in self-defense.
The charge instructed the jury on murder, appellant’s theory of self-defense,
and law of parties. The jury found appellant guilty of murder. After a punishment
trial, the jury found that appellant acted in sudden passion and assessed his
1
There were no bullet holes to the front of the car or windshield.
6
punishment at eighteen years’ confinement in the Texas Department of Criminal
Justice, Institutional Division.
Appellant timely appealed.
Analysis
Appellant presents fourteen issues for our review. We begin with his last
issue, in which he challenges the sufficiency of the evidence supporting his
conviction, because, if sustained, it would afford him the greatest relief. See
Guzman v. State, 552 S.W.3d 936, 941 (Tex. App.—Houston [14th Dist.] June 26,
2018, pet. ref’d).
A. Sufficiency of the Evidence
Appellant argues that the evidence is legally insufficient to support his
conviction for murder because the State failed to prove that appellant, rather than
Egbe, killed Ose.
We apply a legal sufficiency standard of review in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
Under this standard, we examine all the evidence adduced at trial in the light most
favorable to the verdict to determine whether a jury was rationally justified in
finding guilt beyond a reasonable doubt. Temple, 390 S.W.3d at 360; Criff v.
State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
This standard applies to both direct and circumstantial evidence. Criff, 438 S.W.3d
at 137. Accordingly, we will uphold the jury’s verdict unless a rational factfinder
must have had a reasonable doubt as to any essential element. Laster v. State, 275
7
S.W.3d 512, 518 (Tex. Crim. App. 2009); West v. State, 406 S.W.3d 748, 756
(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
For evidence to be sufficient, the State need not disprove all reasonable
alternative hypotheses that are inconsistent with a defendant’s guilt. Cantu v.
State, 395 S.W.3d 202, 207-08 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
Rather, a court considers only whether the inferences necessary to establish guilt
are reasonable based upon the cumulative force of all the evidence when
considered in the light most favorable to the jury’s verdict. Hooper v. State, 214
S.W.3d 9, 16 (Tex. Crim. App. 2007). The “cumulative force” of all the
circumstantial evidence can be sufficient for a jury to find the accused guilty
beyond a reasonable doubt, even if every fact does not “point directly and
independently to the guilt of the accused.” Powell v. State, 194 S.W.3d 503, 507
(Tex. Crim. App. 2006).
Appellant was charged with, and convicted of, murder. A person commits
murder if, as relevant here, he: (1) intentionally or knowingly causes the death of
an individual; or (2) intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an individual. Tex. Penal
Code § 19.02(b)(1), (2). To obtain a conviction, the State must prove, inter alia,
that the defendant is the person who committed the charged offense. Johnson v.
State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Kromah v. State, 283 S.W.3d
47, 50 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Investigator Williams
testified that the bullet recovered from Ose’s body “was consistent” with a .380
caliber gun.2 Seven .380 caliber shells were recovered in the area where appellant
shot at Ose. The jury reasonably could have inferred that appellant shot Ose with a
2
Appellant argues that this evidence “should have been excluded,” but a reviewing court
must consider all evidence the jury was rightly or wrongly permitted to consider. Johnson v.
State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
8
.380 caliber weapon with the intent to kill him and that the bullet from appellant’s
gun caused Ose’s death, or that appellant intended to cause serious bodily injury
and committed an act clearly dangerous to human life that caused Ose’s death.
See, e.g., Smith v. State, No. 01-19-00724-CV, 2020 WL 7062396, at *4 (Tex.
App.—Houston [1st Dist.] Dec. 3, 2020, pet. ref’d) (mem. op., not designated for
publication) (among other evidence, evidence that bullet that killed decedent was
consistent with defendant’s gun supported conviction for murder, either directly or
as a party); Farek v. State, No. 01-18-00385-CR, 2019 WL 2588106, at *5 (Tex.
App.—Houston [1st Dist.] June 25, 2019, pet. ref’d) (mem. op., not designated for
publication) (same).
Further, appellant’s flight from the scene, coupled with his mother’s
statement that she “threw [his] shit” somewhere far away, are additional
indications of guilt. See Jackson v. State, 530 S.W.3d 738, 742 n.1 (Tex. App.—
Houston [14th Dist.] 2017, no pet.) (“flight is circumstantial evidence of guilt”);
Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.) (holding
that conduct after crime indicating defendant’s consciousness of guilt is “one of the
strongest kinds of evidence of guilt”).
Having viewed the evidence in the light most favorable to the jury’s verdict,
we hold that the evidence is sufficient to support appellant’s conviction for murder.
Considering the circumstantial and forensic evidence and appellant’s admission of
his role in the shooting and his flight therefrom, the jury rationally could have
found that appellant intentionally or knowingly caused Ose’s death. “This was not
a determination so outrageous that no rational trier of fact could agree.” Wirth v.
State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012). We overrule appellant’s
fourteenth issue.
9
B. Voir Dire
In his first issue, appellant argues that the trial court erred in overruling his
objections to the prosecutor’s alleged misstatements of self-defense law during
voir dire. We review the trial court’s ruling on an objection to a party’s statement
of the law during voir dire for abuse of discretion. Parker v. State, 792 S.W.2d
795, 798-99 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d).
The first challenged statement is the prosecutor’s comment that “self-
defense becomes an issue, first, if the defendant says they did it and there is some
evidence of self-defense.” Appellant objected, arguing that a defendant “does not
have to admit to the crime.” At most, the prosecutor’s statement is incomplete.
Confession and avoidance is a judicially imposed requirement that requires
defendants who assert a justification defense, such as self-defense, to admit, or at a
minimum to not deny, the charged conduct. Rodriguez v. State, 629 S.W.3d 229,
231 (Tex. Crim. App. 2021); Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim.
App. 2020) (“Self-defense is a confession-and-avoidance defense requiring the
defendant to admit to his otherwise illegal conduct.”). Although the prosecutor’s
statement may have been incomplete, we cannot say that it was incorrect. The trial
court did not abuse its discretion in overruling appellant’s objection.
The second challenged statement to the venire panel is the prosecutor’s
recitation of certain statutory elements regarding self-defense. The prosecutor said
that, for deadly force to be justifiably deployed in self-defense, there must be an
offense involving “some sort of weapon or some sort of extra force” and the
defendant was “not engaged in criminal activity.” Appellant objected, saying,
“That’s flat wrong. That’s only if you want the presumption that it’s reasonable.”
To this, the prosecutor responded, “Correct,” and then said, “what I’m trying to
10
explain to the jury . . . are situations where deadly force is reasonable under the
law.”
Under Penal Code section 9.32, a person is justified in using deadly force
against another if (1) the person would be justified in using force against the other
under Penal Code section 9.31, and (2) when and to the degree the actor reasonably
believes the deadly force is immediately necessary to protect the person from the
other’s use or attempted use of deadly force, or to prevent the other’s imminent
commission of certain felonies. See Tex. Penal Code § 9.32(a)(2). The actor’s
reasonable belief that deadly force is immediately necessary is presumed in certain
instances:
(b) The actor’s belief under Subsection (a)(2) that the deadly force
was immediately necessary as described by that subdivision is
presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the
deadly force was used:
(A) unlawfully and with force entered, or was attempting to
enter unlawfully and with force, the actor’s occupied habitation,
vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to
remove unlawfully and with force, the actor from the actor’s
habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense
described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used;
and
(3) was not otherwise engaged in criminal activity, other than a
Class C misdemeanor that is a violation of a law or ordinance
regulating traffic at the time the force was used.
Id. § 9.32(b) (emphasis added).
11
Appellant contends that, during voir dire, the prosecutor repeatedly used the
“not otherwise engaged in criminal activity” caveat to argue that a defendant is not
entitled to a self-defense theory at all if he was engaged in criminal activity at the
time of the alleged offense.
