Abdul-Rahman Khan v. the State of Texas ( 2024 )

Reversed and Remanded in Part; Affirmed in Part and Memorandum
Opinion filed October 8, 2024
In The
Fourteenth Court of Appeals
NO. 14-23-00231-CR
ABDUL-RAHMAN KHAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1513777
MEMORANDUM OPINION
A jury convicted appellant Abdul-Rahman Khan of murder and sentenced
him to serve 50 years in prison and assessed a $10,000 fine. See Tex. Penal Code
§ 19.02. Appellant appeals his conviction in multiple issues. In his first issue
appellant argues that the trial court abused its discretion when it denied his request
for the inclusion of a self-defense instruction in the jury charge. We overrule this
issue because there was no evidence of appellant’s subjective intent at the time he
shot and killed the complainant, Peter Pina. In his second issue appellant argues
that the State committed prosecutorial misconduct when it refused to adhere to an
alleged agreement regarding the inclusion of a self-defense instruction in the jury
charge. We overrule this issue because the record is devoid of any evidence of an
agreement between the parties regarding admission of extraneous offense evidence
or the inclusion of a self-defense instruction in the jury charge. Appellant argues
in his third issue that the State again committed prosecutorial misconduct when,
during the punishment phase of appellant’s trial, it questioned a defense witness
about the teachings of Islam related to the commission of murder. We overrule
this issue because appellant failed to preserve it in the trial court. Finally,
appellant argues in his fourth issue that the trial court erred when it assessed costs
against appellant based on a statute that was not in effect at the time the offense
was committed. We sustain this issue and reverse the part of the court’s judgment
that improperly assessed court costs and remand to the trial court for proper
calculation of court costs.
BACKGROUND
The Electric Chair was a tattoo parlor located on Richmond Avenue in
Houston, Texas. In addition to general signage identifying the type of shop, The
Electric Chair had a sign posted at the entrance prohibiting the carrying of
handguns. Inside the Electric Chair there were several rooms including a cash
room, computer room, and a sterilization room. There were signs at the door into
the sterilization room prohibiting access to customers. In addition to the rooms
mentioned above, there were tattooing areas separated by half-walls.
Several people were working at The Electric Chair late in the evening of
June 14, 2016. Among them was the complainant, a piercer. Others working that
night were Jose Ramos, Carlos Lopez, and Charlie Ramirez, all tattoo artists.
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Lopez was tattooing Ramirez’s brother-in-law, Adam Kiscadon. Simultaneously,
Ramirez was tattooing his sister, Kiscadon’s wife. Ramirez testified that since
there was no security at the shop, he and the other workers paid attention to what
was going on and the people entering the shop.
About 11:00 p.m. appellant and a friend entered the tattoo parlor.
Appellant’s friend was interested in a tattoo. Ramos talked with appellant’s friend
and took him into the shop’s computer room to discuss designs for the tattoo.
While this was going on appellant variously wandered about the shop looking at
the artwork posted on the walls or sat in the waiting area at the front of the shop.
During his wanderings appellant approached Lopez while he was tattooing Adam
Kiscadon. Lopez described appellant as already upset when he approached him
and asked about getting a tattoo. Lopez denied that there were any arguments with
appellant that night before the shooting. The security camera footage of the
waiting area at the shop showed appellant pull a handgun out of his pants and hold
it out in front of him. Up to this point, appellant had not caused any disturbances.
A couple entered the shop and the complainant took them into a room where
he gave the female what appears to be a nose piercing. As the couple exited the
shop, appellant got up and wandered into the back of the shop. Soon thereafter,
Ramirez heard the complainant say: “Come on buddy, you got to get out of here.”
Ramirez stood up and he saw the complainant and appellant in the sterilization
room. Appellant was sitting on a countertop inside the sterilization room, a small
room customers were not supposed to enter. The complainant repeated his
admonition to appellant and he gave Ramirez a “subtle nod,” a sign to come and
assist him with appellant.
