Lively James Stratton Jr. v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00140-CR
__________________
LIVELY JAMES STRATTON JR., Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 19-33601
__________________________________________________________________
MEMORANDUM OPINION
A jury found Lively James Stratton Jr. (“Lively”) guilty of capital murder of
multiple persons and he was sentenced to confinement for life. See Tex. Penal Code
Ann. § 19.03(a)(7). In four issues on appeal, Lively complains about the admission
of evidence, sufficiency of the evidence, and jury charge error. We affirm the trial
court’s judgment.
PERTINENT BACKGROUND
The indictment alleged that on or about September 29, 2019, Stratton:
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PARAGRAPH ONE
then and there intentionally and knowingly cause the death of an
individual, namely ELIJAH ISIAH RIDEAU, by shooting ELIJAH
ISIAH RIDEAU with a firearm, and did then and there intentionally
and knowingly cause the death of another individual, namely BOBBY
LEE WYATT, by shooting BOBBY LEE WYATT with a firearm, and
both murders were committed during the same criminal transaction,
PARAGRAPH TWO
then and there intentionally and knowingly cause the death of an
individual, namely ELIJAH ISIAH RIDEAU, by shooting ELIJAH
ISIAH RIDEAU with a firearm, and did then and there intentionally
and knowingly cause the death of another individual, namely
SHANNON CHRISTOPHER SUTTON, by shooting SHANNON
CHRISTOPHER SUTTON with a firearm, and both murders were
committed during the same criminal transaction,
PARAGRAPH THREE
then and there intentionally and knowingly cause the death of an
individual, namely ELIJAH ISIAH RIDEAU, by shooting ELIJAH
ISIAH RIDEAU with a firearm, and did then and there intentionally
and knowingly cause the death of another individual, namely ALVIN
LEE BELLARD, by shooting ALVIN LEE BELLARD with a firearm,
and both murders were committed during the same criminal transaction,
PARAGRAPH FOUR
then and there intentionally and knowingly cause the death of an
individual, namely BOBBY LEE WYATT, by shooting BOBBY LEE
WYATT with a firearm, and did then and there intentionally and
knowingly cause the death of another individual, namely SHANNON
CHRISTOPHER SUTTON, by shooting SHANNON CHRISTOPHER
SUTTON with a firearm, and both murders were committed during the
same criminal transaction,
PARAGRAPH FIVE
then and there intentionally and knowingly cause the death of an
individual, namely BOBBY LEE WYATT, by shooting BOBBY LEE
WYATT with a firearm, and did then and there intentionally and
knowingly cause the death of another individual, namely ALVIN LEE
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BELLARD, by shooting ALVIN LEE BELLARD with a firearm, and
both murders were committed during the same criminal transaction,
PARAGRAPH SIX
then and there intentionally and knowingly cause the death of an
individual, namely SHANNON CHRISTOPHER SUTTON, by
shooting SHANNON CHRISTOPHER SUTTON with a firearm, and
did then and there intentionally and knowingly cause the death of
another individual, namely ALVIN LEE BELLARD, by shooting
ALVIN LEE BELLARD with a firearm, and both murders were
committed during the same criminal transaction[.]
Since the State elected not to seek the death penalty, Lively’s punishment was
automatic life imprisonment or life imprisonment without parole. See Tex. Code
Crim. Proc. Ann. art. 37.071 § 1(a).
Officer Shawn Tolley with the Beaumont Police Department testified that she
oversaw the 9-1-1 office and the police dispatch office. Officer Tolley explained that
two 9-1-1 calls concerning this case were recorded on September 29, 2019, and those
calls were played to the jury. Both callers reported that they heard multiple gunshots
in an upstairs apartment. One of the callers, E.L., 1 who lived in the downstairs
apartment, testified that the day before the shootings occurred, he saw Lively and
Rideau arguing over a bag of pills that went missing, and Lively was very mad and
upset with everyone upstairs. The next morning, E.L. heard Rideau arguing with
1To protect the privacy of the witnesses that testified concerning the murders,
they are identified by their initials.
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somebody on the phone, and he heard the other person “talking about coming back
to shoot people.”