Even if we were to agree with appellant’s characterization of the
prosecutor’s comments, we apply a harmless error analysis to a prosecutor’s
alleged misstatements of law during voir dire. Thompson v. State, 95 S.W.3d 537,
542 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (a misstatement of law during
voir dire requires reversal only if appellant was harmed by the misstatement); see
also Tex. R. App. P. 44.2(b) (stating harm analysis for non-constitutional error);
Glauser v. State, 66 S.W.3d 307, 316 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref’d) (applying rule 44.2(b) harm analysis to error regarding prosecutor’s voir dire
statement). Here, the record shows that defense counsel had the opportunity to
examine the venire panel about self-defense and to correct any misstatement of
law, including the reasonable-belief presumption or the criminal-activity caveat,
and the record further shows that defense counsel did precisely that. See Penry v.
State, 903 S.W.2d 715, 741 (Tex. Crim. App. 1995) (considering defense counsel’s
opportunity to examine venire members in assessing harm from misstatement of
law during voir dire). At the end of voir dire, defense counsel concluded by
saying, “It’s just a jury question: Was the force reasonably used at the time under
the circumstances. That’s what it is. It has nothing to do with the presumption.
That’s something different.”
Lastly, appellant challenges certain alleged misstatements made during a
bench conference. Because these statements were not made in front of the jury,
any error is harmless. Accord, e.g., Becknell v. State, 720 S.W.2d 526, 532 (Tex.
Crim. App. 1986); Norman v. State, No. 14-11-00433-CR, 2012 WL 4163498, at
12
*18 (Tex. App.—Houston [14th Dist.] Sept. 20, 2012, pet. ref’d) (mem. op., not
designated for publication) (“[A]ny misstatement was harmless because it was
made outside the jury’s presence and could not have influenced its verdict.”).
Based on the record before us, we cannot say that the alleged misstatements
of law had a substantial and injurious effect or influence in determining the jury’s
ultimate verdict. See Tex. R. App. P. 44.2(b).
We overrule appellant’s first issue.
C. Evidentiary Complaints
Appellant challenges several evidentiary rulings. We review a trial court’s
evidentiary rulings under the familiar abuse-of-discretion standard. Henley v.
State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016).
1. DX-46
In his second issue, appellant contends the trial court erred by excluding
Defense Exhibit 46, which is an audio recording of a phone call (occurring one
week after the murder) between Ose’s brother, Mike, and another male, who
appellant identified as a high school friend. In the recording, Mike says that he and
Ose had committed four robberies during the week preceding the shooting and that
Ose was very “aggressive.” Mike also discussed events allegedly occurring during
the shooting, such as: that Ose “took down” appellant, who got out of Ose’s car
and then shot at Ose’s car; that Egbe also shot at Ose’s car; and that Ose managed
to drive off. Appellant contends that this evidence was vital to his defense because
it corroborated appellant’s version of events on the night of the murder.
The State objected to the recording as inadmissible hearsay. See Tex. R.
Evid. 801(d), 802. Appellant responded that the recording was admissible as a
13
statement against the declarant’s interest under rule 803(24), which is the position
he advances on appeal. Tex. R. Evid. 803(24).
Rule 803(24) provides that the following is not excluded by the rule against
hearsay, regardless whether the declarant is available as a witness:
(24) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have
made only if the person believed it to be true because, when made, it
was so contrary to the declarant’s proprietary or pecuniary interest or
had so great a tendency to invalidate the declarant’s claim against
someone else or to expose the declarant to civil or criminal liability or
to make the declarant an object of hatred, ridicule, or disgrace; and
(B) is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in a criminal case as one
that tends to expose the declarant to criminal liability.
Appellant argues that the recording was admissible under this exception
because Mike (the declarant) made a statement against penal interest by admitting
to committing four robberies with Ose in the week preceding the murder.
The Court of Criminal Appeals has explained that statements against penal
interest fall into three general categories:
Some inculpate only the declarant (e.g., “I killed Joe.”); others
inculpate equally both the declarant and a third party, such as a co-
defendant (e.g., “We killed Joe.”); still others inculpate both the
declarant and third party, but also shift blame by minimizing the
speaker’s culpability (e.g., “We robbed the bank, and Dan killed Joe,
the bank teller.”).
Walter v. State, 267 S.W.3d 883, 891 (Tex. Crim. App. 2008).
Statements that are directly against the declarant’s interest and collateral
“blame-sharing” statements may be admissible under Rule 803(24), if
corroborating circumstances clearly indicate their trustworthiness. Id. at 896.
14
The trial court is “obligated to parse a generally self-inculpatory narrative
and weed out those specific factual statements that are self-exculpatory or shift
blame to another.” Id. at 897. “The rule requires courts to separate the dross of
blame-shifting statements from the gold of self-inculpatory and blame-sharing
statements, admitting only the latter.” Id. at 886.
At most, Mike’s statement about committing four robberies with Ose was
admissible because it was a blame-sharing statement that could subject him to
criminal liability and was supported by some corroborating evidence, namely that,
according to Richey, Ose planned to rob appellant. But the remaining portions of
the recording, including Mike’s characterization of Ose as “aggressive” and Mike’s
description of the events on the night of the shooting, were not statements against
Mike’s interest and were thus not admissible under rule 803(24).
To the extent that the trial court erred by not admitting the brief portion of
the recording discussing Mike’s and Ose’s involvement in prior, unrelated
robberies, we conclude that any error is harmless. See Tex. R. App. P. 44.2(b).
Erroneous exclusion of a defendant’s evidence is generally non-constitutional error
unless that evidence “forms such a vital portion of the case that exclusion
effectively precludes the defendant from presenting a defense.” Potier v. State, 68
S.W.3d 657, 665 (Tex. Crim. App. 2002). Appellant testified that Ose robbed him
on the night in question and threatened him with a gun. Appellant testified as to
Ose’s demeanor and to his fear of Ose. Further, Richey testified that Ose said,
approximately two weeks prior to the events in question, “that he wanted to rob
somebody named Victor.”
We conclude that Mike’s excluded recorded statement that he and Ose had
committed four robberies, assuming it was erroneously excluded, did not form
such a vital portion of the case that exclusion prevented appellant from presenting
15
his defense to the jury. See id. at 666. Thus, appellant’s substantial rights were not
affected by any error. See Tex. R. App. 44.2(b). We overrule appellant’s second
issue.
2. Comment on exercise of Miranda rights
In his third issue, appellant argues that the trial court erred in admitting
evidence constituting a comment on appellant’s invocation of his Miranda rights.3
See Wainwright v. Greenfield, 474 U.S. 284, 295 (1986) (commenting on a
defendant’s decision to invoke his right to remain silent after receiving Miranda
warnings violates due process and infringes on the right against self-incrimination).
After law enforcement officers arrested appellant, FBCSO Sergeant Justin
White warned appellant under Miranda in a recorded interview. Sergeant White
testified that appellant acknowledged his rights. Further, and before Sergeant
White asked questions about the murder, appellant signed a written waiver of his
rights, which provided: “Prior to, and during the making of this statement, I
knowingly, intelligently, and voluntarily waive the rights set out in this warning.”
Over appellant’s objection, the State showed the jury a redacted version of the
brief interview. Sergeant White asked appellant if he knew anything about the
shooting, and appellant responded that he had seen it on the news. The record
establishes that appellant then invoked his right to counsel, terminating the
interview. That was the end of the recording. To the extent that appellant
complains of the admission of the recording and Sergeant White’s associated
testimony, we hold that the trial court did not abuse its discretion in allowing this
evidence. By signing the written waiver and briefly speaking with Sergeant White,
appellant waived his post-arrest right to silence as to the limited conversation
shown to the jury up until the time he invoked his right to counsel. Garcia v. State,
3
Miranda v. Arizona, 384 U.S. 436 (1966).
16
126 S.W.3d 921, 924 (Tex. Crim. App. 2004). Sergeant White did not testify
about any statement appellant made after requesting counsel and terminating the
interview.