Ramirez exited his tattoo stall and moved toward the sterilization room. He
saw the complainant talking to appellant, who was beginning to dismount from the
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countertop. As Ramirez came closer, he did not hear the complainant yell or
scream at appellant. Ramirez also did not see the complainant touch appellant,
slap him, or punch him. Ramirez also did not see the complainant point a gun or
knife at appellant. According to Ramirez, the complainant did not have a weapon
of any kind. Ramirez moved into the sterilization room and came up behind
appellant in an attempt to get him in a full nelson wrestling hold and move him out
of the shop through the backdoor, which automatically locks when it closes.
Ramirez was successful at getting a grip on appellant’s left hand. Ramirez grabbed
appellant’s long hair with his right hand, but he was not able to restrain appellant’s
right hand. The complainant was in front of appellant and Ramirez. Appellant
managed to keep his right hand free by sliding out from under Ramirez. As
Ramirez and appellant struggled, all three moved into the small hallway outside the
sterilization room. Appellant then managed to use his free right hand to draw his
handgun and shoot the complainant once in the chest. Ramirez explained that
when appellant fired, he held the handgun “at a 90-degree angle at chest length.”
At this point, Ramirez grabbed at the handgun, and they started falling backwards.
A second shot went off right by Ramirez’s head as they fell to the floor. The two
men continued to struggle on the floor. Ramirez managed to get control of the
handgun and slid it down the hallway toward the front of the shop. Kiscadon then
joined the fray, but appellant continued to struggle. Ramirez grabbed a pair of
brass knuckles from his tattoo stall and hit appellant with them. Even though he
was mostly subdued, appellant continued to struggle to get out from under
Kiscadon until the police arrived on the scene.
The complainant was pronounced dead at the scene. An autopsy was
conducted on the complainant’s body. The autopsy confirmed that the
complainant’s death was caused by a single gunshot wound to the upper right side
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of the complainant’s chest. The autopsy also revealed gunpowder stippling 1 in the
vicinity of the gunshot wound which meant that the complainant was between six
inches and two feet of the handgun when it fired, with the assistant medical
examiner clarifying that it was probably “closer to the 2 feet end.”
During appellant’s trial, appellant’s counsel spent much time on Ramirez’s
actions that night. During his cross-examination appellant’s defense counsel
questioned Ramirez about whether the complainant “had [appellant] by the
shoulder.” Ramirez responded “I know at one point in time when I looked back
there, I seen this arm, and I don’t know if it was a suggestive tap that he go, or
anything. But I remember seeing arms like this and him pointing, and I turned
around and got a view of it and him saying, ‘Come on buddy.’ I heard it twice.”
Defense counsel continued focusing on the events leading up to the shooting:
Defense Counsel: So it’s your testimony here today that when [the
complainant] was face-to-face with [appellant],
that there was essentially no conflict, right?
Ramirez: I don’t know. I wasn’t in the room the entire time.
Defense Counsel: Okay. So there could have been physical contact
and fighting, you just wouldn’t have seen it?
....
Ramirez: When I walk in the room, [appellant] was already
coming off the table turning towards [the
complainant]. So I have no idea what’s going on.
Defense Counsel: Right. [The complainant] was grabbing
[appellant] and [appellant] was, to use your words,
shrugging him off, right?
1
The assistant medical examiner testified that stippling is the name given to the scratches
on the surface of skin caused when unburnt gunpowder particles strike the skin. She explained
that the closer a gun is to the skin surface when it is fired, the area of stippling is more compact.
She continued that the further away the gun is when it is fired, there is more dispersion of the
unburnt gunpowder to spread out causing a more dispersed stippling pattern. She described the
stippling pattern on the complainant’s skin as “being more spread out.”
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Ramirez: I wouldn’t see [the complainant] grabbing him.
[The Complainant] is a very suggestive person.
He’s a bouncer. He deals with drunk people all the
time. I’ve been to the bar he works at. He’s pretty
much the person – at one point the most passive
person. So I wouldn’t see [the complainant]
crossing that line.
Defense Counsel: Okay. So I lost you. Was it a, yes, you saw him
being physical with [appellant] or, no, you did not
see him being physical with [appellant]?
Ramirez: I seen his arm in an area where he might have
touched him.
