Ryan Jivaro Whitaker v. the State of Texas

Affirmed and Memorandum Opinion filed October 5, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00177-CR
RYAN JIVARO WHITAKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1463151
MEMORANDUM OPINION
A jury convicted appellant of first-degree murder. Tex. Penal Code Ann.
§ 19.02(b), (c). The trial court assessed punishment at imprisonment for 25 years.
Tex. Penal Code Ann. § 12.32. In three issues, appellant argues (1) the evidence
was insufficient to support his conviction, (2) the trial court reversibly erred by
denying appellant’s motion for mistrial and overruling certain objections during
the State’s closing argument, and (3) the trial court reversibly erred by omitting a
required instruction on the presumption of reasonableness from the jury charge.
We affirm.
I. BACKGROUND
It is undisputed that appellant intentionally caused the injuries that resulted
in the death of the complainant, Anthony Kincaid, on April 1, 2015; the central
question at trial was whether appellant acted in self-defense. While no one saw the
altercation between appellant and Kincaid start, Kincaid’s neighbors, the
Camposes, witnessed portions of a fight between the two men. Maria Campos
testified that she heard someone outside her house asking for help. She looked out
the window and saw blood on her porch and also saw appellant1 and Kincaid
fighting on the ground. Appellant was on top of Kincaid and was hitting him and
banging him into the ground; Kincaid was trying to push appellant off of him.
Kincaid escaped and ran away, after which appellant ran after Kincaid, tackled
him, and began hitting and punching him. At no point did Maria see Kincaid act in
an aggressive manner. Maria witnessed police arriving and telling appellant several
times at gunpoint to get off of Kincaid; appellant did not comply at first, but
instead continued hitting Kincaid. Maria did not see anything in appellant’s hand.
Maria’s husband Miguel gave a similar account. He was awakened by
someone banging on the door and desperate screams of “Help me.” He opened the
blinds and saw a lot of blood and two men fighting. Kincaid “was on the bottom
was screaming help desperately, right, like crying; and the person on top was
giving him blows.” When police arrived, Kincaid was not responsive.
When Officer Michael Jones arrived on the scene, he saw appellant on top of
Kincaid with his hands in the area of Kincaid’s neck. Kincaid appeared
nonresponsive; his hands were on the ground, and Jones did not see him move.
1
The Camposes identified appellant as a man wearing a camouflage jacket; it is
undisputed that appellant was wearing such a jacket on the date in question.
2
Jones drew his firearm and several times commanded appellant to stop what he
was doing and show his hands. Appellant was noncompliant for 15 or 30 seconds
before raising his hands and dropping what appeared to be a knife. A broken
kitchen knife, described as a fillet or boning knife, was found at the scene. After
another officer arrived at the scene, appellant said of Kincaid, “He came at me with
a knife. He tried to kill me.” He repeated similar allegations to a third officer at the
scene.
Kincaid had deep cuts all around his neck and severe blood loss. When
paramedics arrived, Kincaid had no pulse and was not breathing; he was
pronounced dead at the scene. Kincaid’s cause of death was multiple sharp-force
injuries, specifically being “cut and stabbed with a knife.” Kincaid sustained
approximately 140 sharp-force injuries, including injuries to his jugular vein and
internal carotid artery, along with approximately 40 blunt-force injuries.
While there was blood on appellant’s jacket, officers at the scene did not see
any injury to appellant. A paramedic at the scene did not find evidence of any
injuries or significant bleeding to appellant, only minor cuts, including a scratch on
appellant’s head. Medical records stated that appellant had a broken finger, an
abrasion on his knee, and a closed-head injury, and that appellant was advised that
he had a concussion.
Officer John Black, a homicide investigator, interviewed appellant on the
day of the incident. Appellant told Black that he “tried to kill” Kincaid because he
was “scared for [his] life.” He stated that, after he asked to borrow Kincaid’s
phone, Kincaid became belligerent and brandished a kitchen knife, after which
appellant struck Kincaid in the face and a fight ensued. When asked how he tried
to kill Kincaid, appellant responded, “Colombian necktie,” which appellant
described as cutting the throat “all the way around.” Black testified that, when
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appellant said “Colombian necktie,” appellant “smiled and raised his eyebrows at
me with what appeared to be pleasure.”