Appellant complains of two additional questions from the State: (1) during
appellant’s cross-examination, the prosecutor asked if he ever told police “where
[he] put the guns used” in the shooting; and (2) the prosecutor also asked if
appellant had ever told “the prosecutors” that he feared for his life during the
altercation with Ose. Appellant objected to both questions, arguing that the
questions infringed his post-arrest right to remain silent.
Regarding the first question, we are satisfied that the prosecutor inquired
only into appellant’s pre-arrest silence. The question, “did you ever tell the police
where you put the guns used” in the shooting came during a discussion of the
search of appellant’s house, which occurred prior to appellant’s arrest. Appellant
testified that the gun he used to shoot Ose was “along with all of [his] other guns in
a case” in the attic, underneath some insulation. Appellant admitted that he “saw
the police go up there and check the attic.” The prosecutor’s inquiry whether he
told police of the gun’s location was not improper impeachment. See, e.g., Ayers
v. State, 606 S.W.2d 936, 940 (Tex. Crim. App. 1980) (en banc) (op. on reh’g)
(holding that impeachment with pre-arrest silence is proper when the defendant in
a murder case testified that he acted in self-defense and “blacked out,” but did not
assert those facts in his pre-arrest statement to police officers); Marshall v. State,
471 S.W.2d 67, 70 (Tex. Crim. App. 1971) (concluding that impeachment with
pre-arrest silence is proper when the defendant in a murder case waived his right to
remain silent at trial and testified that the homicide was an accident, but failed to
tell the police the homicide was an accident before he was arrested).
17
Regarding the second question, we conclude that appellant did not preserve
any error. During cross-examination, the prosecutor and appellant had the
following exchange:
Q. Now, this is the first time that you have ever told anybody that you
were in fear for your life, correct?
A. Incorrect, ma’am.
Q. Who did you tell?
A. All of my friends and family.
Q. I guess my question was bad.
Nobody, I guess, in -- like, you never told the prosecutors that,
did you?
A. No.
Appellant’s counsel then asked to approach the bench, where he objected.
A defendant must make a timely objection to preserve an evidentiary
complaint on appeal. Tex. R. Ap. P. 33.1(a)(1); Banda v. State, 890 S.W.2d 42, 62
(Tex. Crim. App. 1994). A party must continue to object each time the
objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273 (Tex.
Crim. App. 1999). The failure to do so forfeits any right to complain of the trial
court’s action on appeal. Cockrell v. State, 993 S.W.2d 73, 89 (Tex. Crim. App.
1996). Thus, a defendant may waive a complaint of comment on post-arrest
silence by failing to timely and properly object. Wheatfall v. State, 882 S.W.2d
829, 836 (Tex. Crim. App. 1994); see also Leday v. State, 983 S.W.2d 713, 718
(Tex. Crim. App. 1998); Salazar v. State, 131 S.W.3d 210, 214 (Tex. App.—Fort
Worth 2004, pet. ref’d). Prior to defense counsel’s objection to the complained-of
testimony, appellant had already answered a question about the “first time” he told
anybody that he was in fear for his life on the night of the shooting. Thus, his later
objection was untimely. See Rojas v. State, No. 05-09-00172-CR, 2010 WL
18670242, at *2 (Tex. App.—Dallas Feb. 26, 2010, pet. ref’d) (mem. op., not
designated for publication) (objection to prosecutor’s question, “This is the first
time you’ve ever told this version, isn’t it?” was untimely after defendant
answered, “Yes, sir.”).
Appellant had also testified similarly to the following without objection:
Q. Okay. Now, through this whole time you never called 911, did
you?
A. No, ma’am.
Q. You never called the non-emergency number to the police, did
you?
A. No, ma’am.
Q. You never went back to the scene and said, “Oh, my god. Let me
tell you what happened. I almost died,” did you?
A. No, ma’am.
...
Q. At any point in time after the shooting, Mr. Cuevas, did you tell
[one of appellant’s friends] what had happened?
A. No, ma’am. I only told my mom when I was in Mexico [shortly
after the shooting].
Q. So your mom is the only person who knows what happened?
A. I mean, at that time when I was in Mexico, I told my mother; and
we called my dad; and that’s when we arranged to get a lawyer; and I
was going to turn myself in.
Q. Was that before or after you saw what happened on the news?
A. When I was in Mexico, I looked up the news; and I saw the article.
So I told my mother. I told her.
Q. Okay. Did you tell anybody else?
A. Not that I am aware of. I believe that I told my mother, and we
called my dad, and I told my dad.
Q. You didn’t tell Georgie, your wife?
19
A. No, everybody knows. My friends and family know. They know
what happened that day.
Q. They know what you told them, correct?
A. They know the truth.
Q. Do they know what you told them?
A. Yes, what I told them.
Considering the testimony that was already before the jury and counsel’s
failure to object to the specific complained-of question before appellant answered,
we conclude that the issue has not been preserved for our review. See Dinkens v.
State, 894 S.W.2d 330, 255 (Tex. Crim. App. 1995) (holding objection following
answer untimely); see also Rojas, 2010 WL 670242, at *2.
We overrule appellant’s third issue.
3. Evidence obtained during execution of search warrant
During the search of appellant’s house, the police took photographs of drugs,
scales, plastic baggies, guns, and ammunition. The court admitted these photos at
trial. In his fourth issue, appellant complains that the photos are inadmissible
character-conformity evidence under Texas Rule of Evidence 404(b).
Under rule 404(b), evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character. Tex. R. Evid. 404(b)(1). Such
evidence may be admissible for another purpose, however, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. Tex. R. Evid. 404(b)(2).
Appellant argues that the evidence was improperly offered to prove
appellant’s bad character in order to show that he was a criminal and that he acted
in conformity with his criminal character on the occasion in question. According
20
to appellant, the State did not need the evidence because he did not contest that he
was “engaged in a drug transaction in this case.”
Two bags of marijuana were found in Ose’s car, where he was shot. As part
of its burden to prove appellant’s guilt beyond a reasonable doubt, the State sought
to establish that appellant was a drug dealer, that appellant always carried a
weapon during drug deals, and that the murder took place during, and because of, a
drug deal gone wrong. The evidence introduced from the search of appellant’s
house, which included firearms and additional items of drug-related paraphernalia,
supported the State’s theory. It does not matter that appellant did not “contest” his
involvement in a drug deal; the State is entitled to prove its case as it sees fit. See
Tome v. State, No. 14-21-00373-CR, 2022 WL 14205419, at *12 (Tex. App.—
Houston [14th Dist.] Oct. 25, 2022, no pet.) (mem. op., not designated for
publication) (citing Old Chief v. United States, 519 U.S. 172, 179 (1997) (“[T]he
prosecution is entitled to prove its case by evidence of its own choice, . . . [and] a
criminal defendant may not stipulate or admit his way out of the full evidentiary
force of the case as the Government chooses to present it.”)).
The trial court did not abuse its discretion in overruling appellant’s rule
404(b) objection to the evidence. See, e.g., Prewitt v. State, 133 S.W.3d 860, 864-
65 (Tex. App.—Amarillo 2004, pet. ref’d) (evidence defendant bought drugs from
victim and sold them was admissible to establish motive in murder prosecution).
We overrule appellant’s fourth issue.
4. SX-282A and SX-341P
In his fifth and tenth issues, appellant argues that the trial court erred in
admitting State Exhibits 282A and 341P, both of which were video excerpts of an
already-admitted exhibit, State Exhibit 282. Exhibit 282 was a media download
from appellant’s cell phone and was admitted without objection.
21
To preserve a complaint for appellate review, a party must present the trial
court with a timely request, objection, or motion stating the specific grounds for
the desired ruling if those grounds are not apparent from the context and must also
obtain a ruling. See Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002). For an objection to the admission of evidence to be
timely, the appellant must have objected to the evidence, if possible, before it was
actually admitted. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App.
