Opinion
01-21-00332-CR
08-25-2022
JARVIS LEMAR CAMPBELL, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1574500
Panel consists of Chief Justice Radack and Justices Countiss and Farris.
MEMORANDUM OPINION
JULIE COUNTISS JUSTICE.
A jury found appellant, Jarvis Lemar Campbell, guilty of the felony offense of murder. After appellant pleaded true to the allegation in an enhancement paragraph that he had been previously convicted of a felony offense, the trial court assessed his punishment at confinement for forty-five years. In three issues, appellant contends that the trial court erred in denying his motion for mistrial and in instructing the jury.
See Tex. Penal Code Ann. § 19.02(b)(1), (2), (c).
We modify the trial court's judgment and affirm as modified.
Background
T.S., a teenager, testified that on December 20, 2017, when he was twelve years old, he rode his bicycle to the Wilson Food Mart (the "food mart") on Wilson Road across from the Colony Apartments in Humble, Harris County, Texas. He stopped at the food mart to talk to "[a] girl." Appellant, whom T.S. knew as "Black," was outside of the food mart, standing by his car near a gas pump. (Internal quotations omitted.) T.S. knew that appellant also lived at the Colony Apartments. Appellant asked T.S. "where [appellant's] gun was," and T.S. responded that he "didn't know." Appellant retorted, "You know you got my gun." And T.S. replied that he did not have appellant's firearm. Appellant told T.S. that he was taking T.S.'s shoes, which were red and white "Jordans," because T.S. had taken appellant's firearm. Appellant then removed T.S.'s shoes from his feet.
See United States v. Slizewski, No. 14-cr-87-jdp, 2015 WL 13022515, at *2 n.3 (W.D. Wis. Mar. 24, 2015) ("'Jordans' are basketball shoes named for the long-retired Michael Jordan and sold by Nike to this day.").
After the encounter with appellant, T.S. rode his bicycle to the home of his friend, "Boo," later identified at trial as Raymond Dixon. T.S. told Dixon "about the situation that [had] happened" at the food mart, and Dixon "called [T.S.'s] stepdad," Damien Sanders, whom T.S. called "Memphis." After completing the telephone call, Dixon's sister drove Dixon and T.S. to the Colony Apartments in her black car. She stopped the car near a stairwell by the apartment where appellant lived.
From his vantage point, T.S. could see that Sanders and his mother-the complainant-had already arrived at the Colony Apartments in their Chevrolet Tahoe sport utility vehicle (the "SUV"). He saw Sanders standing next to the stairwell and speaking to appellant, who was standing in the doorway of his apartment. The complainant was standing in the grass nearby. T.S. could tell that Sanders and appellant "were having an argument." Dixon got out of the black car and stood beside it. T.S. also got out of the black car, and he could hear appellant and Dixon arguing. He started walking toward the door to appellant's apartment "to get [his] shoes." Appellant gave him the shoes, and T.S., Sanders, and the complainant left the doorway of appellant's apartment and got inside the SUV. The windows in the SUV were "down."
The complainant was later identified at trial as Shaeika Sibley.
T.S. then heard appellant say something to Sanders and the complainant. Appellant left the doorway and went back into his apartment. T.S. saw appellant's girlfriend, later identified at trial as Lekendra Sims, come from inside the apartment and stand in the doorway.
The complainant got out of the SUV again, and Sanders got out and stood by the back of the SUV. The complainant and Sims had an argument, but there was not a "physical confrontation." T.S. saw appellant, who was holding a firearm, join Sims in the doorway. Appellant shot the complainant. T.S. went to the complainant to try to help her.
Meanwhile, appellant ran past T.S. to the parking lot behind the Colony Apartments. T.S. then saw appellant driving away in a gray Pontiac car. T.S. "got in" the SUV and "started to chase after him." T.S. turned left out of the Colony Apartments and headed "toward[] the high school." But before he caught up to appellant, T.S. saw law enforcement officers driving behind him. T.S. stopped the SUV and got out. Law enforcement officers "put [T.S.] in handcuffs and took [him] back" to the Colony Apartments. T.S. saw that the complainant was "still there on the ground," and "a lot" of law enforcement officers were "around." After about fifteen minutes, T.S. was taken to the Humble Police Department ("HPD") station, where he spoke with law enforcement officers.