II. ANALYSIS
A. Sufficiency of the evidence
In issue 1, appellant argues that the evidence was legally insufficient to
support his conviction because appellant presented evidence of self-defense and
the State did not “disprove” the defense. Generally, “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 Ann. § 9.31(a). As relevant
here, a person is justified in using deadly force against another “(1) if the actor
would be justified in using force against the other under Section 9.31; and (2) when
and to the degree the actor reasonably believes the deadly force is immediately
necessary (A) to protect the actor against the other’s use or attempted use of
unlawful deadly force[.].” Tex. Penal Code Ann. § 9.32(a).
“[I]f the issue of the existence of a defense is submitted to the jury, the court
shall charge that a reasonable doubt on the issue requires that the defendant be
acquitted.” Tex. Penal Code Ann. § 2.03(d). Specific to self-defense, the court of
criminal appeals has explained that the defendant bears the burden to produce
evidence supporting the defense, while the State bears the burden of persuasion to
disprove the raised issues. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim.
App. 2018). The defendant’s burden of production requires him to adduce some
evidence that would support a rational finding in his favor on the defensive issue.
Id. By contrast, the State’s burden of persuasion “is not one that requires the
production of evidence; rather it requires only that the State prove its case beyond
a reasonable doubt.” Id. (quotation omitted). Thus, “[i]n resolving the sufficiency
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of the evidence issue, we look not to whether the State presented evidence which
refuted appellant’s self-defense testimony, but rather we determine whether after
viewing all the evidence in the light most favorable to the prosecution, any rational
trier of fact would have found the essential elements of [the offense] beyond a
reasonable doubt and also would have found against appellant on the self-defense
issue beyond a reasonable doubt.” Id. at 609 (quotation omitted).
Appellant does not contend that he did not intentionally cause the wounds
that resulted in Kincaid’s death. Accordingly, a rational juror could have
determined that the State presented legally-sufficient evidence to prove the
essential elements of murder.2 Could a rational juror have also found against
appellant on the self-defense issue? As above, to prove self-defense, a defendant is
required to show, among other things, that he “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 Ann. § 9.31. Appellant’s claim of self-defense
rests on statements he made to peace officers that Kincaid attacked him with a
knife. The jury, however, was free to reject this evidence. See Braughton, 569
S.W.3d at 612–13 (jury may rationally disbelieve defendant’s claims of self-
defense). Moreover, while no one saw the altercation start, the witness testimony
indicates that appellant was hitting Kincaid while on top of him, Kincaid escaped
and appeared to run away, and appellant jumped back on him and continued to
attack him. The jury could have concluded these acts were not consistent with self-
defense, nor was appellant’s attempt to give Kincaid a “Colombian necktie.”
Viewing the evidence in the light most favorable to the verdict, a reasonable juror
2
Penal Code section 19.02 states in relevant part that a person commits the offense of
murder if 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 Ann. § 19.02(b).
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could have determined beyond a reasonable doubt that appellant murdered Kincaid
and was not acting in self-defense.
We overrule issue 1.
B. Closing argument
In issue 2, appellant makes various arguments concerning prosecutorial
misconduct during the State’s closing argument.
1. Reasonableness of self-defense
Appellant first argues the trial court erred by overruling his motion for a
mistrial after the following portion of the State’s closing argument:
[THE STATE]: When we talked about reasonable doubt—excuse me,
when we talked about self-defense in this case, you have a Charge
that’s about 15 pages long that’s trying to say this: Self-defense must
be proportional. It must be reasonable. It must be immediately
necessary, and it must be in response to deadly force. And we talked
about what reasonable meant; and I made a joke during voir dire that
if you taught a class on how to give PowerPoints, I’d probably be in
trouble for this slide. We talked about reasonable in this situation. Mr.
Savoy and Mr. Hamm, they’re talented lawyers. And they’ve over and
over tried to tell you that reasonable is from the perspective of Ryan
Whitaker. That is not true.
[DEFENSE COUNSEL]: Objection, Your Honor, misstatement of the
law.
THE COURT: Sustained. Ladies and gentlemen, the law is as given to
you in the Court’s Charge, not what the lawyers tell you.
[DEFENSE COUNSEL]: Ask the jury to disregard his last statement,
Your Honor.
THE COURT: Jury, disregard the last statement of the Prosecutor.
[DEFENSE COUNSEL]: Move for mistrial, Your Honor.
