Ja'Montre Joshua Mouton v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-21-00291-CR
JAMONTRE JOSHUA MOUTON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 278th District Court
Walker County, Texas
Trial Court No. 29599
MEMORANDUM OPINION
In three issues, appellant, Jamontre Joshua Mouton, challenges his murder
conviction. See TEX. PENAL CODE ANN. § 19.02. Specifically, Mouton contends that: (1)
the trial court erred by admitting gruesome images over his objection; (2) the trial court
erred by refusing to give a requested instruction on the defense of necessity; and (3) the
evidence is insufficient to support his conviction. We affirm.
Background
In the instant case, Mouton was charged with killing Jalen McDuffie based on a
dispute resulting from a drug transaction. See id. Mouton, who was fifteen years old at
the time of the killing, was tried as an adult. At the conclusion of the evidence, the jury
found Mouton guilty of the charged offense and assessed punishment at seventy-five
years in prison. The trial court certified Mouton’s right to appeal. Mouton filed a motion
for new trial in the trial court, which the trial court denied. This appeal followed.
Admission of Evidence
In his first issue, Mouton asserts that the trial court abused its discretion by
admitting the bodycam video of Corporal Marshall Douglass of the Walker County
Sheriff’s Department, which was gruesome and not probative of a disputed issue.
STANDARD OF REVIEW & APPLICABLE LAW
Generally, photographs and videos recordings of crime scenes are admissible.
Huffman v. State, 746 S.W.2d 212, 221 (Tex. Crim. App. 1988) (en banc). The trial court has
sound discretion to admit photographic evidence over an objection. Williams v. State, 301
S.W.3d 675, 690 (Tex. Crim. App. 2009). Photographs must have probative value, and the
probative value must not be substantially outweighed by its inflammatory nature. TEX.
R. EVID. 403; Williams, 301 S.W.3d at 690. Photographic evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” Penry
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v. State, 903 S.W.2d 715, 751 (Tex. Crim. App. 1995); see TEX. R. EVID. 401. Videos may be
more helpful to a jury than photographs because recordings give the jury a more
panoramic representation of physical and forensic evidence. Gordon v. State, 784 S.W.2d
410, 412 (Tex. Crim. App. 1990).
The admission of photographs and videos are reviewed for an abuse of discretion.
Penry, 903 S.W.2d at 751. In evaluating whether a trial court abused its discretion, our
review is limited to determining whether the probative value of the photograph or video
is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
misleading the jury, or by consideration of undue delay or needless presentation of
cumulative evidence. Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009).
Relevant factors in determining whether the probative value is outweighed by the danger
of unfair prejudice include the number of exhibits, their gruesomeness, their size and
detail, whether they are close-up, the availability of other means of proof, and the unique
circumstances of each case. See Fields v. State, 515 S.W.3d 47, 56 (Tex. App.—San Antonio
2016, no pet.) (citing Young, 283 S.W.3d at 874).
DISCUSSION
Although Mouton objected that the video was probative only of the fact that
McDuffie had been shot, the video provided a wide, panoramic view of the crime scene.
See Gordon, 784 S.W.2d at 412. Furthermore, the video depicted McDuffie’s injuries, the
realities of the crime committed, and the aftermath of the crime. The Court of Criminal
Mouton v. State Page 3
Appeals has held that visual images of the injuries a defendant inflicted on his victim are
relevant evidence for the jury’s consideration. Salazar v. State, 38 S.W.3d 141, 152-53 (Tex.
Crim. App. 2001); see Paredes v. State, 129 S.W.3d 530, 540 (Tex. Crim. App. 2004) (holding
that the trial court did not abuse its discretion by overruling appellant’s objection to
gruesome photos of the victim where the photos, albeit graphic, depicted the realities of
the crime committed and its aftermath).
The video was also probative as to whether every shell casing was recovered,
which was challenged by Mouton, and as to the chaos of the scene, especially when
emergency personnel arrived. In addition, the video was not cumulative of other
evidence; the video was not enhanced, repeated, edited, or modified to draw particular
attention to any of the graphic imagery; and there is no indication that the jury was
unduly influenced or inflamed by the admission of the video.