Defense Counsel: Uh-huh.
Ramirez: No physicality.
Appellant’s cross-examination continued after a bench conference with
appellant’s counsel asking Ramirez if he was “saying that when you lost sight of
[appellant], that –.” Ramirez interjected at this point that the complainant “did not
have hold of him.” Ramirez then clarified that the complainant “did not have hold
of [appellant] when I lost sight of him.” Appellant’s cross-examination continued:
Defense Counsel: Okay. And then when you gained sight again, you
made a comment before we had a recess about
how [the complainant] could have been physical
with [appellant]. What did you mean by that?
Ramirez: Not physical; jerking, more of a suggestive path.
It was more of a – I wouldn’t say he was grabbing
hold, more of a suggestive path to go on.
Defense Counsel: Okay. And when does the shrugging off start?
Ramirez: Like, he shrugging him off because he’s spinning
off the table. You can kind of see it. I’m walking
in the room, he’s kind of got this motion of
shrugging his hand off. Just like when we were
standing there and I was where [the complainant]
was and I had my hands like this, there’s a little
motion where I seen [appellant] kind of shrug his
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shoulder as he’s standing up.
Defense Counsel: So then you would agree with me that [the
complainant] was placing his hands on [appellant],
right?
Ramirez: I mean, I’m a very aware person. I can tell when
someone is beside me. And if somebody is beside
me, I might shrug like, get the fuck away from me,
even though they are not touching me. So I can’t
really say. In the vicinity and my line of eyesight,
it’s a possibility [the complainant] could have been
touching him. It’s a possibility that he could have
just shrugged him off.
Defense Counsel: So that’s a yes, right?
Ramirez: When I walked in there, I seen a little shrug
motion.
Defense Counsel: Uh-huh.
Ramirez: There’s a possibility [the complainant] could have
been touching him, or had touched him in the
quick second that I walked around the corner.
According to Ramirez, it was at this point in time that he began his effort to place
appellant in a full nelson wrestling hold to escort him out of the tattoo parlor.
From this point in time, Ramirez did not see the complainant punch or strike
appellant. In Ramirez’s opinion, once he began struggling with appellant, it would
have been impossible for the complainant to hit appellant because everything
happened so quickly. Ramirez also testified during re-direct that if someone had
punched appellant as they moved out of the sterilization room, Ramirez would
have felt it. Ramirez continued that he felt no such force.
After the State rested, appellant did not testify, nor did he call any witnesses
to testify. The jury found appellant guilty. After hearing the evidence admitted
during the punishment phase of appellant’s trial, the jury assessed his punishment
at 50 years in prison and a $10,000 fine. This appeal followed.
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ANALYSIS
I. The trial court did not abuse its discretion when it denied appellant’s
requested self-defense instruction.
It is a defense to prosecution if a person’s conduct is justified by Chapter 9
of the Texas Penal Code. Tex. Penal Code § 9.02. Under Chapter 9, one generally
is justified in using force against another when and to the degree one reasonably
believes the force is immediately necessary to protect oneself against another’s use
or attempted use of unlawful force. Id. § 9.31(a). When the force in question is
deadly,2 the person is justified in using such force in self-defense if the above test
is met, and the person reasonably believed that deadly force was immediately
necessary to protect himself against the other’s use or attempted use of unlawful
deadly force. Id. § 9.32(a). Appellant argues in his first issue on appeal that the
trial court abused its discretion when it denied his requested self-defense
instruction. We disagree.
A defendant is entitled to a jury instruction on self-defense when requested,
if the issue of self-defense is raised by the evidence, “whether that evidence is
strong or weak, unimpeached or contradicted, and regardless of what the trial court
may think about the credibility of the defense.” Gamino v. State, 537 S.W.3d 507,
510 (Tex. Crim. App. 2017). When reviewing a trial court’s denial of a request for
a self-defense instruction, we view the evidence in the light most favorable to the
defendant’s requested submission. Id. A trial court errs in denying a self-defense
instruction if there is some evidence, from any source, when viewed in the light
most favorable to the defendant, that will support the elements of self-defense. Id.A reviewing court must, however, consider the plausibility of the evidence raising
2
“Deadly force” is force that is intended or known by the actor to cause, or in the manner
of its use or intended use is capable of causing, death or serious bodily injury. Tex. Penal Code §
9.01(3).