After E.L. heard Rideau arguing on the phone, he saw Lively drive up, heard
footsteps going upstairs and shots fired, and saw Lively drive off alone in his silver
car. E.L. testified that he did not hear a confrontation or scuffle before the shots were
fired. E.L. explained that within a “split second” of hearing someone knock on the
door, shots were fired and “chaos was unleashed.” S.K., E.L.’s wife, testified that
she also heard Rideau arguing on the phone about pills, and about ten to twenty
minutes later, she heard one set of heavy footsteps go upstairs and shots fired, and
then saw Lively drive off alone in his silver car. S.K. added that she did not hear an
argument or any fighting before she heard the gunfire.
Officer James Gillen, a City of Beaumont patrol officer, was in the area when
he heard multiple shots fired, and he logged the plates of a silver car containing two
people, which he observed leaving the residence where the murders occurred.
Officer Gillen was wearing a body camera when he entered the residence and
observed four male bodies in the upstairs apartment, and he explained that there was
blood everywhere and two of the males were lifeless, one was involuntarily
twitching, and the fourth male was moaning, crying for help, and “somewhat
talking.” Officer Gillen explained that when he asked the fourth male, who was
identified as Rideau, what happened, Rideau responded, “Lively, he shot us.” Officer
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Gillen explained that when he was questioning a witness about what happened,
Rideau again responded, “Lively.” Officer Gillen also explained the witness
reported that Lively’s girlfriend was with him. Officer Gillen testified that Lively
was identified as a suspect. Regarding the crime scene, Officer Gillen testified that
he observed an open butterfly knife laying on the ground and a folded-up pocketknife
not much larger than a lighter. The videos from Officer Gillen’s patrol car camera
and body camera were admitted into evidence.
Sergeant Daniel McCauley with the Beaumont Police Department testified
that when he arrived at the scene his body camera was activated, and he observed a
gruesome scene with four people on the ground and heard someone moaning and
asking for help. Sergeant McCauley testified that he heard Rideau respond to Officer
Gillen that Lively shot them and that Rideau reported that Lively was above him
when he shot. Sergeant McCauley explained that he observed an open butterfly knife
that appeared to have blood on it near the body closest to the door and another knife
was close to Bobby Wyatt’s body. Sergeant McCauley explained that a butterfly
knife is a deadly weapon capable of causing serious bodily injury. Sergeant
McCauley explained that the scene did not indicate who was threatening whom, or
whether someone had used self-defense. Sergeant McCauley agreed that a person
could use deadly force to prevent a robbery. Officer McCauley’s body camera video
was admitted into evidence.
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Sergeant Yvette Borrero of the Beaumont Police Department testified that she
interviewed E.L. and S.K., and she also interviewed B.W., who was with Lively on
the day the murders occurred. B.W. testified that she was living with her friend,
Lively in an upstairs room in the residence where the murders occurred. She
explained that she knew the victims, and she said that they used drugs. According to
B.W., the day before the murders occurred, she and Lively returned to their room
after staying at a motel and discovered the door had been kicked open and the
television was gone. B.W. testified that Lively was very upset and mad at Rideau
because he thought Rideau had taken the television. B.W. explained that the night
before the murders, Lively, Rideau and Sutton had argued over the telephone, and
Lively was hurt and upset because he felt Rideau and Sutton had disrespected and
bullied him.
B.W. added that the next morning, Lively told her “[d]on’t stop or go to the
house because he was gonna kill them.” B.W. testified that they picked up their
friend, D.J., and got a gun and when they went to the apartment in a silver car and
discovered Stratton’s air conditioner was missing, Lively asked D.J. for the gun,
cocked it, and knocked on the victim’s door. B.W. explained that when Rideau
opened the door, “they had words but it wasn’t, like, a heated argument but they had
words, and then that’s when I heard gunshots go off.” B.W. testified that she “didn’t
think that he was actually gonna do it.” B.W. also testified that she did not hear any
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other victims arguing with Lively, any scuffling, or Lively crying for help, and when
they left, she saw three dead and saw Rideau fighting for his life. B.W. explained
that Lively had not been stabbed, and he did not claim he was attacked, threatened,
or had acted in self-defense. B.W. admitted that she initially lied to the police about
what occurred because she was scared after hearing the gun shots, seeing three dead
and Rideau fighting for his life, and what Lively might do to her.
Dr. Selly Rae Strauch Rivers, a forensic pathologist, testified that she
reviewed the victims’ autopsies. Regarding Bellard, Dr. Rivers testified that he had
two penetrating gunshot wounds to the head, and she explained that stippling was
identified regarding one of the gunshot wounds, which indicated that the muzzle of
the gun was from two inches to two feet away from Bellard when he was shot. Dr.
