Damien Douglas Harris v. the State of Texas ( 2022 )

Opinion issued December 15, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00140-CR
———————————
DAMIEN DOUGLAS HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 428th District Court
Hays County, Texas1
Trial Court Case No. CR-17-0781-D
1
The Texas Supreme Court transferred this appeal to this Court from the Court of
Appeals for the Third District of Texas, pursuant to its docket-equalization
authority. See TEX. GOV’T CODE § 73.001 (“The supreme court may order cases
transferred from one court of appeals to another at any time that, in the opinion of
the supreme court, there is good cause for the transfer.”). We are unaware of any
conflict between the precedent of the Court of Appeals for the Third District and
that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
OPINION ON EN BANC RECONSIDERATION
The State of Texas has filed a motion for en banc reconsideration of our
May 26, 2022 opinion and judgment. See TEX. R. APP. P. 49.7. A majority of the
Court has voted to grant en banc reconsideration. We withdraw our opinion of
May 26, 2022, vacate our judgment of the same date, and issue this en banc
opinion and judgment in their stead.
A jury convicted appellant, Damian Harris, of murder2 and assessed his
punishment at 20 years’ confinement. In three issues, appellant argues that (1) the
evidence is legally insufficient to support his murder conviction because the State
failed to prove beyond a reasonable doubt that he did not act in self-defense, (2)
the trial court abused its discretion in denying his motion for new trial, and (3) the
trial court erred in failing to provide an adequate response to a jury note asking
whether the admitted commission of a crime negates the basis for a self-defense
claim and instead referring the jury to the court’s charge. We affirm.
Background
This is a murder case arising from a drug-related shooting. One evening in
February 2017, officers received a dispatch for shots fired at an apartment complex
in San Marcos, Texas. When they arrived, they found a deceased male, later
identified as Terrance Valentine, inside one of the apartments, dead from a single
2
See TEX. PENAL CODE § 19.02(b).
2
gunshot wound to the back of the head. Witnesses told the officers that Valentine
and another male, later identified as appellant, had gotten into an argument during
a drug deal, which escalated and ultimately ended with appellant pulling a handgun
and shooting Valentine in the head.
Appellant was indicted for murder. The indictment alleged that appellant
caused Valentine’s death by shooting him with a firearm. Appellant entered a plea
of not guilty, claiming that he had acted in self-defense. At trial, the State
presented numerous witnesses and exhibits. Viewed in the light most favorable to
the jury’s verdict, the evidence established the following:
In January 2017, Valentine arranged a drug deal with Devin Bethea through
an intermediary, Ty-Zay Wilson. Wilson knew both Bethea and Valentine and put
them in contact with one another after Bethea informed Wilson that he wanted to
sell prescription-grade cough syrup.3 Through text messaging, Bethea and
Valentine negotiated the price, amount, and location, agreeing to meet at Wilson’s
apartment in San Marcos.
On the night of the scheduled drug deal, Valentine drove to the apartment
with his friend, Joseph Massey, while Bethea drove to the apartment with
appellant.
3
Such codeine-based cough syrup is used to make the recreational drug beverage
“lean” or “purple drank.”
3
Valentine and Massey arrived first and went upstairs to Wilson’s bedroom to
play videogames while they waited for Bethea and appellant. While waiting
upstairs, Valentine told Wilson that he was armed with a handgun, that he intended
to pay for the drugs with counterfeit bills, and that if Bethea and appellant tried to
“rob” him, he would just “take” the drugs from them. Wilson never warned Bethea
or appellant about what Valentine had told him while waiting upstairs, and there is
no evidence either of them knew that Valentine was armed and prepared to “take”
the drugs from them.
When Bethea and appellant arrived, they entered the apartment with
appellant carrying a box purportedly containing the drugs. Massey and Valentine
came downstairs, and Valentine gave Bethea and appellant the counterfeit bills.
Bethea and appellant counted it at the kitchen island while Valentine moved
around to the back of a couch near the front door; Massey and Wilson stayed in the
kitchen.
When Bethea and appellant finished counting the money, appellant, perhaps
realizing that the money was fake, said Valentine was short, packed up the drugs,
and started to leave. But, before appellant could reach the front door, Valentine
intercepted him, grabbed the front of his shirt, and pushed him against the wall.