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the defense. Lozano v. State, 636 S.W.3d 25, 29 (Tex. Crim. App. 2021). We
review the trial court’s decision to deny a defensive issue in a jury charge for an
abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App.
2000).
In Lozano, the Court of Criminal Appeals reiterated that the “reasonably
believes” language found in Penal Code section 9.32(a)(2) “contains subjective and
objective components.” Id. at 32. It continued that a defendant must “subjectively
believe” that another person used or attempted to use unlawful force or deadly
force against the defendant “and that the defendant’s use of unlawful or deadly
force in response was immediately necessary.” Id. The court then stated that “a
defendant’s subjective belief must be reasonable.” Id. The court explained that a
“reasonable belief is one held by an ordinary and prudent man in the same
circumstances as the actor.” Id. (internal quotations omitted). It explained that “a
person’s belief, absent direct evidence, generally must be inferred from the
circumstances of the case.” Id. at 33. It clarified that evidence of a defendant’s
reasonable belief need not come from the defendant but could also come from the
testimony of other witnesses about the defendant’s actions and words at the time of
the offense. Id.
As mentioned above, the defendant did not testify, nor did he call any
witnesses, including his companion on the night of the shooting, during the guilt-
innocence phase of his trial. The only evidence offered by appellant was a
stipulation of evidence which provided that if Officer Arroyo had been called to
testify as a witness, “she would testify that Charlie Ramirez never told her
anything about brass knuckles during the complete time that they exchanged
information.” Therefore, any evidence of appellant’s subjective belief that his use
of deadly force was immediately necessary when he shot the complainant must
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come from the witnesses called by the State.
Appellant nevertheless argues that the testimony and other evidence
introduced by the State provided sufficient evidence to require the trial court to
submit his requested deadly force self-defense instruction. In his appellate
briefing, appellant points out the following evidence in support of his argument.
As explained below, we conclude none of the proffered evidence required the trial
court to submit the requested deadly force self-defense instruction.
Appellant initially argues that the following excerpts from Ramirez’s
testimony supports the inclusion of the self-defense instruction: (1) the
complainant worked as a bouncer; (2) Ramirez and the complainant made eye
contact before Ramirez came up behind appellant to get him in a wrestling hold;
and (3) appellant did not hear or see Ramirez approach him from behind. We
conclude appellant’s proffered evidence does not support appellant’s argument
because, as appellant admits, he was unaware of this information and thus it could
not impact his subjective belief regarding the need to use deadly force. Lozano,
636 S.W.3d at 32 (stating that a defendant must “subjectively believe” that another
person used or attempted to use unlawful force or deadly force against the
defendant “and that the defendant’s use of unlawful or deadly force in response
was immediately necessary.”).
Next appellant points out that: (1) the complainant “confronted” appellant
about being in the sterilization room; (2) the complainant was in “intimate
proximity” to appellant; (3) the complainant was between six inches and two feet
of appellant; and (4) appellant was “sandwiched” between the complainant and
Ramirez. We once again conclude that appellant’s proffered evidence does not
establish that the trial court abused its discretion when it refused to include the
self-defense instruction. The evidence establishes only that the complainant found
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appellant in a room he was not supposed to be in and told him, twice, that he
needed to get out of the room. There was nothing from this evidence suggesting
that appellant faced a deadly threat. The result is the same with respect to
appellant’s contention that the complainant and Ramirez were close to appellant
after the complainant told him to leave the sterilization room. Undisputed
evidence also establishes that the sterilization room and adjacent hallway were
small. Regardless, the fact that the workers at the tattoo parlor were close to
appellant when he was being asked to vacate the sterilization room does nothing to
establish his subjective belief that he faced a deadly threat. See id.