Rivers explained that the second wound was a distant range wound, indicating that
the two gunshots came at different distances. Dr. Rivers testified that Bellard’s
autopsy toxicology showed that he was positive for delta-9 THC, amphetamine, and
methamphetamine, and she explained that based on the level of the drugs in his
system she could not determine how the drugs might have affected his behavior.
Dr. Rivers testified that Rideau’s autopsy showed that he had three perforating
gunshot wounds. Dr. Rivers explained that Rideau had a gunshot wound that would
not have been fatal to his head, near the front of his right ear, which she attributed
to a gun fired at a distance of more than two feet. She added that Rideau had a fatal
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distant wound to the left deltoid that perforated his lung. Dr. Rivers explained that
the wound to Rideau’s lung caused it to fill with blood, which resulted in Rideau
being able to communicate only for a short while. Dr. Rivers testified that the third
wound was a distant wound to Rideau’s left thigh, which transected the femoral vein
and would have caused blood to drain from his body very quicky. As to the
toxicology tests, Dr. Rivers added that Rideau’s results showed he was positive for
THC, amphetamine, and methamphetamine, but she could not from the toxicology
results testify about how the drug levels would have affected his behavior.
Addressing the conclusions she reached after she performed an autopsy on
Wyatt’s body, Dr. Rivers testified that he suffered gunshot wounds to the head, right
upper interior torso, torso, and left upper extremity. Dr. Rivers explained that the
wound to his head was a fatal distant wound to the right temporal scalp and the
wound to his right upper interior torso was a nonlethal distant wound. Dr. Rivers
further explained that the torso wound was a fatal, distant range wound, which
passed through the colon. Lastly, Dr. Rivers explained that the upper extremity
wound was a nonlethal distant range wound to Wyatt’s left hand. As to Wyatt’s
toxicology results, Dr. Rivers testified Wyatt was positive for amphetamine and
methamphetamine, and she said she could not express an opinion about how the
drugs might have affected his behavior.
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Turning to Sutton’s autopsy, Dr. Rivers testified that it showed he suffered
distant gunshot wounds to his head and neck. Dr. Rivers explained the wound to the
neck was a near immediately fatal wound that had severed Sutton’s spinal cord. Dr.
Rivers testified that Sutton suffered a nonlethal distant gunshot wound to the right
upper extremity. Sutton’s autopsy toxicology showed he was positive for delta THC,
amphetamine, and methamphetamine, and she had no opinion as to how the levels
in his system would have affected his behavior.
On cross-examination, Dr. Rivers agreed that methamphetamine could cause
aggressive behavior, hallucinations and irrational behaviors. She also clarified that
her use of term “distant” meant at least two or more feet, and she testified that all the
victims were facing the weapon when shot. However, on redirect Dr. Rivers testified
that after reviewing the autopsy, she determined Rideau’s head wound was back to
front.
Lively testified in his defense. According to Lively, D.J. was his friend and in
a sexual relationship with B.W., who had been his friend since they were in grade
school. Lively testified that B.W. lived with him in his upstairs room and D.J. stayed
with them. Lively explained that he got to know Rideau and Wyatt after they moved
into another upstairs room as well as their friends, Sutton and Bellard. Lively
testified that he had planned to move out because he did not like the company that
the victims kept around, and when he and B.W. returned from the motel, he noticed
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his door had been kicked in and his televisions were missing. Lively explained that
he talked to Rideau on the phone about his missing items and Lively claimed to be
upset and scared. Lively also explained that he told B.W. that he was going to get
his “stuff” back.
Lively denied telling B.W. that he was going to kill the victims, and he
explained that he wanted DJ to come so he could help him move the rest of his
“stuff”. Lively claimed that he was just going to ask if they had seen any of his
“stuff”, but when he got to his room he discovered his air conditioning units, car
title, suitcase, and other items had been stolen. Lively testified that he asked D.J. for
his firearm, which was for protection in case anything happened when he asked them
about his “stuff”. Lively explained that he was concerned about confronting the four
victims because they had a history and he had already had words with Rideau.