Appellant then drew a gun from his waistband, and, as Valentine turned, possibly
reaching for his own gun, appellant shot him in the back of the head, immediately
4
killing him. Valentine’s gun discharged a round into the floor that ricocheted into
the couch leg.
Massey ran upstairs into Wilson’s bedroom, and Wilson fled out the back
door. Appellant and Bethea fled the scene as well.
Wilson never returned that night, but Massey eventually came back
downstairs and found Valentine facedown near the door with a pool of blood
around his head. Massey found Valentine’s gun near his body, picked it up, and hid
it behind the apartment’s HVAC unit. He then hid the counterfeit bills under
Wilson’s mattress and called 911.
At the close of evidence, the trial court submitted a charge containing
standard statutory instructions on appellant’s claim of self-defense. The jury
rejected appellant’s self-defense claim, found him guilty of murder, and assessed
punishment at 20 years’ confinement. The trial court entered a judgment of
conviction in accordance with the jury’s verdict.
This appeal followed.
Legal Sufficiency
In his first issue, appellant argues that the evidence is legally insufficient to
support his conviction for murder because the State failed to prove beyond a
reasonable doubt that appellant did not act in self-defense. The State responds that
appellant’s argument applies an erroneous standard of review that views the
5
evidence in the light most favorable to his claim of self-defense and that, properly
viewed in the light most favorable of the verdict, the evidence proves beyond a
reasonable doubt that appellant did not act in self-defense.
A. Applicable law and standard of review
Under the Penal Code, as relevant here, 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 § 19.02(b)(1),
(2). It is a defense to prosecution for murder that the person’s use of deadly force
was “justified.” Id. §§ 9.02; 9.31–9.32; see Braughton v. State, 522 S.W.3d 714,
730 (Tex. App.—Houston [1st Dist.] 2017) (providing that deadly force used in
self-defense may be raised as justification for defendant’s actions and in support of
acquittal against murder charge), aff’d, 569 S.W.3d 592 (Tex. Crim. App. 2018). A
person’s use of deadly force is justified if, among other things, the person
“reasonably believes the deadly force is immediately necessary” to protect himself
“against the other’s use or attempted use of unlawful deadly force.” PENAL
§ 9.32(a)(2)(A).
In a claim of self-defense justifying a defendant’s use of deadly force against
another, the defendant bears the burden to produce evidence supporting the
defense, while the State bears the burden of persuasion to disprove the raised
6
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. In 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.Thus, in reviewing the sufficiency of the evidence to support a conviction for
murder when the jury has rejected a defendant’s claim of self-defense, we
determine whether, after viewing all of the evidence in the light most favorable to
the verdict, any rational jury would have found the essential elements of murder
beyond a reasonable doubt and also would have found against the defendant on the
self-defense issue beyond a reasonable doubt. Id. at 609.
B. Analysis
It is undisputed that the evidence presented at trial established the following
facts: On the night of the shooting, both appellant and Valentine arrived at
Wilson’s apartment armed with handguns for a drug deal in which appellant was
going to sell Valentine prescription-grade cough syrup at an agreed amount and
price. Valentine attempted to purchase the drugs with counterfeit money. Appellant
counted the money, said it was short, packed up the drugs, and began leaving the
apartment. But, before appellant could reach the apartment’s front door, Valentine
intercepted him, grabbed the front of his shirt, and pushed him against the wall,
7
thereby preventing appellant from leaving. Appellant then drew his gun from his
waistband, and, as Valentine turned, possibly reaching for his own gun, appellant
shot him in the back of the head, immediately incapacitating him. At some point,
Valentine’s firearm discharged as well (though exactly when and how are in
dispute), with the round ricocheting off the ground into one of the legs of the
couch.
Despite these undisputed facts, appellant, relying on four pieces of evidence,
argues that the evidence is legally insufficient to support the jury’s rejection of his
self-defense claim. We consider the evidence appellant claims proves self-defense.