1991). Failure to object when there was an opportunity to do so generally waives
error. Burt v. State, 396 S.W.3d 574, 577-78 (Tex. Crim. App. 2013).
Appellant did not object when the State offered Exhibit 282 in its entirety.
After Exhibit 282 was admitted, appellant objected only when the State offered
particular video excerpts of Exhibit 282 as discrete exhibits. Because appellant
failed to object to Exhibit 282 when he had the opportunity to do so, he failed to
preserve his appellate complaints to the subsequent admission of Exhibits 282A
and 341P. Gutierrez v. State, 585 S.W.3d 599, 613, 614-15 (Tex. App.—Houston
[14th Dist.] Aug. 20, 2019, no pet.) (appellant waived complaint that portion of
previously admitted exhibit was played to jury when appellant did not object to the
complete exhibit when it was offered); Gonzalez v. State, No. 11-16-00140-CR,
2017 WL 3194459, at *3 (Tex. App.—Eastland July 27, 2017, no pet.) (mem. op.,
not designated for publication); Daugherty v. State, 652 S.W.2d 569, 575-76 (Tex.
App.—Fort Worth 1983, pet. ref’d).
We conclude that appellant did not preserve his challenge to the admission
of Exhibits 282A and 341P. We overrule appellant’s fifth and tenth issues.
D. Jury Charge
In his sixth, seventh, and eighth issues, appellant presents several jury
charge complaints. We first determine whether error exists in the charge and, if
22
there was error, whether sufficient harm resulted from the error to compel reversal.
Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). If charge error
exists, there are two standards of harm depending on whether appellant timely
objected. When, as here, a defendant timely objects to alleged jury-charge error,
the record need only show “some harm” to obtain relief. Alcoser v. State, 663
S.W.3d 160, 165 (Tex. Crim. App. 2022) (citing Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984) (op. on reh’g)). Harm is assessed 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.
1. Burden of proof
In the first part of his sixth issue, appellant argues that the charge “could be
read” to shift the burden to the defense to prove beyond a reasonable doubt that
appellant acted in self-defense. The charge read:
If you find from the evidence beyond a reasonable doubt that at the
time and place in question the defendant did not reasonably believe he
was in danger of serious bodily injury, or that the defendant, under the
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 Oseikhuemen
Omobhude use or attempted use of unlawful deadly force, then you
should find against the defendant on the issue of self-defense.
(Emphasis added.)
The burden remained with the State to disprove self-defense beyond a
reasonable doubt. See Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App.
2018) (State bears burden of persuasion to disprove self-defense beyond a
reasonable doubt). Appellant’s argument is unmeritorious.
23
2. Provocation instruction
In the second part of his sixth issue, appellant challenges the submission of
an instruction on provocation.
Under self-defense law, “a person is justified in using force against another
when and to the degree the actor reasonably believes the force is immediately
necessary to protect the actor against the other’s use or attempted use of unlawful
force.” Tex. Penal Code § 9.31(a). One limitation on the right to self-defense is
the doctrine of provocation, also known as “provoking the difficulty” or
“provoking the attack.” See Elizondo v. State, 487 S.W.3d 185, 196 (Tex. Crim.
App. 2016); Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998). One
cannot provoke an attack and then claim self-defense in responding to it. This
doctrine embodies a concept in criminal law that can act as a total bar against a
defendant’s right to self-defense. Smith, 965 S.W.2d at 512.
A charge on provocation is required when there is sufficient evidence
(1) that the defendant did some act or used some words which provoked the attack
on him, (2) that such act or words were reasonably calculated to provoke the
attack, and (3) that the act was done or the words were used for the purpose and
with the intent that the defendant would have a pretext for inflicting harm upon the
other. Id. at 513. A provocation instruction should be submitted to the jury only
“when there is evidence from which a rational jury could find every element of
provocation beyond a reasonable doubt.” Id. at 514. Our inquiry is whether “a
rational jury could have found provocation beyond a reasonable doubt, viewing the
evidence in the light most favorable to giving the instruction.” Id. Each element is
a fact question and may be established by circumstantial evidence. Id. at 513-19.
The exact words said or action taken by the defendant causing the attack need not
24
be proven to the jury; rather the jury must merely be able to find that there were
some provoking acts or words. Id. at 515.
The charge in this case provided the following instruction on provocation:
You are further instructed as part of the law of this case, and as a
qualification of the law on self-defense, that the use of force by a
defendant against another is not justified if the defendant provoked the
other’s use or attempted use of unlawful force, unless:
(a) the defendant abandons the encounter, or clearly communicates
to the other his intent to do so reasonably believing he cannot
safely abandon the encounter; and
(b) the other person, nevertheless, continues or attempts to use
unlawful force against the defendant.
So, in this case, if you find and believe from the evidence beyond a
reasonable doubt that the defendant, Victor Hugo Cuevas,
immediately before the difficulty, then and there did some act, or used
some language, or did both, as the case may be, with the intent on his,
the defendant’s, part, to produce the occasion for shooting
Oseikhuemen Omobhude, and to bring on the difficulty with the said
Oseikhuemen Omobhude, and that such words and conduct on the
defendant’s part, if there was such, were reasonably calculated to, and
did, provoke a difficulty, and that on such account Oseikhuemen
Omobhude attacked the defendant with deadly force, or reasonably
appeared to the defendant to so attack him or to be attempting to so
attack him, and that the defendant then shot Oseikhuemen Omobhude
with a firearm, in pursuance of his original design, if you find there
was such, then you will find against the defendant on the issue of self-
defense.
On the other hand, if you find from the evidence that the acts done or
language used by the defendant, if any, were not, under the
circumstances, reasonably calculated or intended to provoke a
difficulty or an attack by Oseikhuemen Omobhude upon the
defendant, or if you have a reasonable doubt thereof, then in such
event, the defendant’s right of self-defense would in no way be
abridged, impaired, or lessened, and, if you so find, or if you have a
reasonable doubt thereof, you will decide the issue of self-defense in
accordance with the law on that subject given in other portions of this
25
charge, wholly disregarding and without reference to the law on the
subject of provoking the difficulty.
Appellant argues that there was no evidence to support the submission of an
instruction on provocation.
We assume without deciding that the trial court erred by including the
provocation instruction in the charge. Because appellant timely objected, he is
entitled to a reversal if the record shows that he suffered “some harm” as a result of
the inclusion of the instruction. Almanza, 686 S.W.2d at 181. If including a
provocation instruction was “calculated to injure the rights” of appellant, reversal
and a new trial must be ordered. Wooten v. State, 400 S.W.3d 601, 606 (Tex.
Crim. App. 2013). Neither appellant nor the State has the burden with regard to
showing or proving harm. Elizondo, 487 S.W.3d at 205. We must make our own
assessment as to whether harm occurred. Id. In determining whether appellant
suffered “some harm,” we must look at: (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 record. Almanza, 686 S.W.2d at 171. To say that some harm
occurred, we must conclude that appellant “suffered some actual, rather than
merely theoretical, harm from the error.” See Elizondo, 487 S.W.3d at 205
(quotation omitted).
a. Jury Charge as a Whole
We first consider the entire jury charge. The charge begins by explaining
the indicted offense and defining in the abstract the offense of murder and other
relevant terms. Bypassing consideration of the self-defense section for now, the
charge concludes by explaining the law relating to law of parties, the presumption
of innocence, the State’s burden of proving each and every element of the charged
offense beyond a reasonable doubt, and that the indictment is not evidence of guilt.
26
These correctly drafted sections weigh against a finding of some harm.
In the middle of the charge is a self-defense instruction, which includes the
sentence, “The defendant’s belief that the deadly force was immediately necessary
is presumed to be reasonable if the defendant . . . did not provoke the person
against whom the force was used.”
Immediately after the self-defense instruction is the provocation instruction,
quoted above.