Lively testified that before he knocked on the door, he had the gun in his
pocket and a bullet in the chamber. Lively explained that he saw his television when
he walked into the room to question them, and he described Rideau as aggressive,
with an attitude, and he said Bellard closed the door, locked him in, and wielded a
butterfly knife while walking towards him. Lively added that he was in “absolute
fear[]” and concerned they were going to try to harm him, because all four of them
were acting aggressive, closing in on him, and were “high.” Lively testified that
Wyatt told Rideau to grab the other blade and when he saw Bellard moving toward
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him, he pulled the gun out of his pocket and “just shot.” Lively explained that when
he turned around and saw Rideau in his “direct space,” he shot Rideau and then shot
Wyatt and Sutton, who both continued to approach him. Lively agreed that Rideau,
Wyatt, and Sutton were unarmed when he shot them. According to Lively, he fired
his gun eleven times, with five of them at someone’s head.
Lively testified he felt “pure terror[]” and that he thought his actions were
reasonable because he was in fear that they were going to cause him serious bodily
injury or death. According to Lively, he “just reacted.” As Lively told it, he wanted
to get away because he thought someone there might have had a gun. Yet Lively
admitted that he never saw anyone else with a gun. Lively explained he did not
immediately go to the police after the shooting because he feared he would be treated
like a criminal. Lively admitted he intentionally and knowingly shot all four victims
in the head, intending to kill them, but claimed he was justified in doing so.
In the charge, the trial court included instructions defining self-defense. The
jury returned a verdict finding Lively guilty of capital murder of multiple persons as
alleged in the fourth paragraph of the indictment, which alleged that Lively
intentionally and knowingly caused the death of Wyatt and Sutton by shooting them
with a firearm during the same criminal transaction.
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ANALYSIS
In issue one, Lively complains the trial court erred by admitting Rideau’s
dying declaration into evidence. Lively filed a Motion to Exclude Dying
Declaration, challenging the admission of Officer Gillen’s testimony and the video
recordings made from Officer Gillen’s and Officer McCauley’s body cameras.
Lively argued that Rideau’s statement did not meet the requirements of the dying
declaration exception under Texas Rule of Evidence 804 because there was no
evidence that Rideau knew his death was imminent or that he knew that he was at
death’s door.
We apply the abuse of discretion standard to determine whether the State met
its burden to prove that a statement was admissible as a dying declaration. See
Montgomery v. State, 810 S.W.2d 372, 390–93 (Tex. Crim. App. 1991) (op. on
reh’g); Scott v. State, 894 S.W.2d 810, 811 (Tex. App.—Tyler 1994, pet. ref’d).
Under the dying-declaration exception, a statement by a declarant, “while believing
the declarant’s death to be imminent, made about its cause or circumstances” is
admissible as an exception to the hearsay rule. Tex. R. Evid. 804(b)(2). For the
statement to be admissible as a dying declaration, it must meet three requirements:
(1) the declarant must be unavailable; (2) the declarant, at the time he makes the
statement, must believe his death is imminent; and (3) the statement must concern
the cause or circumstances of the potential impending death. Scott, 894 S.W.2d at
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811; see Tex. R. Evid. 804(b)(2). “Contemplation of death may be inferred from
surrounding circumstances; it is not necessary that the [defendant] specifically
express [his] awareness of impending death.” Thomas v. State, 699 S.W.2d 845, 853
(Tex. Crim. App. 1985), superseded on other grounds by, Najar v. State, 618 S.W.3d
366, 371–72 (Tex. Crim. App. 2021); Jones v. State, No. 03-17-00328-CR, 2017
WL 3585205, at *3 (Tex. App.—Austin Aug. 15, 2017, pet. ref’d) (mem. op., not
designated for publication).
Circumstances to consider in evaluating a potential dying declaration include:
(1) the express language of the declarant; (2) the nature of the injury; (3) any medical
opinion provided to the declarant; and (4) the conduct of the declarant. Scott, 894
S.W.2d at 812 (citing Thomas, 699 S.W.2d at 853); see Taylor, v. State, No. 12-15-
00299-CR, 2017 WL 2962988, at *2 (Tex. App.—Tyler July 12, 2017, pet. ref’d)
(mem. op., not designated for publication). Rule 804(b)(2) requires sufficient
evidence, direct or circumstantial, that demonstrates that the declarant must have
realized that he was at death’s door when he spoke. Gardner v. State, 306 S.W.3d
274, 290 (Tex. Crim. App. 2009).
Rideau’s sense of impending death may be established by his express words,
his conduct, the severity of his wounds, the opinions of others stated to him, or any
other relevant circumstances. See id. Moreover, the fact that Rideau’s statements
were made in response to a question does not render it inadmissible. See Scott, 894
13
S.W.2d at 812. The question, “Who did this to you?” is not an impermissible leading
question because it does not suggest which answer is desired. See Taylor, 2017 WL
2962988, at *3 (citations omitted).