1. Evidence that Valentine was armed and prepared to use force
First, appellant contends that the evidence shows that Valentine was armed
with a handgun and prepared to take the drugs by force, which, in turn, shows that
appellant reasonably believed that Valentine might use or attempt to use unlawful
deadly force against him. In support of his contention, appellant cites to Wilson’s
testimony recounting what Valentine told him before Bethea and appellant arrived
at the apartment, specifically, that he was armed, intended on buying the drugs
with counterfeit money, and was prepared to “just take” the drugs if appellant and
Bethea tried to “rob” him.
But, appellant does not cite to any testimony or other evidence showing that
appellant knew what Valentine told Wilson before he and Bethea arrived. Wilson
8
testified that he told neither Bethea nor appellant that Valentine was armed and
prepared to take the drugs by force. And, nothing in the record indicates that
appellant was otherwise aware or suspected that Valentine might use deadly force
during the drug deal.
A rational jury could have found that, when appellant drew and fired his
gun, he did not reasonably believe that the use of deadly force was immediately
necessary to protect himself against Valentine’s use or attempted use of his firearm
or other deadly force. Assuming that appellant was aware that Valentine was
armed and prepared to take the drugs by force, a rational jury could have found
that appellant’s knowledge of these facts did not support a reasonable belief that
deadly force was immediately necessary at the time of the shooting, as Valentine
had not yet drawn his gun or otherwise threatened to use it at that time.
2. Evidence that Valentine was large
Second, appellant contends that the evidence shows that Valentine was a
large, imposing individual,4 which, in turn, supports a finding that appellant
reasonably believed that deadly force was immediately necessary when Valentine
pushed appellant against the wall. Valentine’s large physical stature does not
compel—and does not even necessarily support—a finding that appellant
reasonably believed deadly force was immediately necessary to protect himself
4
Wilson’s testified that Valentine was roughly six feet tall and almost 300 pounds.
9
from Valentine, especially considering that appellant was armed. Whether
Valentine’s size justified a reasonable belief that deadly force was immediately
necessary was a question for the jury—a question the jury resolved in favor of the
State, not appellant.
3. Evidence that Valentine shot first
Third, appellant contends that the evidence conclusively proves that
Valentine shot first, which, in turn, supports a finding that appellant fired his
handgun (i.e., used deadly force) in justified self-defense. Appellant argues that the
evidence conclusively proves that Valentine shot first because the evidence also
conclusively proves two additional facts: (1) Valentine’s gun could not have
discharged without Valentine consciously pulling the trigger; and (2) Valentine
was immediately incapacitated when shot in the head.
Appellant contends that the first fact is conclusively proved by the testimony
of a tool-mark analyst, who testified that he tested Valentine’s gun’s trigger
mechanism and concluded that it would not have discharged without five pounds
of force being applied to the trigger. Appellant contends that the second fact is
conclusively proved by the testimony of the medical examiner, who testified that
Valentine’s head wound would have immediately incapacitated him and thereby
prevented him from deliberately discharging his firearm.
10
However, appellant’s contention ignores additional testimony from the
analyst and examiner, as well as testimony from Wilson and Massey, which
supports the opposite conclusion: that Valentine’s trigger pull was an involuntary
jerking produced by his being shot in the head as he was attempting to draw his
own gun after seeing appellant reach for his.
The medical examiner testified that Valentine’s incapacitating injury made
voluntary movement “unlikely.” But, she explained that an incapacitating head
injury can cause involuntary movement, such as the clinching of a fist. While she
could not say for sure what happened in appellant’s case, her testimony, viewed in
the light most favorable to the verdict, supports a finding that Valentine
involuntarily discharged his firearm after being shot in the head by appellant.
A finding that Valentine involuntarily discharged his firearm after being shot
is supported by three additional pieces of evidence:
• the testimony of Massey, who testified that he saw appellant draw his
firearm first;
• the autopsy, which showed that Valentine was shot in the back-left side of
his head; and
• the ballistics examination, which showed that when Valentine’s firearm was
discharged, it was aimed down and away from appellant.
This evidence supports a finding that Valentine, in response to seeing
appellant draw his gun, turned and attempted to pull his own gun out of his
11
waistband and then involuntarily discharged it when appellant shot him in the back
of the head.