While we recognize that the video contains graphic imagery, merely because a
photograph or video is gruesome does not render it inadmissible. Chamberlain v. State,
998 S.W.2d 230, 237 (Tex. Crim. App. 1999). Photographs that are gruesome because they
depict a disagreeable reality simply depict the reality of the crime committed. Id. A trial
court does not err by admitting photographs that are gruesome; it is a matter of balancing
the probative value against unfair prejudice. Id.; see Paredes, 129 S.W.3d at 540. And after
applying the appropriate factors, we cannot conclude that the probative value of the
video is outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; see also
Mouton v. State Page 4
Young, 283 S.W.3d at 874; Fields, 515 S.W.3d at 56. Accordingly, we conclude that the trial
court did not abuse its discretion by admitting the video into evidence over Mouton’s
objection. See Penry, 903 S.W.2d at 751. We overrule Mouton’s first issue.
The Defense of Necessity
In his second issue, Mouton complains that the trial court erred by declining to
instruct the jury on the defense of necessity when the issue was raised by the evidence
and was requested by trial counsel.
STANDARD OF REVIEW
We apply a two-step analysis in reviewing a claim of charge error. Kirsch v. State,
357 S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we determine whether error exists in
the charge. Id. If the charge is erroneous, we review the record to determine whether the
error was harmful. Id.A trial court must submit a jury charge that sets forth the law applicable to the
case. TEX. CODE CRIM. PROC. ANN. art. 36.14; see Walters v. State, 247 S.W.3d 204, 208 (Tex.
Crim. App. 2007). The trial court must instruct the jury on statutory defenses, affirmative
defenses, and justifications whenever they are raised by the evidence in the case. Walters,
247 S.W.3d at 208-09. “A defendant is entitled to an instruction on every defensive issue
raised by the evidence, regardless of whether the evidence is strong, feeble,
unimpeached, or contradicted, and even when the trial court thinks the testimony is not
worthy of belief.” Id. at 209. When reviewing a trial court’s ruling denying a requested
Mouton v. State Page 5
defensive instruction, we view the evidence in the light most favorable to the defendant’s
requested instruction. See Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). We
review the trial court’s decision not to include a defensive issue in the jury charge for an
abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).
Necessity is a justification defense that excuses a defendant’s otherwise unlawful
conduct if (1) the defendant reasonably believed the conduct was immediately necessary
to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly
outweighed, according to ordinary standards of reasonableness, the harm sought to be
prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude
the justification claimed for the conduct does not otherwise plainly appear. TEX. PENAL
CODE ANN. §§ 9.02, 9.22; see Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999).
Necessity is a confession-and-avoidance defense, meaning that the defendant is not
entitled to a necessity instruction unless he admits to the conduct—both the act and the
culpable mental state—of the charged offense and then offers necessity as a justification.
See Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010). Stated differently, the
defendant must “admit” or confess to violating the statute under which he is being tried,
then offer necessity as a justification for his otherwise criminal conduct. See Young, 991
S.W.2d at 838.
Mouton v. State Page 6
DISCUSSION
Zakee Fedayeen testified that McDuffie wanted to buy two ounces of marihuana
from Mouton. Mouton was a classmate of Fedayeen’s, so Fedayeen set up the transaction.
McDuffie and Fedayeen met Mouton in the parking lot of The Pines Apartments.
McDuffie and Fedayeen were in McDuffie’s car, and Mouton approached the car to
complete the transaction. McDuffie purchased the marihuana, and Mouton inquired
about purchasing a pistol that McDuffie had in the center console of the car. However,
McDuffie and Mouton could not agree on a purchase price for the pistol. McDuffie and
Fedayeen left the parking lot and went to the house of a friend of McDuffie’s. At the
friend’s house, McDuffie “opened up the bag and started breaking the weed down into
smaller bags.” McDuffie realized that he had been shorted on the marihuana and became
upset. Fedayeen testified that he and McDuffie’s brother calmed down McDuffie. But
McDuffie wanted to meet with Mouton to either get his money or get the amount of
marihuana that he had been shorted.
Fedayeen and McDuffie eventually spoke with Mouton, and Mouton agreed to
“mak[e] it right.” They discussed “meeting up” at The Summit Apartments. Before the
meeting at The Summit Apartments, Fedayeen and McDuffie drove to Mouton’s house
to find him. Mouton was not at his house. Fedayeen and McDuffie then proceeded to
meeting spot at The Summit Apartments. Because they were unsure about what time
they were meeting Mouton, Fedayeen and McDuffie sat in McDuffie’s car for a while
Mouton v. State Page 7
until they decided to hang out at the apartment pool while they waited for Mouton.
Because of the length of wait, McDuffie became “[i]mpatient, a little worrisome.” He
instructed Fedayeen to go start the car “[i]n case somebody gets shot or anything.” Ten
minutes later, McDuffie relaxed and told Fedayeen to leave the car and come to the pool
to socialize. Fedayeen and other witnesses recalled that McDuffie was happy and calm
at this point in time. While Fedayeen and McDuffie were socializing with others at the
apartment pool, Mouton arrived and “[c]ame over to the side and waived at [Fedayeen].”