During the pretrial hearing, the trial court reviewed the video recordings from
Officer Gillen’s and Sergeant McCauley’s body cameras and heard arguments about
the admissibility of Rideau’s dying declaration. The videos show that when the
officers arrived, they found Rideau lying in the room with three other men who were
nonresponsive. Rideau was moaning and crying out for help. When Officer Gillen
asked Rideau what happened, Rideau responded, “Lively, he shot us. I need help.”
When Officer Gillen questioned another person about the identity of the person who
had just left the house, Rideau is heard in the background stating, “Lively.” When
Officer Gillen questioned Rideau about who shot him, Rideau again stated, “Lively.”
Sergeant McCauley’s video shows that when McCauley asked Rideau where he had
been shot, Rideau responded that he had been shot in his arm, side, and chin.
Sergeant McCauley’s video also captured Rideau’s statements that Lively shot him.
The videos show that Rideau was aware of the nature of his injuries and that
he needed help. See King v. State, No. 06-21-00149-CR, 2022 WL 2163020, at *2
(Tex. App.—Texarkana June 16, 2022, pet. ref’d) (mem. op., not designated for
publication). While Rideau did not make any specific statements expressing that his
death was imminent, it was not unreasonable for the trial court to infer from the
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entire record that Rideau could have reasonably believed that under the
circumstances his death was imminent given the severity of his injuries and the fact
that he is heard in the video calling out for help. See Jones, 2017 WL 3585205, at
*4; Scott, 894 S.W.2d at 811–12. The direct and circumstantial evidence allowed the
trial court to infer that Rideau realized his death was imminent when he spoke to
Officer Gillen and Sergeant McCauley. See Gardner, 306 S.W.3d at 290–91; King,
2022 WL 2163020, at *2; Scott, 894 S.W.2d at 812.
After reviewing the videos, the trial court stated on the record that based on
the totality of the circumstances, including that Rideau was found lying near three
other people who appeared nonresponsive, knew he had been shot multiple times,
and was asking for help and unable to move, Rideau’s statement qualified as a dying
declaration. Accordingly, we conclude the trial court did not abuse its discretion in
admitting Rideau’s statements as dying declarations, so we overrule issue one.
In issue two, Lively contends the evidence was sufficient to find him not guilty
based on self-defense. We review the sufficiency of the evidence supporting a jury’s
rejection of a self-defense claim under the Jackson v. Virginia standard. Braughton
v. State, 569 S.W.3d 592, 607–08 (Tex. Crim. App. 2018); see Jackson v. Virginia,
443 U.S. 307, 319 (1979); Smith v. State, 355 S.W.3d 138, 144 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d). In evaluating whether the evidence is sufficient, we
review all the evidence in the light most favorable to the prosecution to determine
15
whether any rational trier of fact would have found the essential element of the
offense beyond a reasonable doubt and would have found against the defendant on
the self-defense issue beyond a reasonable doubt. Braughton, 569 S.W.3d at 609
(citing Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991)). We give
deference to the jury to resolve any conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from the facts. See Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007). We treat direct and circumstantial evidence
equally: “Circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to establish
guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is entitled
to judge the credibility of the witnesses and can choose to believe all, some, or none
of the witnesses’ testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim.
App. 1991).
A person commits the offense of capital murder of multiple persons if he
commits murder as defined by section 19.02(b)(1) of the Texas Penal Code and
murders more than one person during the same criminal transaction. See Tex. Penal
Code Ann. §§ 19.02(b)(1), 19.03(a)(7)(A). A person commits murder either by (1)
“intentionally or knowingly” causing a death, or (2) intending to cause “serious
bodily injury” through an act “clearly dangerous to human life that causes the death
of an individual[.]” Id. § 19.02(b)(1), (2). A person acts “intentionally” with respect
16
to the nature or a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result. See id. § 6.03(a). A person acts
“knowingly” with respect to the nature of his conduct when he is aware of the nature
of his conduct, and a person acts “knowingly” with respect to a result of his conduct
when he is aware that his conduct is reasonably certain to cause the result. Id. §
6.03(b).
Section 9.31 of the Penal Code provides that a person is justified in using force
against another when and to the degree that person reasonably believes the force is
immediately necessary to protect himself against another person’s use or attempted
use of unlawful force. Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App.