Appellant contends that Wilson’s testimony supports a finding that
Valentine drew and fired his gun first. To the extent Wilson’s testimony may be
characterized as supporting such a finding—at times Wilson equivocated,
describing appellant and Valentine as drawing their guns simultaneously—we
assume that the jury disregarded the testimony and credited instead the evidence
supporting a finding that appellant drew and fired his gun first.
4. Evidence that the jury accepted appellant’s self-defense claim
Fourth, appellant contends that a note submitted by the jury during
deliberations and post-trial affidavits filed by his attorneys show that the jury
considered his self-defense claim to be valid. We disagree for two reasons.
First, neither the jury’s note nor the post-trial affidavits are relevant to our
sufficiency review. In reviewing the sufficiency of the evidence, an appellate court
considers only the evidence put before the jury and cannot consider any evidence
presented after the verdict. See Marines v. State, 292 S.W.3d 103, 106 n.1 (Tex.
App.—Houston [14th Dist.] 2008, pet. ref’d) (“The scope of a legal sufficiency
review is also limited to only that evidence before the jury.”). Thus, in reviewing
the sufficiency of the evidence here, we cannot consider the jury’s note or the post-
trial affidavits, as neither piece of evidence was presented to the jury.
12
Second, the affidavits filed by appellant’s lawyers are inadmissible. The
affidavits are hearsay, as they recount what certain jurors allegedly told appellant’s
lawyers about their deliberations. See TEX. R. EVID. 802. And, the affidavits are
incompetent because jurors are prohibited from testifying about their deliberations.
TEX. R. EVID. 606(b)(1).
Viewing the evidence in the light most favorable to the verdict, any rational
jury could have reasonably found that Appellant—engaged in a drug deal and
confronted with non-deadly force—drew his gun and fired without justification,
shooting Valentine in the back of the head and thereby causing his death.
Accordingly, we overrule appellant’s first issue.
Motion for New Trial
In his second issue, appellant contends that the trial court abused its
discretion in denying his motion for new trial by operation of law. See TEX. R. APP.
P. 21.8(a). The State responds that appellant failed to preserve the issue for our
review because he never presented the motion to the trial court. We agree.
Under the Rules of Appellate Procedure, a criminal defendant must timely
“present” a motion for new trial to the trial court. TEX. R. APP. P. 21.6. If the
defendant fails to timely present the motion, the issues raised in the motion are not
preserved for appellate review. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim.
App. 2005). To prove presentment, the record must show that the trial court had
13
actual notice of the defendant’s “desire for a ruling or a hearing on the motion.”
Arrellano v. State, 555 S.W.3d 647, 655 (Tex. App.—Houston [1st Dist.] 2018,
pet. ref’d).
But here, the record contains no notice of hearing, docket sheet entry setting
a hearing date, order resetting or denying the motion, “or other proof that the trial
court was actually aware of [appellant]’s request for a ruling or hearing on the
motion.” Id. Instead, the record only contains a file-stamped copy of appellant’s
motion and an email notifying the State that the motion had been filed. In other
words, the record merely shows that appellant’s motion was timely filed, which is
insufficient to show that the motion was timely presented. See Stokes v. State, 277
S.W.3d 20, 21 (Tex. Crim. App. 2009) (“Merely filing the motion is not sufficient
alone to show presentment.”); Arrellano, 555 S.W.3d at 655 (“Presentment
requires the defendant to go beyond simply filing the motion for new trial with the
trial court clerk.”); Longoria v. State, 154 S.W.3d 747, 762 (Tex. App.—Houston
[14th Dist.] 2004, pet. ref’d) (“To prove presentment, the record must contain more
than just proof that the motion was timely filed[.]”).
We hold that the record fails to show that appellant timely presented his
motion for new trial to the trial court, and that, as a result, appellant has failed to
preserve for appellate review the denial of his motion by operation of law.
Accordingly, we overrule appellant’s second issue.
14
Jury Question
In issue four, appellant contends that “[t]he trial court erred by failing to
provide an adequate response To The Question Presented By The Jury During
Guilt/Innocence Deliberations.”