The Court of Criminal Appeals has said that the abstract paragraph is “clear
as a bell,” Reeves v. State, 420 S.W.3d 812, 819 (Tex. Crim. App. 2013), but the
two application paragraphs are incomprehensible. Id. at 818. And, because the
instructions are not understandable, we do not apply the usual presumption that the
jury understood and applied the court’s charge in the way it was written. Id. at
818-19.
In Reeves and Elizondo, the erroneous provoking-the-difficulty charge
immediately followed the charge on self-defense—making it more likely that the
jury’s attention was drawn to the provocation theory in rejecting the defendant’s
claim of self-defense—and was the last substantive instruction in the charge.
Elizondo, 487 S.W.3d at 208; Reeves, 420 S.W.3d at 819. This placement of the
erroneous instruction within the charge, the Court of Criminals concluded, likely
magnified its harm. Elizondo, 487 S.W.3d at 208; Reeves, 420 S.W.3d at 819.
In the present case, the provocation instruction also immediately follows the
self-defense instruction but, significantly, is not the last substantive instruction in
the trial court’s charge. Furthermore, as discussed below, the State did not rely on
a provocation theory.
Although the provocation instruction is unwieldy in its length, complexity,
and coherence, appellant does not indicate any part of it that is legally incorrect.
Nonetheless, we will consider that this first factor weighs slightly in favor of a
27
finding of some harm, given that the Court of Criminal Appeals “denounced” the
similarly worded provocation instruction “in its entirety” in Reeves. Elizondo, 487
S.W.3d at 208 (citing Reeves, 420 S.W.3d at 818).
b. Arguments of Counsel
During the State’s closing argument, the prosecutor did not refer to
provocation even passingly. Appellant’s counsel did, telling the jurors, “So
provocation, there’s nothing, nothing in the evidence whatsoever that shows he
provoked this difficulty causing Ose to pull out the gun.” Given the State’s silence
on the issue, and defense counsel’s argument, it is unlikely that the jury placed any
weight on the provocation instruction. Cf. Reeves, 420 S.W.3d at 820 (“The SPA
argues that, because there was no evidence that appellant provoked the encounter,
the jury must have ignored the erroneous instruction. Not in this case, not with the
prosecutor’s argument.”).
This factor weighs against a finding of some harm.
c. Entirety of the Evidence
Appellant testified to facts that, if believed, could have supported his self-
defense claim. However, other witnesses testified to another set of facts that, if
believed, supported appellant’s conviction for murder. As an appellate court, we
will not weigh in on this fact-specific determination, as that is a function reserved
for a properly instructed jury. See id. We do, however, note that the circumstantial
evidence of appellant’s guilt was substantial. We also note that the charge
properly instructed the jury to decide the issue of self-defense without reference to
the law on provocation, if the jurors believed that appellant did not provoke the
encounter. This factor weighs against a finding of some harm.
28
d. Other Relevant Evidence Contained in the Record
It is relevant to the harm analysis that the provocation instruction potentially
undermined appellant’s sole defensive theory of self-defense. Id. at 820-21.
However, an erroneously included provocation instruction is not necessarily
harmful even when self-defense is the only defensive theory; it simply goes on the
“some harm” side of the scale rather than the “no harm” side. Id. at 821.
Having reviewed the entire record in light of the Almanza factors, we
conclude that the trial court’s inclusion of the provocation instruction was
harmless. The focus of the evidence and argument was on “the credibility of a
man who would shoot someone in the back and come here and say it was self-
defense”—not on a provocation theory. According to the prosecutor, credibility
and the purported reasonableness of appellant’s belief that he was in danger were
the critical inquiries in this case. See, e.g., Benaffane v. State, No. 01-15-00840-
CR, 2017 WL 2117538, at *9 (Tex. App.—Houston [1st Dist.] May 16, 2017, pet.
ref’d) (mem. op., not designated for publication) (“no actual likelihood” that
erroneous inclusion of instruction in charge harmed defendant when the issue was
not a focus in the trial and defense counsel correctly told the jury that the facts did
not support the instruction); accord also Engel v. State, 630 S.W.3d 192, 204 (Tex.
App.—Eastland 2020, no pet.) (erroneous inclusion of provocation instruction did
not result in egregious harm when the State did not rely on provocation); Polk v.
State, No. 13-18-00347-CR, 2019 WL 3721345, at *7 (Tex. App.—Corpus Christi
Aug. 8, 2019, pet. ref’d) (mem. op., not designated for publication) (same).
3. Presumption of reasonableness
As discussed above, in certain instances a defendant is entitled to a
presumption that he reasonably believed the use of deadly force was immediately
necessary; but a defendant is not entitled to such a presumption when he was
29
“otherwise engaged in criminal activity” at the time. See Tex. Penal Code
§ 9.32(b). The jury charge included a statement of the law on this presumption:
The defendant’s belief that the deadly force was immediately
necessary is presumed to be reasonable if the defendant knew or had
reason to believe that the person against whom the deadly force was
used: unlawfully and with force entered, or was attempting to enter
unlawfully and with force, the actor’s occupied habitation, vehicle, or
place of business or employment; unlawfully and with force removed,
or was attempting to remove unlawfully and with force, the defendant
from the defendant’s habitation, vehicle, or place of business or
employment; or was committing or attempting to commit aggravated
kidnapping, murder, sexual assault, aggravated sexual assault,
robbery, or aggravated robbery; and the defendant did not provoke the
person against whom the force was used; and the defendant was not
otherwise engaged in criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance regulating
traffic at the time the force was used.
In the third and final part of his sixth issue, appellant argues, and we agree,
that the presumption of reasonableness was not applicable and should not have
been included in the jury charge because it is undisputed that he was engaged in
criminal activity—namely, a drug deal—when he shot Ose.
When the “evidence conclusively establishe[s] that [the defendant] was
engaged in criminal activity at the time he used deadly force,” the presumption of
reasonableness instruction is “not the law applicable to the case.” Reyna v. State,
597 S.W.3d 604, 607 (Tex. App.—Houston [14th Dist.] 2020, no pet.). If, as is the
case here, the error in the charge was the subject of a timely objection in the trial
court, then reversal is required if there was some harm to the accused from the
error. Almanza, 686 S.W.2d at 171. A reversal is required if the accused has
suffered any actual, rather than theoretical, harm from the error. Arline v. State,
721 S.W.2d 348, 351 (Tex. Crim. App. 1986). If the record does not show actual
harm, the charging error will not result in a reversal of the conviction. See Abdnor
30
v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). With this in mind, we
again turn to the familiar Almanza factors. Almanza, 686 S.W.2d at 171.
Factor one, the error in light of the entire jury charge, weighs against a
finding of harm. The abstract portion of the charge correctly stated the law
regarding the presumption. The application paragraph of the charge did not refer
to the presumption and instead instructed the jurors to find in appellant’s favor if
they found that
it reasonably appeared to [appellant] that his life or person was in
danger and there was created in his mind a reasonable expectation of
fear of death or serious bodily injury from the use of unlawful deadly
force . . . and that acting under such apprehension and reasonably
believing that the use of deadly force on his part was immediately
necessary to protect himself . . . he shot Oseikhuemen Omobhude.
Thus, notwithstanding the inclusion of the presumption in the abstract
portion (which was correctly stated), the application portion of the charge correctly
stated the law regarding self-defense generally without mentioning the
presumption. See Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012)
(the charge’s application paragraphs, not the abstract portion, authorize a
conviction).
Factor two, the state of the evidence, also weighs against a finding of harm.