2017); see Tex. Penal Code Ann. § 9.31(a). A person is justified in using deadly
force if he would be justified in using force under section 9.31, and he reasonably
believed that deadly force was immediately necessary to protect himself against
another’s use or attempted use of deadly force. Gamino, 537 S.W.3d at 510; see Tex.
Penal Code Ann. § 9.32(a). The Penal Code defines the term “reasonable belief” to
mean a “belief that would be held by an ordinary and prudent man in the same
circumstances as the actor.” Tex. Penal Code Ann. § 1.07(42). A person’s belief that
deadly force was immediately necessary is presumed to be reasonable if the actor
did not provoke the person against whom the force was used, was not otherwise
engaged in a criminal activity other than a Class C misdemeanor, and knew or had
17
reason to believe that the person against whom the force was used: (1) unlawfully
and with force entered or attempted to enter the actor’s habitation, vehicle, or place
of business; (2) unlawfully and with force removed or attempted to remove the actor
from his habitation, vehicle, or place of business; or (3) was committing or
attempting to commit aggravated kidnapping, murder, sexual assault, aggravated
sexual assault, robbery, or aggravated robbery. Id. § 9.32(b)(1).
A defendant bears the burden to produce evidence supporting a claim of self-
defense, and if met, the burden shifts to the State to disprove the defense. See
Braughton, 569 S.W.3d at 608. The defendant’s burden requires the production of
some evidence to support a claim of self-defense, and the State bears the burden of
persuasion to disprove the defense. Id. at 608–09 (citing Zuliani v. State, 97 S.W.3d
589, 594 (Tex. Crim. App. 2003)). A jury’s guilty verdict is an implied rejection of
a defendant’s self-defense claim. Id. at 609.
The jury considered Lively’s testimony that he had the gun in his pocket and
a bullet in the chamber before he knocked on the door since he already had words
with Rideau and was concerned about confronting the victims. Lively admitted he
intentionally and knowingly shot all four victims in the head with the intent to kill
them, but claimed he was justified in doing so. Lively testified that he was in absolute
fear because Bellard wielded a butterfly knife at him, Wyatt told Rideau to grab the
other blade, and all four victims aggressively closed in on him, but he also testified
18
that Rideau, Wyatt, and Sutton were unarmed when he shot them. The jury heard
Lively testify that even though he never saw any of the victims with a gun, he thought
his actions were reasonable because they might have had a gun and he was in fear
they were going to cause him serious bodily injury or death.
The jury’s decision to reject Lively’s claim of self-defense could have hinged
on the credibility of the witnesses and the weight the jury decided to give to their
testimony. See Smith, 355 S.W.3d at 146 (citing Chambers, 805 S.W.2d at 461). The
testimony of a defendant does not conclusively prove a self-defense claim. Id. Here,
the jury chose not to believe Lively’s testimony that he acted in self-defense when
he shot the four victims a total of eleven times, with each of the victims being shot
at least once in the head, and one victim with two shots to the head. Given the
evidence supporting the finding that Lively committed murder, Lively’s testimony
that he acted in self-defense does not overcome the evidence found by the jury in
support of its verdict. See id. The other evidence, including the State’s witnesses, the
physical evidence, and Lively’s flight from the scene, all undermine Lively’s claim
of self-defense.
B.W. testified that the night before the murders, Lively was mad at Rideau
and had argued with Rideau and Sutton over the telephone. B.W. explained that on
the morning before the murders occurred, Lively told her “[d]on’t stop or go to the
house because he was gonna kill them.” B.W. testified that before Lively shot the
19
victims, she did not hear any arguing, scuffling, or Lively crying for help. B.W. also
testified that Lively never claimed he acted in self-defense. E.L. testified that the day
before the shootings, Lively was very mad and upset with everyone upstairs, and the
morning of the shootings he heard Rideau arguing on the phone with a person who
was talking about coming to shoot people. E.L. and S.K. also testified that they did
not hear any fighting before the shots were fired, and E.L. explained that shots were
fired within a “split second” of hearing someone knock on the door. E.L., S.K., and
B.W. all testified that Lively left the scene. Lively’s flight from the scene is
circumstantial evidence of his guilt. See Smith, 355 S.W.3d at 147; Miller v. State,
177 S.W.3d 177, 184 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
Officer Gillen and Sergeant McCauley testified that Rideau stated that Lively
shot them, and the jury viewed the officers’ videos showing the scene and Rideau’s
dying declaration. Officer Gillen and Sergeant McCauley testified that they observed
an open butterfly knife and a folded-up pocketknife at the scene, and even though
McCauley explained that a butterfly knife is a deadly weapon capable of causing
serious bodily injury, he also explained the scene did not reflect whether someone
had used self-defense. Additionally, the evidence does not support that any of the
circumstances listed in section 9.32(b) of the Penal Code existed in this case, so there
is no presumption that Lively’s belief that deadly force was immediately necessary
was reasonable. See Tex. Penal Code Ann. § 9.32(b).