Fedayeen and McDuffie walked to the side of the building to meet Mouton. Fedayeen
and McDuffie were walking side by side while Mouton was walking about five feet in
front of them. According to Fedayeen, once he and McDuffie turned a corner, Mouton
turned around and pulled out a gun that Fedayeen did not know Mouton had. Fedayeen
acknowledged that McDuffie had a gun tucked inside his pants “above his crotch” with
his shirt covering it. Fedayeen further recounted that Mouton pointed his gun at
McDuffie and ordered McDuffie to give him the gun that McDuffie was concealing.
When McDuffie reached down to grab his gun, Mouton fired shots, which struck
McDuffie and lead to his demise.
Despite the foregoing evidence, Mouton maintained in his interview with police
that McDuffie shot at him and that he ran away from McDuffie, but then returned to the
scene and fired shots. When asked for further clarification, Mouton stated that he came
Mouton v. State Page 8
back as Fedayeen and McDuffie were walking away, which amounted to a new
interaction between Mouton and McDuffie.
For Mouton to have been entitled to a necessity instruction, there must be evidence
that his conduct—shooting McDuffie—was “immediately necessary to avoid imminent
harm.” TEX. PENAL CODE ANN. § 9.22(1); see Harper v. State, 508 S.W.3d 461, 467 (Tex.
App.—Fort Worth 2015, pet. ref’d) (noting that to raise a necessity defense, there must be
“evidence of a reasonable belief of both immediate necessity and imminent harm”). The
term necessary is not defined in the statute; thus, we must give the word meaning it is
afforded by common usage. See Lopez v. State, 600 S.W.3d 43, 46 (Tex. Crim. App. 2020)
(noting that courts may look to standard dictionaries to ascertain common usage of a term
undefined by a statute that lacks technical meaning). Necessary ordinarily means
“required to be done,” which is consistent with the concept of necessity, which ordinarily
involves “the fact of being required or indispensable.” NEW OXFORD AMERICAN
DICTIONARY 1171 (3d ed. 2010).
Here, the testimony revealed that Mouton chose the location of the shooting and
brought a firearm, which he pointed at McDuffie. Mouton then ordered McDuffie to
surrender his firearm and then shot McDuffie while he was attempting to comply with
the order. There is no evidence that McDuffie threatened Mouton or that McDuffie fired
or attempted to fire his gun at Mouton. Thus, it cannot be said that Mouton act of
Mouton v. State Page 9
shooting McDuffie was “immediately necessary to avoid imminent harm.” TEX. PENAL
CODE ANN. § 9.22(1); see Harper, 508 S.W.3d at 467.
And as noted earlier, Mouton’s own description of the events belies his contention
that a necessity instruction was warranted. Even if McDuffie shot first and Mouton fled,
the fact that Mouton returned later and shot McDuffie indicates the commencement of a
new interaction that did not amount to a split-second decision without time to consider
the law by Mouton to shoot McDuffie to avoid imminent harm. See Harper, 508 S.W.3d
at 467 (“[A] defendant’s sincere belief that his conduct is immediately necessary to avoid
imminent harm is unreasonable as a matter of law if the undisputed facts demonstrate a
complete absence of ‘immediate necessity’ or ‘imminent harm’ as legally defined.”); see
also Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref’d) (“[I]mminent
harm contemplates a reaction to a circumstance that must be the result of a ‘split-second
decision [made] without time to consider the law’ and requires ‘an immediate, non-
deliberative action made without hesitation or thought of the legal consequence.”
(quoting Smith v. State, 874 S.W.2d 269, 273 (Tex. App.—Houston [14th Dist.] 1994, pet.
ref’d))).
Therefore, viewing the evidence in the appropriate light, we cannot say that the
trial court abused its discretion by refusing to instruct the jury on necessity. See TEX.
PENAL CODE ANN. § 9.22(1); see also Bufkin, 207 S.W.3d at 782; Wesbrook, 29 S.W.3d at 122.
We overrule Mouton’s second issue.
Mouton v. State Page 10
Sufficiency of the Evidence
In his third issue, Mouton argues that the evidence is insufficient to support his
murder conviction. We disagree.