There was more than sufficient evidence from which the jury could find that
appellant committed murder and did not act in self-defense. As already discussed,
appellant dictated the time and place for the drug deal and arrived, armed, with an
accomplice. He shot at Ose’s car numerous times, following Ose as Ose attempted
to drive away. An eyewitness, Benitez, testified that appellant appeared calm after
the shooting. Appellant and Egbe then fled the scene; upon returning to
appellant’s house, he appeared to high-five or fist-bump Egbe, indicating success
31
or victory. See Aguilar-Motino v. State, No. 01-08-00527-CR, 2009 WL 3321418,
at *3 (Tex. App.—Houston [1st Dist.] Oct. 15, 2009, pet. ref’d) (mem. op., not
designated for publication) (highlighting evidence of defendant’s conduct after
stabbing victim when concluding that jury could reasonably decide that defendant
committed aggravated assault and reject self-defense claim). The only evidence
that Ose threatened appellant came from appellant himself and Egbe, and the jury
was free to disbelieve that self-serving testimony. See Sifuentes v. State, 615
S.W.3d 914, 919 (Tex. Crim. App. 2021).
Factor three, the jury arguments, is the focus of appellant’s complaint. He
points to the prosecutor’s statements during closing argument:
Now, like so many things that have happened in this trial with
Mr. Cuevas, he wants to have it both ways, right? He wants to come
in here and look nice and pretty and say poor me and kind of cry. I’m
not a murderer. I never meant to murder anybody. That’s what he
said. Right?
Problem is he can get up there and tell you guys: I didn’t mean
to do it. I’m not that kind of a person. But just in case y’all don’t
believe that, I did it in self-defense. Right?
He doesn’t get that right. Y’all have to believe the defendant
did what he did, right?
...
Mr. Elliott talked about the presumption a little bit and I don’t
want you guys to get confused because it is kind of a confusing area
of the law, because you heard a lot about that, right? Victor Cuevas is
a victim of aggravated robbery. Victor Cuevas -- Mr. Cuevas is a
victim of robbery.
Here’s the problem. He cannot use deadly force to protect
against the imminent commission of aggravated robbery if he’s also
committing another crime. You can’t do it. And we know at the very
least, right, he’s committing aggravated assault. Deadly conduct,
illegal possession of a firearm, delivery of marijuana, possession of
marijuana, the list goes on. Right?
32
So he doesn’t get it. He doesn’t get there. There was no
imminent commission of aggravated robbery because if taking his
story as the truth, means the robbery was over. I don’t think it’s the
truth, but we’ll just give him the benefit of the doubt. Right?
If it’s over, he doesn’t get self-defense. Well, let’s assume it’s
still going on in some world. He doesn’t get it because he’s
committing other crimes. (Emphasis added).
We agree with appellant that the prosecutor misstated the law regarding the
presumption of reasonableness, by telling the jury that appellant’s commission of
criminal activity precluded his self-defense claim rather than simply negating the
presumption of reasonableness. This factor facially weighs in favor of a finding of
harm.
We note, however, that appellant’s counsel directly addressed the
prosecutor’s misstatement in closing argument:
And unlike what the prosecution told you back in voir dire that
if you’re committing a crime, you can’t use self-defense. And y’all
remember back then I was bouncing out of my chair like a Jack-in-
the-Box screaming, saying that’s not the law.
Guess what? I told you right. It’s not the law. It does factor
into a presumption, an assumption if you will. An instance in some
situations in which you can sort of start in a different place other than
the race line where everybody’s at the same place.
...
We talked about -- back in voir dire, about the Castle Doctrine
and how it gives you a presumption, if certain things are applicable.
They’re not applicable in this case, but because it’s here we’re going
to talk about it. You can get a presumption of reasonable, otherwise
your actions in shooting are presumed to be reasonable, which is like
a head start.
Okay?
It’s not starting on the same line, it’s an assumption. You can
assume that the deadly force is okay if certain things happen. And
33
those certain things are -- and the list is all there -- basically you’ll see
them in the list and y’all can go back and read them.
Is if like you’re in your home or your car or something like that,
not doing anything illegal, someone tries to come in on you, you can
shoot them dead. And the cops come out and go: Is that what
happened? Yep. Okay.
We’re going to presume it’s good.
And the instructions to the jury will be the same thing. We’re
going to assume that there’s no problem, everything is fine. That’s a
presumption. That’s what this is explaining to you here, how a
presumption works. I’m telling you it doesn’t apply because Victor
Cuevas was selling dope.
...
I’m not saying that you’re supposed to be applying the
presumption. I’m telling you he was committing a crime. We’re not
hiding that from you. So he doesn’t get the presumption.
Counsel’s argument ameliorated, at least to some degree, the prosecutor’s
misstatement. Accord Pelcastre v. State, 654 S.W.3d 579, 589-90 (Tex. App.—
Houston [14th Dist.] 2022, pet. ref’d) (when defense counsel corrected previous
misstatement, the parties’ jury arguments did not weigh for or against finding of
harm). Nonetheless, we agree that factor three slightly weighs in appellant’s favor.
Finally, our review of the record does not reveal other information, such as
jury notes indicating the jury was confused about the charge, for the fourth factor.
In light of all four factors, we conclude that the complained-of error was
harmless. It is true that the court’s charge erroneously included the presumption of
reasonableness and, further, that the prosecutor erroneously stated the law
regarding the presumption. But defense counsel corrected the prosecutor’s
misstatement, and the court repeatedly instructed the jurors that they were to
follow the law as set out in the jury charge. The charge, as written, permitted the
jury to find in favor of appellant’s self-defense claim regardless of the applicability
34
or inapplicability of the presumption of reasonableness. The charge also permitted
the jurors to find against appellant’s self-defense claim if, for instance, they did not
believe appellant’s apprehension of fear was reasonable, regardless of the
applicability or inapplicability of the presumption of reasonableness.
At most, appellant has identified purely theoretical, not actual, harm from
the erroneous inclusion of the presumption instruction in the abstract portion of the
charge. A jury is presumed to have understood and followed the court’s charge,
absent evidence to the contrary. Crenshaw, 378 S.W.3d at 467. The risk that a
rational juror, following the instructions in the jury charge, would have convicted
appellant on the basis that he was not entitled to a self-defense theory at all is not
“remotely significant.” See French v. State, 563 S.W.3d 228, 237-38 (Tex. Crim.
App. 2018) (concluding that there was no harm resulting from jury charge error).
We overrule appellant’s sixth issue.
4. Refusing defense of third party instruction
In his seventh issue, appellant argues that the trial court erred by excluding
from the charge an instruction on the defense of a third party. According to
appellant, “[i]f the jury believed Egbe killed Omobhude, there was no charge
language which would allow the jury to acquit Victor if it believed Egbe was
shooting in self-defense or defense of Victor.”
The “defense of third person” theory does not apply to appellant’s
prosecution in the manner he contends. The defense is stated in Penal Code
section 9.33, which provides:
A person is justified in using force or deadly force against another to
protect a third person if:
(1) under the circumstances as the actor reasonably believes
them to be, the actor would be justified under Section 9.31 or
35
9.32 in using force or deadly force to protect himself against the
unlawful force or unlawful deadly force he reasonably believes
to be threatening the third person he seeks to protect; and
(2) the actor reasonably believes that his intervention is
immediately necessary to protect the third person.
Tex. Penal Code § 9.33.
This is a defense of confession and avoidance, and it applies when the
defendant who is charged with the use of force or deadly force, here appellant,
claims to have used that force to protect a third person against an unlawful use of
force threatening the third person. See Battles v. State, No. 14-15-00775-CR, 2017
WL 89401, at *4 (Tex. App.—Houston [14th Dist.] Jan. 10, 2017, pet. ref’d)
(mem. op., not designated for publication). “[A] defendant is justified in defending
a third person if, under the circumstances as the defendant reasonably believes
them to be, the third person would be justified in defending himself.” Henley v.
State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016). But, “[w]here there is no
evidence that the deceased was making an attack or threatening an immediate
attack upon a third party but was directed only toward appellant, the issue of
defense of third parties is not raised.” Constancio v. State, 643 S.W.2d 153, 156
(Tex. App.—Austin 1982, no pet.).