The trial court then called the lawyers to the bench for a discussion before allowing
the State to continue its closing argument, implicitly denying the motion for
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mistrial. Tex. R. App. P. 33.1(a)(2)(A) (error preserved for review if trial court
ruled on motion “either expressly or implicitly”). Appellant argues a mistrial was
warranted because the State misstated the law by telling the jury that the
reasonableness of the self-defense inquiry was not considered “from the
perspective” of appellant.
Because the trial court sustained appellant’s objection and instructed the jury
to disregard the State’s comments, the question before this court is whether the
trial court abused its discretion by denying appellant’s motion for a mistrial.
Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004) (“The only
adverse ruling—and thus the only occasion for making a mistake—was the trial
court’s denial of the motion for mistrial. Under those circumstances, the proper
issue is whether the refusal to grant the mistrial was an abuse of discretion.”). To
evaluate whether the trial court abused its discretion by denying the motion for
mistrial, we balance three “Mosley” factors: (1) the severity of the misconduct (the
magnitude of the prejudicial effect of the prosecutor’s remarks); (2) the measures
adopted to cure the misconduct (the efficacy of any cautionary instruction by the
judge); and (3) the certainty of conviction absent the misconduct (the strength of
the evidence supporting the conviction). Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998). Mistrial is the appropriate remedy when the objectionable
events are so emotionally inflammatory that curative instructions are not likely to
prevent the jury from being unfairly prejudiced against the defendant. Archie v.
State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011).
The first Mosley factor evaluates the severity of the State’s misconduct. The
court’s charge instructs the jury that, “By the term ‘reasonable belief’ as used
herein is meant a belief that would be held by an ordinary and prudent person in
the same circumstances as the defendant.” By telling the jury that the
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reasonable-belief inquiry was not considered “from the perspective” of appellant,
the State may have been attempting to explain that the law draws a distinction
between (1) what a reasonable person in the defendant’s shoes would have
believed versus (2) what a specific defendant employing his own particular
definition of “reasonableness” would have believed. Cf. Mays v. State, 318 S.W.3d
368, 383 (Tex. Crim. App. 2010) (“The law examines ‘reasonableness’ from the
perspective of an ordinary and prudent person, not from that of a paranoid
psychotic[.]”). While falling short of egregious misconduct, the State’s explanation
nonetheless had the potential to cause confusion among the jurors as to how to
evaluate reasonable belief.
The trial court, however, took prompt remedial measures, sustaining
appellant’s objection, explaining to the jury that “the law is as given to you in the
Court’s Charge, not what the lawyers tell you” and instructing the jury to disregard
the prosecutor’s statement. An instruction to disregard will generally cure harm
stemming from improper jury argument unless the comments are “so indelible that
the jury would simply ignore the trial court’s specific and timely instruction to
disregard them.” Archie, 340 S.W.3d at 741. In addition, the trial court twice called
the parties to the bench to instruct the prosecutor to correctly state the law, after
which the prosecutor told the jury, without objection, “As we were just saying, the
law is from the shoes of the Defendant, would an ordinary and prudent person
believe his actions are reasonable.”
Finally, we consider the certainty of conviction absent the misconduct.
Given that the misconduct was not egregious, and the trial court took prompt and
effective measures to cure the misconduct, it does not appear on this record that the
misconduct would have affected the jury in its weighing of the evidence.3 We
3
Appellant argues our decision in Peak v. State, 57 S.W.3d 14 (Tex. App.—Houston
8
conclude the trial court did not abuse its discretion in denying appellant’s motion
for a mistrial.
2. Use of force immediately necessary
Appellant next argues the trial court reversibly erred by overruling his
objections during the following portion of the State’s closing argument:
[THE STATE:] If anybody here says yes to that, then you go to is it
also immediately necessary. And the question of immediately
necessary is not one of is everything immediately necessary. The
question is is every action immediately necessary?
[DEFENSE COUNSEL]: Objection. Once, again, Your Honor, that’s
a misstatement of the law.
THE COURT: That's overruled.
[THE STATE]: Is every action immediately necessary? When you
hear that Ryan Whitaker—from Mr. and Mrs. Campos that Ryan
Whitaker tracked Mr. Kincaid down as he tried to flee for his life and
continued to murder him, was that immediately necessary for Ryan
Whitaker? Then you ask yourself, once the police arrived and are
holding Mr. Whitaker at gunpoint, shouting stop, drop that, show me
your hands, and he continues to murder a man in his own
neighborhood, was every single stab wound inflicted when the police
were there immediately necessary?