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We conclude that the jury rationally could have found that each element of
the charged offense was proven beyond a reasonable doubt, and rationally could
have rejected Lively’s claim of self-defense. See Jackson, 443 U.S. at 319;
Braughton, 569 S.W.3d at 608–09. Accordingly, we hold that the evidence is
sufficient to support Lively’s conviction. We overrule issue two.
In issue three, Lively argues the trial court erred by not including instructions
or definitions concerning self-defense against multiple assailants in the charge. In
issue four, Lively argues the trial court erred by not including presumptive language
of self-defense in the charge. The State argues Lively forfeited any right to the
instructions because he failed to request them.
In reviewing alleged charge error, we determine whether error existed in the
charge, and if so, whether sufficient harm resulted from the error to compel reversal.
Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); see Phillips v. State,
463 S.W.3d 59, 64–65 (Tex. Crim. App. 2015). Article 36.14 of the Texas Code of
Criminal Procedure requires a defendant to object to claimed errors in the charge
before he may complain about the error on appeal. Tex. Code Crim. Proc. Ann. art
36.14. Generally, there is no error unless the defendant objects to the claimed
omission in the charge. Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998).
Article 36.14 requires the trial judge to deliver to the jury “a written charge distinctly
setting forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art 36.14.
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The trial judge is responsible for the accuracy of the charge and accompanying
instructions and must ensure all applicable law is incorporated into the charge.
Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).
The trial judge must give a requested instruction on any defensive issue raised
by the evidence. Dugar v. State, 464 S.W.3d 811, 816 (Tex. App.—Houston [14th
Dist.] 2015, pet. ref’d). A defensive issue is raised by the evidence if there is some
evidence on each element of a defense that, if believed by the jury, would support a
rational inference that the element is true. Id. When there is evidence, viewed from
the standpoint of the jury, that the defendant was in danger of an unlawful attack at
the hands of more than one assailant, the trial court should instruct the jury that the
defendant had a right to defend against the multiple assailants. Jordan v. State, 593
S.W.3d 340, 345 (Tex. Crim. App. 2020) (citing Black v. State, 145 S.W. 944, 947
(Tex. Crim. App. 1912)); Dugar, 464 S.W.3d. at 817. However, trial courts are not
required to sua sponte instruct juries on defensive issues. For example, the Texas
Court of Criminal Appeals recognized that decisions about “which defensive issues
to request are strategic decisions generally left to the lawyer and client.” Posey, 966
S.W.2d 57 at 60, 62; Eyman v. State, No. 13-15-00589-CR, 2017 WL 3634058, at
*5 (Tex. App.—Corpus Christ-Edinburg Aug. 24, 2017, no pet.) (mem. op., not
designated for publication). For that reason, the rules of error preservation require
defendants, as to a particular self-defense issue, to request the instruction and object
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to the omission of the instruction or forfeit the issue. See Allen v. State, No. 03-15-
00420-CR, 2017 WL 1832456, at *2–3 (Tex. App.—Austin May 2, 2017, pet. ref’d)
(mem. op, not designated for publication).
Based on the record, Lively did not preserve his complaint about the omission
of an instruction on his right to defend against multiple assailants during the charge
conference. Instead, the record shows that during the charge conference, the
following exchange occurred:
THE COURT: . . . [E]veryone’s been given a copy of the Court’s
proposed charge[,] [a]nd I would ask at this time, are there any
objection or corrections or additions[?]
[THE STATE]: Not from the State, Your Honor.
...
[THE DEFENSE]: . . . [T]he Court ruled on this, I think, off the record
in a charge conference we had - -
THE COURT: Mm-mm.