STANDARD OF REVIEW
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider
whether, after viewing all of the evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017). This standard requires the appellate court to defer “to
the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319. We may not re-weigh
the evidence or substitute our judgment for that of the factfinder. Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting
a sufficiency review must not engage in a “divide and conquer” strategy
but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d
at 232. Although juries may not speculate about the meaning of facts or
evidence, juries are permitted to draw any reasonable inferences from the
facts so long as each inference is supported by the evidence presented at
trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson,
443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
2007). We presume that the factfinder resolved any conflicting inferences
from the evidence in favor of the verdict, and we defer to that resolution.
Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because
the jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Brooks v. State, 323
S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial
evidence are equally probative, and circumstantial evidence alone may be
sufficient to uphold a conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction. Ramsey
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v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at
13.
We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that “accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State's burden of proof
or unnecessarily restrict the State's theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law
as authorized by the indictment” includes the statutory elements of the
offense and those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
DISCUSSION
Here, Mouton was charged with murder under section 19.02(b)(2) of the Texas
Penal Code. See TEX. PENAL CODE ANN. § 19.02(b)(2). “A person commits an offense if
he . . . intends to cause serious bodily injury and commits an act clearly dangerous to
human life that causes the death of an individual.” Id. On appeal, Mouton contends that
a rational factfinder could not find beyond a reasonable doubt that he was the aggressor
and did not act in self-defense when he shot the person—McDuffie—who was pursuing
him over a drug-sale dispute.
As stated earlier, the evidence showed that Mouton arranged the meeting with
Fedayeen and McDuffie at The Summit Apartments. As described by Fedayeen, Mouton
arrived at this meeting with a gun, brought Fedayeen and McDuffie away from
Mouton v. State Page 12
witnesses, pointed the gun at McDuffie, and fired the gun before McDuffie could respond
to Mouton’s demand to turn over his gun. As a result of being shot multiple times by
Mouton, McDuffie died.
In his interview with police, Mouton recounted that McDuffie shot at him first and
that he ran away from McDuffie, but then returned to the scene and fired shots. Texas
Ranger Chris Cash testified that Mouton’s story about the incident was not plausible
because, based on the elevation and placement of vehicles and other obstructions at the
scene, the location from which Mouton claimed to have fired the shots would be
impossible. Ranger Cash further testified that the placement of shell casings found at the
scene was consistent with Fedayeen’s testimony. Furthermore, eyewitness Jacob Van
Holten described Mouton as “walking back and forth” and “getting himself hyped up,
pumped up” shortly before the shooting. And finally, Mouton admitted that he fled the
scene and discarded the murder weapon in the Trinity River. See Valdez v. State, 623
S.W.2d 317, 321 (Tex. Crim. App. 1981) (“Further, while flight alone will not support a
guilty verdict, evidence of flight from the scene of a crime is a circumstance from which
an inference of guilt may be drawn.” (internal citation omitted)).
The issue of self-defense is a fact issue to be determined by the factfinder, who is
free to accept or reject the defensive evidence. Braughton v. State, 569 S.W.3d 592, 609
(Tex. Crim. App. 2018). As the sole judge of the weight and credibility of the evidence,
the jury is free to believe or disbelieve the testimony of all witnesses and to accept or
Mouton v. State Page 13
reject any or all of the defensive evidence. See id. at 608-09; see also Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991) (“As factfinder, the jury is entitled to judge the
credibility of witnesses, and can choose to believe all, some, or none of the testimony
presented by the parties.”). “[A] jury verdict of guilty is an implicit finding rejecting the
defendant’s self-defense theory.’” Braughton, 569 S.W.3d at 609 (quoting Saxton v. State,
804 S.W.2d 910, 914 (Tex. Crim. App. 1991)). We presume that the jury resolved
conflicting inferences in favor of the verdict, and we defer to its determination of the
evidentiary weight and witness credibility. Id. at 608; see Criff v. State, 438 S.W.3d 134,
136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
Accordingly, after reviewing all the evidence in the light most favorable to the
jury’s verdict, giving due deference to the jury’s weight and credibility determinations,
we conclude that, on the evidence presented, a rational trier of fact could have rejected
Mouton’s self-defense theory and assertion that he was not the aggressor and found the
essential elements of the offense beyond a reasonable doubt. See TEX. PENAL CODE ANN.
§ 19.02(b)(2); see also Braughton, 569 S.W.3d at 608-09; Zuniga, 551 S.W.3d at 732-33. As
such, we overrule Mouton’s third issue.
Conclusion
Having overruled all of Mouton’s issues on appeal, we affirm the judgment of the
trial court.
Mouton v. State Page 14
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson,
and Justice Smith
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed February 8, 2023
Do not publish
[CRPM]
*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.)
Mouton v. State Page 15