A. Background
At trial, appellant claimed that he acted in self-defense, which permits a
person’s use of deadly force if the actor reasonably believes the force used was
immediately necessary to protect the person against the other’s use or attempted
use of unlawful deadly force. See TEX. PENAL CODE §§ 9.31–.32. The defense
provides that, under certain circumstances, the defendant is entitled to a
presumption that deadly force was immediately necessary. See id. § 9.32(b). That
presumption is not available to a defendant “engaged in criminal activity,” other
than certain misdemeanor traffic offenses, at the time the deadly force is used. Id.
at § 9.32(b)(3).
Because appellant produced some evidence in support his use of deadly
force in self-defense, the trial court submitted a self-defense charge to the jury,
which included (1) definitions of the relevant statutes, (2) the burden of proof for
self-defense, (3) relevant statutory definitions, (4) law of the issue of retreat, and
(5) the presumption that deadly force is necessary under certain circumstances. In
15
particular, the presumption-of-reasonableness instruction,5 which tracked text the
language of Penal Code section 9.32(b) of the Texas Penal Code, stated:
An actor’s belief that deadly force was immediately necessary is
presumed to be reasonable if:
1. the actor 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 aggravated
kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery; and
2. the actor did not provoke the person against whom the force
was used; and
3. the actor 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.
5
Appellant did not object to the submission of the presumption-of-reasonableness
charge at the charge conference, though he did object to the prosecution’s
reference to it during voir dire. However, a defendant cannot preserve charge error
during jury selection. See Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App.
App. 1996) (noting that to preserve charge error, defendant must object to charge
or request submission of particular instruction or question). Thus, appellant’s
objection to the submission of the presumption-of-reasonableness charged is
waived. See Sanchez v. State, 209 S.W.3d 117, 120–21 (Tex. Crim. App. 2006)
(holding that errors subject to procedural default may not be remedied by appellate
court as unassigned error unless error was preserved).
16
If you find the State has disproved one or more of elements 1, 2, or 3
listed above, the presumption does not apply and you are not required
to find that the actor’s belief was reasonable.
See id. § 9.32(b) (establishing presumption of reasonableness).
During deliberations, the jury submitted a written question to the trial court,
which asked:
In reference to Section 3, Page 14, does the admitted commission of a
crime, sale of a controlled substance, negate the basis of a claim of
self-defense?
Appellant urged the trial court to respond to the question with “a simple
‘no,’” arguing that the question showed that the presumption-of-reasonableness
instruction, included in the abstract portion of the charge without objection, had
confused the jury. Appellant argued that a simple one-word response of “no”
would provide additional guidance on the applicable law and clarify the jury’s
confusion caused by the alleged confusing instruction. The State, in contrast, urged
the trial court to simply refer the jury to the charge, arguing that the charge
accurately set forth the applicable law and that a substantive response, however
short, would constitute an improper comment on the evidence. The trial court
agreed with the State.
In response to the jury’s question, the trial court wrote on the form
document, “You have been given the law.” The trial court also checked a box on
the form stating, “The court under the law is not permitted to answer the question
17
that you have presented. Please refer to and follow the instructions already given
you. And continue your deliberations.”
B. Applicable law and standard of review
“Although the trial court ordinarily provides instructions to the jury in their
entirety before the jury retires to deliberate, the court may give further written
instructions upon the jury’s written request for additional guidance regarding
applicable law.” Lucio v. State, 353 S.W.3d 873, 875 (Tex. Crim. App. 2011); see
TEX. CODE CRIM. PROC. art. 36.16 (providing that court may give “further charge”
to jury upon jury’s request after parties complete closing arguments), id. art. 36.27
(providing that court “shall answer any [jury] communication in writing”). A trial
court’s substantive response to a jury question “essentially amounts to a
supplemental jury instruction” and is therefore governed by the “same rules” that
“generally govern jury instructions.” Lucio, 353 S.W.3d at 875.
“Because a trial court’s answer to a jury’s question must comply with the
same rules that govern charges, the trial court, as a general rule, must limit its
answer to setting forth the law applicable to the case; it must not express any
opinion as to the weight of the evidence, sum up the testimony, discuss the facts, or
use any response calculated to arouse the sympathy or excite the passions of the
jury.” Id.; see TEX. CODE CRIM. PROC. art. 36.14. “If the request from a jury for
additional instructions is not proper, the court should refer the jury to the court’s
18
charge.” Ash v. State, 930 S.W.2d 192, 196 (Tex. App.—Dallas 1996, no pet.)