Finally, appellant points to evidence that (1) Ramirez attempted to place
appellant in a full nelson wrestling hold but succeeded only in grabbing his left
arm and hair; and (2) the two men struggled and eventually fell onto the floor after
appellant shot the complainant.3 We conclude the evidence of this non-lethal
struggle between appellant and Ramirez does not support the inclusion of
appellant’s requested deadly force self-defense instruction. See Lozano, 636
S.W.3d at 34 (concluding defendant did not suffer egregious harm from incorrect
self-defense instruction because evidence did not support including a deadly force
self-defense instruction in the charge); Werner v. State, 711 S.W.2d 639, 644 (Tex.
Crim. App. 1986) (“In [the] absence of evidence of use or attempted use of deadly
force by the deceased, the statutory defense permitted by § 9.32 is not available,
and a defendant is not entitled to a jury instruction.”); Leibengood v. State, 866
3
In his brief appellant asserts that the three men, appellant, the complainant, and
Ramirez, struggled. However, having reviewed the entire record, we conclude there is no
evidence that the complainant did anything more than possibly tap or touch appellant’s shoulder
when he told him to get out of the sterilization room, which occurred before Ramirez entered the
room and while appellant was still sitting on a countertop or table in the sterilization room. This
does not support a deadly force self-defense instruction. See Lozano, 636 S.W.3d at 34
(concluding there was no evidence supporting inclusion of multiple assailants’ deadly force self-
defense instruction).
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S.W.2d 732, 736 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d) (“Here,
[defendant] never testified that he believed it was necessary to kill the victim to
protect himself from death or serious bodily injury.”); Bray v. State, 634 S.W.2d
370, 373 (Tex. App.—Dallas 1982, no pet.) (“As to the third element of Section
9.32, there is no evidence in the record that [the victim] used or attempted to use
deadly force so as to justify Bray’s deadly response. Bray does not articulate any
apprehension that [the victim] was about to employ deadly force and neither the
acts, nor words without acts, of [the victim] can be said to threaten deadly force.”).
Because there was no evidence establishing appellant’s subjective belief that
he needed to use deadly force when he shot the complainant, we conclude that the
trial court did not abuse its discretion when it denied appellant’s requested deadly
force self-defense instruction.4 We overrule appellant’s first issue.
II. The State did not engage in prosecutorial misconduct when it opposed
appellant’s requested self-defense instruction because there is no
evidence of an agreement.
In his second issue appellant argues that the State engaged in prosecutorial
misconduct when it opposed appellant’s requested self-defense instruction because
of an alleged agreement between the parties. We have reviewed the entire record
and find nothing supporting appellant’s contention that the parties agreed the State
would not oppose the inclusion of a deadly force self-defense instruction in the
jury charge. As a result, we find nothing in the appellate record supporting
appellant’s argument that the State engaged in prosecutorial misconduct. We
4
Appellant’s reliance on the Durden opinion from this court does not change this result
because in Durden the record contained some evidence of the defendant’s subjective intent. See
Durden v. State, 659 S.W.3d 26, 37 (Tex. App.—Houston [14th Dist.] 2023, pet. ref’d)
(“Moreover, contrary to the State’s argument, we conclude the trial record contains evidence of
appellant’s state of mind applicable to the analysis—her reasonable belief that her use of force
was immediately necessary to prevent Paul from raping her.”).
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overrule appellant’s second issue.
III. Appellant did not preserve his third issue.
In his third issue appellant contends that the State engaged in prosecutorial
misconduct during the punishment phase of appellant’s trial when it questioned
one of appellant’s witnesses, Gloria Garcia, regarding Islam’s teachings on murder.
Garcia testified on direct that she was like a second mother to appellant. Garcia
further testified that she met appellant and his family because her husband and
appellant’s father met for prayers every day at the mosque. She concluded her
direct testimony by asking the jury to exercise mercy and leniency when
sentencing appellant.
The State then cross-examined Garcia about the teachings of Islam on taking
another’s life. Appellant argues this line of questioning by the State constituted
prosecutorial misconduct because it was willful and calculated to inflame the jury’s
prejudices. The State responds that appellant did not preserve this argument in the
trial court. We agree with the State.
It is well settled that prosecutorial misconduct is an independent basis for
objection that must be specifically urged to be preserved. Hajjar v. State, 176
S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d); see Clark v.