[THE DEFENSE]: - - but it’s our belief that, at least in part - - it’s not
a perfect language for the crime, but at least in part what was going on
here was essentially a theft or a burglary from my client’s room of items
that belonged to him - - rightfully belonged to him. . . . Those items
were then transported across the hall to Mr. Rideau’s room and
essentially stolen. It was our position during trial, and we still take that
position, that this is - - again, it’s not a perfect version of it but at least
meets the elements of robbery; once someone takes an item that is not
theirs with the intent of depriving the owner of that item, and then uses
force to convert that or maintain that property. Here, it is our position
that the four people involved in this altercation were attempting to
deprive Mr. [Lively] of these items and at the very least using force to
protect those items. So, it was our position - - I understand the Court’s
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ruled on this, but it is our position this is essentially a robbery. And the
example I used in trial with a number of witnesses is if I . . . took stuff
from Hobby Lobby . . ., got to the parking lot and then used a can of
mace on the person that was trying to prevent the theft, it converts from
a theft to a robbery. So, using force to maintain that unlawful - - the
unlawful proceeds. So, we’re looking for an instruction under
9[.]32(b)(2). I understand the Court’s denied it, but I’m putting my
reasoning for asking for it on the record.
THE COURT: Sure.
[THE DEFENSE]: And I understand the State is opposed, and that’s
fine. . . .
THE COURT: Right. And just for sake of argument, the - - I don’t
believe - - I mean, my ruling was based on the fact that I don’t believe
it ended up being a robbery. . . .
[THE DEFENSE]: It’s not a perfect analogy. I was using - - I guess my
argument would be though because my client had a right to be in the
property, in the second floor of 4142 Highland, that’s different than
going to someone else’s house - -
THE COURT: Right.
[THE DEFENSE]: - - - to have that conversation.
THE COURT: But it was in the other room.
[THE DEFENSE]: No question.
THE COURT: Okay.
[THE DEFENSE]: Either way. I was asking for that instruction - -
THE COURT: That was denied.
[THE DEFENSE]: -- and the accompanying language to that.
THE COURT: Right.
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[THE DEFENSE]: The other thing, Judge, we - - based on some
experience that we’ve had in other courts and based on the
complications and based on this Court’s ruling, we would also ask for
the presumption language. We ask kinda softy because I don’t really
like the presumption language. I like the rest of the language on the
PJC.
THE COURT: On self-defense?
[THE DEFENSE]: Self-defense. Sorry. As you know self-defense goes
on to say there’s a presumption of reasonableness if you are trying to
prevent a robbery, a murder - - you know, it makes a list. The only one
that we thought was applicable here would have been robbery. The
Court’s obviously said that’s not supported by the evidence, and that’s
fine. But that is an additional reason that we are not asking for the
presumption language.
THE COURT: Thank you.
[THE DEFENSE]: And again, that’s a strategic decision. It’s not
something we came by accidentally or an oversight.
Lively has not identified in the record where he asked the trial court to instruct
the jury on a claim of self-defense against multiple assailants, and we find no such
request in the record. The State argues Lively forfeited any right to the instruction,
and the trial court was not required to sua sponte issue the unrequested instruction.
We agree.
We hold Lively failed to preserve his third issue for appeal by failing to
request the trial court instruct the jury on his claim of self-defense against multiple
assailants. See Posey, 966 S.W.2d 57 at 60; Allen, 2017 WL 1832456, at *2–3. We
overrule issue three.
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While Lively also argues the trial court erred by not including presumptive
language of self-defense in the jury charge, the record shows that defense counsel
informed the trial court that it was a strategic decision to not ask for the presumption
language. See Tex. Penal Code Ann. § 9.32(b) (stating that a person’s belief that
deadly force was immediately necessary is presumed to be reasonable if the person,
among other things, knew or had reason to believe that the person against whom the
force was used was committing or attempting to commit robbery). Defense counsel
stated that it was “fine” that the trial court found that the evidence did not support
his theory that a robbery occurred and admitted that his theory was not a “perfect
analogy.” From the exchange, it appears that defense counsel made a strategic
decision not to ask for the presumption language that he complains about on appeal.
We conclude Lively forfeited his right to complain on appeal about the failure
of the trial court to include the presumptive language of self-defense instruction in
the charge. See Posey, 966 S.W.2d at 60; Eyman, 2017 WL 3634058, at *5. We
overrule issue four. Having overruled Lively’s issues, we affirm the trial court’s
judgment.
AFFIRMED. _________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on March 28, 2023
Opinion Delivered July 12, 2023
Before Golemon, C.J., Horton and Johnson, JJ.
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