Appellant does not argue that he used deadly force to protect Egbe or
another third person from the unlawful use of deadly force. Nor is there evidence
that appellant used deadly force to protect any third persons. There is evidence
that appellant fired his gun multiple times at Ose while chasing Ose’s car, as Ose
was driving away. It is undisputed that Ose’s gun had not been fired.
As there is no evidence to support the instruction, the trial court did not err
in omitting it from the charge. See Kennedy v. State, 193 S.W.3d 645, 653 (Tex.
App.—Fort Worth 2006, pet. ref’d).
36
We overrule appellant’s seventh issue.
5. Inclusion of law of parties instruction
In his eighth issue, appellant argues that the trial court erred by instructing
the jury on the law of parties. According to appellant, if the jury had found that
Egbe, not appellant, killed Ose, then it was error to instruct the jury that it could
find appellant guilty of murder under the law of parties. Appellant says there was
no evidence that appellant acted with the intent to assist in Egbe’s murder of Ose
or that appellant aided or attempted to aid that offense. Alternatively, appellant
contends that, even if the evidence supported a law of parties instruction, the
court’s charge was wrong because the instruction was not included in the
application section.
A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both. Tex. Penal Code § 7.01(a). A person is
criminally responsible for an offense committed by the conduct of another if while
“acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the
offense.” Id. § 7.02(a)(2).
If there is sufficient evidence to support an appellant’s guilt acting alone,
however, any error in submitting an instruction on the law of parties is harmless.
Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986); see also Magana v.
State, No. 11-18-00123-CR, 2020 WL 2214214, at *4 (Tex. App.—Eastland May
7, 2020, no pet.) (mem. op., not designated for publication). As we have held
above with regard to appellant’s fourteenth issue, we conclude there is more than
sufficient evidence to support a guilty verdict against appellant based on his
conduct alone, and therefore any error in submitting a law of parties instruction is
37
harmless. As discussed above, the forensic evidence, appellant’s admission to
shooting Ose, witness testimony establishing that appellant repeatedly fired his gun
at Ose while following or chasing Ose’s car, and appellant’s flight from the scene
all support the jury’s verdict under the theory that appellant shot and killed Ose.
Appellant has not shown that he was harmed by the law of parties instruction.
E.g., Baker v. State, No. 14-08-00047-CR, 2009 WL 838257, at *4-5 (Tex. App.—
Houston [14th Dist.] Mar. 31, 2009, pet. dism’d, untimely filed) (mem. op., not
designated for publication); Black v. State, 739 S.W.2d 638, 642-43 (Tex. App.—
Dallas 1987, no pet.) (although prosecutor referred to law of parties in voir dire
and closing, any error in charging jury on law of parties was harmless, where
State’s argument focused on defendant’s guilt as a principal and evidence was
sufficient to convict defendant under that theory).
We overrule appellant’s eighth issue.
E. Constraints
In his ninth issue, appellant argues that the trial court violated his
constitutional rights by revoking his bond and placing him in handcuffs, in view of
the jurors, after the guilty verdict was announced. The jurors were then dismissed
for the remainder of the day, with an instruction to return the following morning to
begin the punishment phase. There is no indication that appellant was handcuffed
at any other point during either the guilt-innocence phase or the punishment phase.
The United States Supreme Court has held that the appearance of a
defendant in shackles before a jury during a trial may violate the defendant’s Fifth
and Fourteenth Amendment rights to due process. Deck v. Missouri, 544 U.S. 622,
629-34 (2005). The court reasoned that “[v]isible shackling undermines the
presumption of innocence and the related fairness of the factfinding process[,] . . .
can interfere with the accused’s ability to communicate with his lawyer” and
38
“participate in his own defense,” and “affronts the dignity and decorum of judicial
proceedings that the judge is seeking to uphold.” Id. at 630-31 (internal quotations
omitted).
In Deck, the defendant objected to being shackled during the guilt-innocence
phase of trial. At least two of our sister courts have held that shackling after guilt-
innocence or during the punishment phase does not implicate the same concerns
present in Deck. See Jones v. State, No. 09-15-00092-CR, 2015 WL 6998971, at
*4 (Tex. App.—Beaumont Nov. 12, 2015, pet. ref’d) (mem. op., not designated for
publication) (“[W]e conclude that the shackling of Jones during the punishment
phase would not undermine the presumption of innocence.”); Lewis v. State, 866
S.W.2d 272, 277 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (“It must be
noted that the only time the jury saw appellant in the custody of the bailiff was
after the jury had made its decision. There is nothing in the record to show that
appellant was restrained by handcuffs or shackles. Therefore, appellant’s right to
the presumption of innocence terminated after she was found guilty of murder.”).
We tend to agree with our sister courts that appellant’s handcuffing in court
after the jury found him guilty did not violate his constitutional rights. Regardless,
this is not an instance of prolonged constraint but rather a brief instance at the
conclusion of the day’s proceedings and after the jury found appellant guilty.
Although a handcuffed or chained defendant should not be intentionally brought
into court in the presence of the jury, it is not unreasonable for state officers to
handcuff a defendant who is being transported to and from the courtroom.
Swanson v. State, 722 S.W.2d 158, 162-63 (Tex. App.—Houston [14th Dist.]
1986, pet. ref’d). It is common for an accused to be inadvertently seen by jurors
for short periods of time while he is under physical restraints. Burleson v. State,
646 S.W.2d 646, 646 (Tex. App.—Fort Worth 1983, no pet.). A brief and
39
fortuitous encounter of the defendant in handcuffs by jurors is not inherently
prejudicial and requires an affirmative showing of prejudice by the defendant. Id.;
see also Swanson, 722 S.W.2d at 162-63; Garcia v. State, 634 S.W.2d 888, 893
(Tex. App.—San Antonio 1982, no pet.).
On this record, we conclude that placing appellant in handcuffs for the brief
period of time after the jury found him guilty and before the jury was dismissed
does not constitute a violation of his due process rights. Rather, the jurors
reasonably could have concluded that, after being found guilty, appellant was to be
transported to jail and was handcuffed accordingly. See Swanson, 722 S.W.2d at
162-63. There is nothing in the record to affirmatively establish any prejudice
resulting from this brief instance. Accordingly, we overrule appellant’s ninth
issue.
F. Jail Records
In his eleventh issue, appellant complains that the trial court erred in denying
his motion for mistrial during the prosecutor’s closing argument in the punishment
phase. We review a trial court’s denial of a motion for mistrial under an abuse of
discretion standard. Archie v. State, 340 S.W.3d 734, 738-39 (Tex. Crim. App.
2011).
Prior to punishment proceedings beginning, the State indicated that it
intended to introduce appellant’s disciplinary records from jail. Appellant
objected, arguing that the State failed to properly give notice of any extraneous
crimes and that the admission of the records violated appellant’s constitutional
right to confront any witnesses against him. The court overruled appellant’s
objection, allowing the records to be admitted but granting appellant a running
objection to the jail records.
40
During closing argument, the prosecutor, referencing the disciplinary
records, told the jury:
While he’s in and out of jail every time he does not follow the
rules of the court. Seven times, refuses to obey an order of the court.
Three times, killing or assault. Two times, possessing contraband.
Appellant did not object at this point, instead relying on his running
objection to the admission of the jail records. After the jury was dismissed for
deliberations, appellant moved for a mistrial. Counsel argued:
The prosecutor got up there in front of this jury and said that three
times this defendant was killing or assaulting an officer. It should
have never been in. It’s a constitutional dimension and she
exponentiated it a hundred times over what should have never been
placed into evidence.
The trial court denied the motion for mistrial. On appeal, appellant argues
that the prosecutor made a “deliberately false misleading statement” because she
knew that appellant did not kill anyone in jail.