State, 365 S.W.3d 333, 339–40 (Tex. Crim. App. 2012) (concluding that due
process complaint based on alleged prosecutorial misconduct must be raised in trial
court to be preserved). The proper method of preserving error in cases of
prosecutorial misconduct is to (1) object on specific grounds and obtain a ruling,
(2) request an instruction that the jury disregard the comment, and (3) move for a
mistrial. See Tex. R. App. P. 33.1(a); Penry v. State, 903 S.W.2d 715, 764 (Tex.
Crim. App. 1995); Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993).
13
Appellant admits that he did not object to the allegedly improper line of
questions by the prosecutor which he asserts constituted prosecutorial misconduct.
Attempting to avoid the rules of error preservation, appellant cites Rogers v. State
in which our sister court asserted that the rules of error preservation may not
strictly apply in a case where “serious and continuing prosecutorial misconduct
that undermines the reliability of the factfinding process, or even worse, transforms
the trial into a farce and mockery of justice” and results in a “deprivation of
fundamental fairness and due process of law.” 725 S.W.2d 350, 360 (Tex. App.—
Houston [1st Dist.] 1987, no pet.). In Rogers the court determined that
preservation was not necessary because the prosecutor questioned a witness in bad
faith and made inflammatory allegations during the questioning lacking any
evidentiary support. Id. at 360. We conclude Rogers is distinguishable because
appellant has not shown that the prosecutor here asked Garcia questions about
Islam’s teachings on the punishment of murderers in bad faith. Instead, she asked
the questions responding to Garcia’s direct testimony asking the jury to be lenient
and merciful in assessing appellant’s punishment. See Vernon v. State, 571 S.W.3d
814, 825 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d) (distinguishing Rogers
because questioning at issue was prosecutor’s attempt to impeach witness’s
testimony that created a false impression of defendant); Johnson v. State, 432
S.W.3d 552, 562 (Tex. App.—Texarkana 2014, pet. ref’d) (distinguishing Rogers
and holding defendant failed to preserve prosecutorial misconduct complaints for
appellate review). We conclude Rogers is distinguishable and hold that appellant
was required to preserve error through a contemporaneous objection. Because
appellant did not object in the trial court, we hold that he did not preserve his third
issue for appellate review. We overrule appellant’s third issue.
IV. The trial court erred in assessing costs.
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In appellant’s fourth issue he asserts the trial court erred in assessing court
costs. Specifically, appellant contends the trial court erred in assessing court costs
under a statute not applicable to appellant due to the date of commission of the
offense.
In its judgment the trial court assessed total court costs of $290, which
consisted of $185 Consolidated Court Cost-State and $105 Consolidated Court
Costs-Local. The consolidated court costs are authorized by sections 133.102 and
134.101 of the Local Government Code. See Tex. Loc. Gov’t Code §§ 133.102;
134.101. The consolidated fees listed on the cost bill in the record apply only to
defendants who were convicted of offenses committed on or after January 1, 2020.
See id.; Rhodes v. State, 676 S.W.3d 228, 232–33 (Tex. App.—Houston [14th
Dist.] 2023, no pet.). It is undisputed that the offense for which appellant was
convicted was committed in 2016. The State concedes the court costs were
improperly assessed.
Because the record does not reflect the court costs that should have been
assessed under previous legislation, we sustain appellant’s fourth issue, reverse
that portion of the court’s judgment that improperly assessed court costs, and
remand to the trial court for proper calculation of court costs. See McLeod v. State,
No. 14-22-00684-CR, 2023 WL 8263659, at *9 (Tex. App.—Houston [14th Dist.]
Nov. 30, 2023 (pet. ref’d) (sustaining appellant’s issue on appeal when trial court
improperly calculated court costs under the new statute and remanding to trial
court for proper calculation of court costs).
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CONCLUSION
We affirm the judgment of conviction and sentence. We reverse the portion
of the judgment that incorrectly assessed court costs. We remand to the trial court
for proceedings consistent with this opinion.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Jewell, Zimmerer, and Hassan.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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