[DEFENSE COUNSEL]: Objection, once again, Your Honor. That’s
not the law.
THE COURT: Overruled.
[DEFENSE COUNSEL]: It doesn’t say every single stab wound
needs to be necessary.
THE COURT: Overruled.
[14th Dist.] 2001, no pet.), compels a different result. In Peak, we concluded a mistrial was
warranted when the prosecutor “engaged in serious misconduct” by repeatedly implying the jury
should disregard a portion of the charge and the trial court “fail[ed] to take corrective measures
to cure improper argument,” including overruling one objection that the prosecutor then
emphasized. See id. at 19–21. We conclude Peak is distinguishable on its facts.
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Appellant argues the prosecutor misstated the law when he asked the jury
whether “every action” and “every single stab wound” was “immediately
necessary.” Earlier in his closing argument, however, the prosecutor asked the jury,
without objection, “Was every single one of those wounds that Ryan Whitaker
inflicted immediately necessary? Absolutely not.” Error concerning improper
argument is waived when the State made “substantially the same argument without
objection.” Temple v. State, 342 S.W.3d 572, 610 (Tex. App.—Houston [14th
Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013). On that basis, we
conclude this complaint is waived.4
3. Argument outside the record
Appellant next argues the trial court abused its discretion by overruling
appellant’s objection that the State argued facts not in evidence when discussing
the lack of injuries on appellant’s arm and hand. In response to appellant’s
objection of “assuming facts not in evidence,” the trial court responded, “Stay
within the record, Counsel.” We conclude this statement is insufficient to preserve
error, as it is unclear that the trial court adversely ruled against appellant. See Tex.
R. App. P. 33.1(a)(2) (to preserve error, appellant must show trial court ruled on
4
Moreover, the Penal Code standard for self-defense, as reflected in the trial court’s
charge, requires that a person is justified in the use of force “when and to the degree the actor
reasonably believes the force is immediately necessary.” Tex. Penal Code Ann. § 9.31(a)
(emphasis added). The trial court might have concluded the prosecutor’s comments as to whether
each of appellant’s actions was reasonable properly commented on this requirement that
appellant use force only to a reasonable degree under the circumstances. See State v. Renteria,
977 S.W.2d 606, 608 (Tex. Crim. App. 1998) (“We have long held that error in jury argument
does not lie in going beyond the court’s charge, but in stating law contrary to the same.”
(quotation omitted) (collecting cases)). Such a conclusion would be within the zone of
reasonable disagreement. See Milton v. State, 572 S.W.3d 234, 241 (Tex. Crim. App. 2019)
(rulings relating to propriety of closing argument are reviewed for abuse of discretion);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g) (explaining
that, under abuse of discretion standard, “an appellate court should not reverse a trial judge
whose ruling was within the zone of reasonable disagreement”).
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objection expressly or implicitly or refused to rule); Ferree v. State, 416 S.W.3d 2,
7 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (ambiguous response of trial
court to objection “does not constitute an adverse ruling sufficient to preserve
error”); see also Graham v. State, 566 S.W.2d 941, 954 (Tex. Crim. App. 1978)
(no adverse ruling obtained and nothing preserved for review when, in response to
defense counsel’s objection, “the court instructed the prosecutor to confine his
remarks to the record”).
We overrule issue 2.
C. Charge error
In issue 3, appellant argues he was egregiously harmed by the trial court’s
omission of an instruction on the presumption of reasonableness.
Penal Code section 9.32(b) states:
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:
...
(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[.]
Tex. Penal Code Ann. § 9.32(b). If there is sufficient evidence giving rise to a
presumption, such as the presumption here regarding the reasonableness of the
actor’s belief that deadly force was immediately necessary, the jury must be
instructed on it. Tex. Penal Code Ann. § 2.05(b)(1). When a jury is instructed on
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the presumption, the jury must also be instructed that “the presumption applies
unless the State proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist” and, if the State fails to make such proof, then “the jury
must find that the presumed fact exists.” Tex. Penal Code Ann. § 2.05(b)(2)(A),
(B). However, the trial court is not required to submit the presumption if “the court
is satisfied that the evidence as a whole clearly precludes a finding beyond a
reasonable doubt of the presumed fact.” Tex. Penal Code Ann. § 2.05(b)(1).