Appellant’s complaint on appeal—that the prosecutor deliberately
misrepresented the content of the jail records—does not comport with his
complaint at trial—that the jail records were inadmissible due to constitutional
concerns. Because appellant did not preserve his appellate complaint, we overrule
appellant’s eleventh issue. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim.
App. 2009) (whether a party’s particular complaint is preserved depends on
whether the complaint on appeal comports with the complaint made at trial).
G. Improper Argument
In his twelfth issue, appellant argues that the court erred in denying his
motion for mistrial on a second ground—the prosecutor’s improper punishment
jury argument.
41
“The purpose of closing argument is to facilitate the jury in properly
analyzing the evidence presented at trial so that it may arrive at a just and
reasonable conclusion based on the evidence alone, and not on any fact not
admitted in evidence.” Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App.
2019) (internal quotation omitted). “Proper jury argument includes four areas:
(1) summation of the evidence presented at trial, (2) reasonable deduction drawn
from that evidence, (3) answer to the opposing counsel’s argument, or (4) a plea
for law enforcement.” Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App.
2000). A proper plea for law enforcement may include arguing the relationship
between the jury’s verdict and the deterrence of crime in general, arguing that
juries should deter specific crimes by their verdicts, and arguing the impact of the
jury’s verdict on the community. See Borjan v. State, 787 S.W.2d 53, 57 (Tex.
Crim. App. 1990).
While a prosecutor may make a plea for law enforcement, she may not, in
contrast, “ask members of the jury to place themselves in the shoes of the victim.”
Boyington v. State, 738 S.W.2d 704, 709 (Tex. App.—Houston [1st Dist.] 1985, no
pet.) (citing United States v. Cook, 592 F.2d 877 (5th Cir. 1979); Chandler v. State,
689 S.W.2d 332 (Tex. App.—Fort Worth 1985, no pet.)). Doing so essentially
invites the jurors to abandon their objectivity. Brandley v. State, 691 S.W.2d 699,
712 (Tex. Crim. App. 1985).
In determining whether a prosecutor’s statements were improper, we
consider the remarks in the context in which they appear, examining the “entire
argument, not merely isolated sentences.” Robbins v. State, 145 S.W.3d 306, 314-
15 (Tex. App.—El Paso 2004, pet. ref’d).
42
During closing argument, the prosecutor said:
And from what you have seen from this defendant, I think it’s
probably pretty clear to all of you that there’s just not anything
redeeming about him. And it is scarier from what we have seen that
he is so young and already doing so many bad things. He’s chosen
not to get better but to get worse. He has chosen a life of crime.
Right?
Kill or be killed is the life he lives. [Appellant] does not care
about people in our society.
Take it out of just Ose’s life, right, if that’s enough for you.
Then when you go -- you probably have already thought of this, right?
You go run errands in the evening time, when you’re going out to eat
with one of your friends or having some drinks, at any given moment
if this defendant is out in our community Ose could be you.
[Defense Counsel]: Objection, Judge, invading the -- placing the jury
in the shoes, Judge. That’s improper jury argument.
THE COURT: Overruled.
[Prosecutor]: At any given moment that night, July the 14th of 2017,
any of those other families, small children, people out on date night,
any of those people could have just as easily been Ose.
So that’s the question you guys have to answer, right? Is that a
risk we want to take?
Is the defendant living in prison safer for us or do we want to
take a chance on him and let him out? Because he’s had I don’t know
how many chances now. I don’t know. Every time he gets out he
does something else. I don’t know how to fix that except to keep him
in.
(Emphasis added.)
Focusing on the comment that the victim “could be you,” appellant argues
that the prosecutor urged the jurors to abandon their objectivity. However, when
viewed in the context of the whole argument, we conclude that the prosecutor’s
comments constitute a permissible plea for law enforcement. We find the
prosecutor’s argument akin to a statement we analyzed in Ayala:
43
PROSECUTOR: Ladies and gentlemen, this is not a case about Jesus
Ayala anymore as much as it is about a case about what kind of
society you want to live in.
DEFENSE COUNSEL: Objection, Your Honor, that’s improper.
THE COURT: Overruled.
PROSECUTOR: This is a case about what you want to allow on the
streets of Houston. It is a case about what wild and crazy story
someone can come in and tell a jury and they’ll accept. And when
you pass judgment on why there are bad people out there, you can
look back on this case. You decide today what kind of society you
want to live in, and what—
DEFENSE COUNSEL: Judge, I’m going to renew my objection.
That’s improper, talking about societal [sic], objection.
THE COURT: Overruled.
PROSECUTOR: You decide. And I submit to you that you’ll never
pull into a gas station again without thinking about Jesus Ayala, never
again. I know I won’t.
DEFENSE COUNSEL: Objection, Your Honor, that’s improper.
THE COURT: Overruled.
PROSECUTOR: And I hope you also think of Carmen, and her
children, and Juan, and the justice they’re entitled to.
DEFENSE COUNSEL: Your Honor, that is improper, and I’m going
to continue to object.
THE COURT: Overruled.
Ayala v. State, 267 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.] 2008, pet.
ref’d). We held that the prosecutor’s comment that the jurors would “never pull
into a gas station again without thinking about [the defendant],” who murdered the
decedent in a gas station parking lot, was properly considered a plea for law
enforcement “when viewed in light of the immediately preceding and subsequent
remarks.” Id. at 435. Likewise, we hold that the prosecutor’s comments in this
44
case fell within the bounds of proper jury argument, and we overrule appellant’s
issue. See id.H. Prosecutorial Misconduct
In his thirteenth issue, appellant argues that the cumulative effect of the
prosecutor’s misconduct, described in various sections above, deprived appellant
of his rights to due process and a fair trial.
Multiple errors may be harmful in their cumulating effect on the defense
even if each error would be harmless standing on its own. Chamberlain v. State,
998 S.W.2d 230, 238 (Tex. Crim. App. 1999). The mere existence of multiple
errors, however, does not warrant reversal unless they operated in concert to
undermine the fundamental fairness of the proceedings. Estrada v. State, 313
S.W.3d 274, 311 (Tex. Crim. App. 2010). If the individual claims of error lack
merit, then there is no possibility of cumulative error. Gamboa v. State, 296
S.W.3d 574, 585 (Tex. Crim. App. 2009); Chamberlain, 998 S.W.2d at 238; see
also Murphy v. State, 112 S.W.3d 592, 607 (Tex. Crim. App. 2003) (“Because we
have found little or no error in the above-alleged points, there is no harm or not
enough harm to accumulate.”).
Examining the record as a whole, we conclude that the alleged instances of
misconduct did not undermine the reliability of the fact-finding process and did not
deprive appellant of a fundamentally fair trial. Cf. Rogers v. State, 725 S.W.2d
350, 358-61 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (involving
“pronounced and persistent” misconduct by prosecutor, who repeatedly made side-
bar comments and suggested inflammatory facts that lacked evidentiary support).
As discussed at length above, the complaints appellant makes on appeal either lack
merit or did not result in harm. Contrary to appellant’s contention, we do not
determine that the prosecutor’s errors resulted in a fundamentally unfair trial. See
45
Murphy, 112 S.W.3d at 607; Castruita v. State, 584 S.W.3d 88, 114 (Tex. App.—
El Paso 2018, pet. ref’d); see also Aguilar v. State, No. 04-20-00056-CR, 2021 WL
2668834, at *5 (Tex. App.—San Antonio June 30, 2021, no pet.) (mem. op., not
designated for publication); Guajardo v. State, No. 13-18-00246-CR, 2021 WL
1047057, at *9 (Tex. App.—Corpus Christi Mar. 18, 2021, no pet.) (mem. op., not
designated for publication).
We overrule appellant’s thirteenth issue.
Conclusion
Having reviewed the record and overruled all of appellant’s dispositive
issues, we affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Jewell.
(Christopher, C.J., dissenting)
Publish — Tex. R. App. P. 47.2(b).
46