(citing Gamblin v. State, 476 S.W.2d 18, 20 (Tex. Crim. App. 1972)).
C. Analysis
The jury’s question asked, “In reference to [the presumption of
reasonableness instruction], does the admitted commission of a crime, sale of a
controlled substance, negate the basis of a claim of self-defense?” No provision of
the Penal Code specifically answers this question although the answer can be
easily derived from the code’s more general provisions as well as caselaw
construing same. See, e.g., Barrios v. State, 389 S.W.3d 382, 393 (Tex. App.—
Texarkana 2012, pet. ref’d) (“When the accused is engaged in other criminal
activity, the statute does not disqualify the accused from defending his or her use
of force, it simply removes the presumption that his or her use of force was
reasonable—a significant difference.”). Thus, the jury’s question asked the trial
court for a non-statutory instruction.
But, non-statutory instructions are generally impermissible. As the Texas
Court of Criminal Appeals has explained, “[W]e reject non-statutory instructions
as improper comments on the weight of the evidence where such instructions are
unnecessary to clarify the law and they also draw the jury’s attention to a particular
type of evidence.” Beltran De La Torre v. State, 583 S.W.3d 613, 618 (Tex. Crim.
App. 2019).
19
Thus, to determine whether the trial court erred in refusing to answer the
jury’s question, we consider whether an answer (1) was unnecessary to clarify the
law and (2) would have drawn the jury’s attention to a particular type of evidence.
1. Answering the jury’s question was unnecessary to clarify the law
Appellant argues that an answer to the jury’s question was necessary to
clarify the law because the charge erroneously instructed the jury on the
presumption of reasonableness and thereby confused the jury. Appellant argues
that the trial court erred in giving the presumption-of-reasonableness instruction
because it was undisputed at trial that appellant engaged in criminal activity when
he used deadly force. For this reason, he argues, the statutory presumption of
reasonableness was not law applicable to the case, so the instruction was erroneous
and confusing, as evidenced by the jury’s question, which showed that the jury
misconstrued the instruction to mean that appellant’s criminal activity negated his
claim of self-defense. We disagree.
First, it was not undisputed that appellant was engaged in criminal activity at
the time of the shooting. During voir dire, appellant offered to stipulate to engaging
in criminal activity at the time of the shooting, but he never actually made such a
stipulation. In his opening statement, appellant argued that there was “no evidence”
that he was “a part of the negotiations” or “in control” of the drugs, which, he
added, had “never been tested,” thereby suggesting a controlled substance was
20
never even brought to Wilson’s apartment. Then, during closing argument,
appellant’s counsel told the jury that they should have doubts about the witnesses’
credibility and the “kind of investigation” that was done, again suggesting that
appellant never actually possessed a controlled substance.
At trial, neither witness involved in the alleged drug transaction could say
what was in the bottles, and the alleged drugs were never found or tested.
Thus, it was disputed whether appellant was engaged in criminal activity—
possession with intent to distribute a controlled substance—at the time of the
shooting, and the evidence presented at trial does not conclusively resolve the issue
either way. Whether appellant was involved in criminal activity was a question for
the jury.6 The trial court could not be satisfied beyond a reasonable doubt that the
evidence clearly precluded a finding that appellant did not engage in criminal
activity. Thus, the presumption of reasonableness was properly submitted to the
jury. See TEX. PENAL CODE § 2.05(b).
Second, the presumption-of-reasonableness instruction was not confusing; it
accurately stated the law, and the jury’s question does not rebut the presumption
6
Appellant argues that he was committing the offense of felon in possession of a
firearm and therefore would not have been entitled to the submission of the
presumption of reasonableness. However, no evidence of appellant’s prior felony
conviction was introduced until the punishment phase. The jury would not have
known that appellant was a felon in possession of a firearm during the
guilt/innocence phase.