Here, three peace officers testified that appellant stated that Kincaid had
attacked him with a knife. We conclude this is sufficient evidence to give rise to
the trial court’s duty to instruct the jury on the presumption.5 See Tex. Penal Code
Ann. § 2.05(b)(1).
When, as here, the defendant did not raise a timely objection to the
challenged portion of the jury instructions, “reversal is required only if the error
was fundamental in the sense that it was so egregious and created such harm that
the defendant was deprived of a fair and impartial trial.” Villarreal v. State, 453
S.W.3d 429, 433 (Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984)). In examining the record to determine whether
charge error has resulted in egregious harm to a defendant, we consider (1) the
entirety of the jury charge, (2) the state of the evidence, including the contested
issues and weight of probative evidence, (3) the arguments of counsel, and (4) any
other relevant information revealed by the trial record as a whole. Almanza, 686
S.W.2d at 171.
The jury charge omitted the required instruction, and accordingly the first
factor weighs in favor of egregious harm. However, the court of criminal appeals
5
The State does not argue this evidence is insufficient to warrant an instruction on the
presumption.
12
has explained that the weight of this factor is mitigated when “a complete jury
charge on the presumption, in addition to describing the legal force of the
presumption itself, would have also permitted the jury to conclude that the
presumption was inapplicable based on the facts of this case.” Villarreal, 453
S.W.3d at 433. Here, the jury might have concluded from the evidence that
appellant was the aggressor, rendering the presumption of reasonableness
immaterial.
The second factor considers the state of the evidence. The primary evidence
supporting self-defense was appellant’s self-serving statements that Kincaid had
attacked him with a knife and that appellant was scared for his life. These
statements are mitigated by the eyewitness testimony suggesting that appellant was
the aggressor, including testimony that, after Kincaid broke free and ran away,
appellant chased him down, tackled him, straddled him, and beat him, all in the
course of attempting to give Kincaid a “Colombian necktie.” See id. at 436 (“the
mere existence of conflicting testimony surrounding a contested issue does not
necessarily trigger a finding of egregious harm”). This factor weighs against
egregious harm. See id. at 439 (factor weighed “substantially” against egregious
harm when there was significant evidence that defendant was aggressor and, “save
for appellant’s own statements to police, none of the other evidence presented at
trial supported a justification defense”).
The third factor concerns the arguments of counsel. The question of who
initiated the altercation was discussed far more in closing arguments than the
question of the reasonableness of the force used by appellant. Appellant’s lawyers
focused almost exclusively on who the aggressor was, with barely a mention of
whether the actions taken by appellant were reasonable. As one of appellant’s
lawyers put it, “I told you from the beginning what your decision was going to
13
have to be. Who started this fight and who had that knife first?” While the
prosecutor discussed reasonableness in more detail, the focus of the State’s
argument likewise hinged on whether appellant or Kincaid initiated the altercation.
We conclude this factor weighs against egregious harm.
As for the fourth factor, the record does not contain “other relevant
information that may require consideration,” such as “whether the jury rejected one
of multiple counts or sent requests for clarification during deliberations.” See Smith
v. State, 515 S.W.3d 423, 431 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).
Egregious harm must be based on actual, rather than theoretical, harm. Cosio
v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). Having reviewed the
factors, while the trial court was required to give the instruction on the
presumption of reasonableness, we conclude appellant did not suffer egregious
harm from its absence. In particular, the evidence is such that the jury could have
rejected the presumption even if the instruction had been given if they disbelieved
appellant’s statements that Kincaid attacked him. See Villarreal, 453 S.W.3d at
433, 436, 439 (no egregious harm despite omission of instruction on presumption
of reasonableness). Accordingly, we cannot determine that actual, egregious harm
resulted from the error.
We overrule issue 3.6
6
Having overruled appellant’s issues, we do not reach the State’s “Cross-Point of Error.”
Tex. R. App. P. 47.1; see Tex. Code Crim. Proc. Ann. art. 44.01(c); Pfeiffer v. State, 363 S.W.3d
594, 601 (Tex. Crim. App. 2012) (“Usually, courts of appeals may address the State’s cross-
appeal point only if the defendant prevails on appeal and the case will be remanded for further
proceedings.”) (discussing Armstrong v. State, 805 S.W.2d 791, 793–94 (Tex. Crim. App.
1991)).
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III. CONCLUSION
We affirm the judgment of the trial court as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Spain, Hassan, and Poissant.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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