21
that the jury followed the charge’s instructions. See, e.g., Colburn v. State, 966
S.W.2d 511, 519 (Tex. Crim. App. 1998) (holding that jury note indicating
improper consideration of parole did not overcome presumption that jurors
followed court’s contrary instructions); Thompson v. State, No. 02-18-00230-CR,
2019 WL 1065925, at *8 (Tex. App.—Fort Worth Mar. 7, 2019, pet. ref’d) (mem.
op., not designated for publication) (holding that presumption that jury followed
law not overcome when jury note indicated jury improperly considered parole “at
some preliminary point in deliberations” and trial court’s response referred jury to
correct instruction in charge).
We hold that an answer to the jury’s question was unnecessary to clarify the
law. See Walters, 247 S.W.3d at 212–14 (holding that trial court did not err in
denying non-statutory instruction informing jury that it could consider prior verbal
threats in deciding issue of self-defense when (1) charge already covered substance
of instruction and (2) instruction would have improperly focused jury’s attention
on specific type of evidence supporting finding of self-defense); Brown, 122
S.W.3d at 802–03 (rejecting jury instruction that “intent or knowledge may be
inferred by acts done or words spoken” because, while neutral, it focused the jury’s
attention on evidence that might support finding of criminal intent, improperly told
jury how to consider certain evidence, and improperly instructed jury on rule of
appellate-evidentiary-sufficiency review).
22
2. Answering the jury’s question would have drawn attention to a
particular type of evidence
We now consider whether an answer to the jury’s question would have
drawn the jury’s attention to a particular type of evidence.
Under Texas law, a defendant’s engagement in criminal activity at the time
of the offense does not preclude a claim of self-defense, but the jury may consider
it in determining the reasonableness of the defendant’s belief that the use of deadly
force was immediately necessary. Evidence of the defendant’s criminal activity not
only precludes the presumption of reasonableness, but it can also support a finding
that the defendant’s belief was unreasonable, thereby negating self-defense
entirely. In fact, the State argued as much in this case, given that appellant arrived
at a drug deal with a firearm.
Had the trial court responded to the jury note by saying, “No,” or “No, the
admitted commission of a crime does not negate the basis of a self-defense claim,”
the trial court would have implicitly endorsed appellant’s theory of the case and
drawn the jury’s attention away from the evidence that appellant used deadly force
while engaged in a drug deal and toward the evidence that appellant used deadly
force in response to Valentine’s use of physical force to prevent appellant from
leaving the apartment. By drawing the jury’s attention away from one type of
evidence and toward another type of evidence, an answer to the jury’s question
could have impacted how the jury weighed the evidence of the reasonableness of
23
appellant’s belief in his need to use deadly force. We hold that an answer to the
jury’s question would have drawn the jury’s attention to a particular type of
evidence.
Because an answer to the jury’s question was unnecessary to clarify the law
(as the charge set forth standard statutory instructions from which the answer could
be derived) and would have drawn the jury’s attention to a particular type of
evidence (i.e., evidence supporting appellant’s self-defense claim), we hold that the
trial court did not err in refusing to answer the question and instead referring the
jury to the charge. See Walters v, State, 247 S.W.3d 204, 212–14 (Tex. Crim. App.
2007) (holding that trial court did not err in denying non-statutory instruction
informing jury that it could consider prior verbal threats in deciding issue of self-
defense when (1) charge already covered substance of instruction and (2)
instruction would have improperly focused jury’s attention on specific type of
evidence supporting finding of self-defense); see also Brown v. State, 122 S.W.3d
794, 802-03 (Tex. Crim. App. 2003) (rejecting requested jury instruction that
“intent or knowledge may be inferred by acts done or words spoken” because,
while neutral, requested instruction focused jury’s attention on evidence that might
support finding of criminal intent, improperly told jury how to consider certain
evidence, and improperly instructed jury on rule of appellate-evidentiary-
sufficiency review).
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Accordingly, we overrule appellant’s third issue.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consisted of Chief Justice Radack and Justices Goodman and Farris.
En Banc reconsideration was requested. TEX. R. APP. P. 49.7.
A majority of the justices of the Court voted in favor of reconsidering the case en
banc.
The en banc court consists of Chief Justice Radack and Justices Kelly, Goodman,
Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.
Chief Justice Radack, writing for the majority of the en banc court, joined by
Justices Kelly, Landau, Hightower, Countiss, Rivas-Molloy, and Guerra.
Justice Goodman, dissenting.
Justice Farris, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
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