Sanders testified that he was the complainant's boyfriend in 2017 and T.S. was his "stepson." On the morning of December 20, 2017, he received a telephone call from his friend, Dixon. When he answered the call, Sanders could hear T.S. in the background, sounding upset, "screaming," and crying. Dixon told him that appellant had "pulled a gun on" T.S. and had taken "some property from him, shoes and other things from his pockets." After the call ended, Sanders and the complainant left their home and drove to the Colony Apartments where appellant lived. When they arrived at appellant's apartment, Dixon, his sister, and T.S. were already there in a black car. Sanders and the complainant got out of the SUV, and as they "walked toward[] the door" of appellant's apartment, appellant came outside. Sanders asked appellant about T.S.'s shoes, and he had T.S. come out of Dixon's car and stand with them by the stairwell in front of appellant's apartment. Sanders asked T.S. what appellant had taken from him. After T.S. told him that appellant had taken the shoes, appellant went back into the apartment, came out again with the shoes, and gave them to T.S. Sanders then asked the complainant and T.S. to "go get in the [SUV], which they did." Sanders also got in the SUV. Then, "out of nowhere," appellant screamed, "[N]ext time I catch your son over here, I'm going to blow his ass off." The complainant reacted by getting back out of the SUV and walking toward appellant. Sanders also "jumped out" of the SUV to "try to stop her." Appellant was standing by the door to his apartment, just outside the apartment, and Sims was standing in the doorway behind him. The complainant "made it to the stairwell," but he did not hear the complainant say anything. Before Sanders could reach the complainant, he heard a firearm "go off." Appellant "shot [the complainant] in the head." The complainant fell "[b]y the stairwell." Sanders saw a firearm in appellant's hand.
Because Sanders had seen a law enforcement officer earlier that day at a church on "the other side of th[e] wooded area" behind the Colony Apartments, he thought that he could have the law enforcement officer "come over and save [the complainant]." So, Sanders "took off running" toward the church. While running, Sanders slipped and fell in a grassy area by the Colony Apartments. Sanders "got up and continued to run," and he "made it to the other side where [a] ditch was" before he "somehow . . . ended up falling again." According to Sanders, he then heard someone running behind him. When Sanders turned around to see who it was, he found appellant "standing over" him, still holding the firearm that he had used to shoot the complainant. Sanders began "begging for [his] life," and appellant replied, "Bitch, you fixing to die, too." Sanders "held [his] hand up," and appellant shot him. The bullet went through Sanders's hand and struck him in his side. Appellant "tried to shoot [Sanders] again," but the firearm "jammed." When appellant heard an emergency siren, he "took off running," and Sanders walked "down the side of the ditch" until he reached Wilson Road.
Sanders received a telephone call from Dixon on his cellular telephone. After they spoke, Dixon drove over and picked up Sanders. Sanders was "bleeding badly," so Dixon brought him to a hospital. Sanders later spoke with law enforcement officers.
Micaela Briggs testified that in 2017, she lived at the Colony Apartments. Her apartment was just to the left of the stairwell near where the complainant was shot, "[d]irectly facing the crime scene." On December 20, 2017, Briggs was inside her apartment when she "heard commotion at first but then it sounded kind of muffled and it sounded like people were getting in and out of cars." Then she heard something "pop" that "sounded like a firecracker." (Internal quotations omitted.) After that, "everything got silent." But then she heard "a good amount" of "pops." Briggs later learned that the "pops" were actually "[g]unshots."
Briggs further testified that she eventually went outside to see what had happened. When she walked out of her apartment, she saw "[a] woman [lying] on the ground by the staircase with blood out of her head." She also saw a boy standing beside the woman. He looked "extremely traumatized" and "like he couldn't move." Once Briggs realized that the woman had been shot, Briggs began screaming. The boy "ran over to [Briggs] after he kind of collected himself" and said, "He shot my mom. He shot my mom." (Internal quotations omitted.) Briggs asked the boy, "Who shot your mom?" (Internal quotations omitted.) The boy responded that appellant, whom he called "Black," had shot his mother. (Internal quotations omitted.)
According to Briggs, the boy then jumped into the driver's seat of the SUV. Briggs "tried to open" the front passenger door of the SUV but "it was locked." The boy kept saying, "That n[*]gga shot my mom, that n[*]gga shot my mom." (Internal quotations omitted.) And he said, "I'm going to go get him." (Internal quotations omitted.) The boy drove away in the SUV. Later, Briggs gave a statement to a law enforcement officer.
Chasity Jones testified that in 2017, she lived at the Countryside Village Apartments, which was on Wilson Road next to the Colony Apartments. Jones knew that appellant lived near her, but she did not know the exact apartment in which appellant lived.
Jones explained that on the morning of December 20, 2017, she took her trash out to the dumpster and on her way back to her apartment, she heard a gunshot. She waited on the side of the building to see if she would hear anything else. When she "didn't hear anything," she "proceeded to walk to the end of the sidewalk where [she] could see the road." When she got there, she saw "a ma[n] running across the street," "headed toward [the] Colony Apartments." He "cross[ed] the road," then fell in a grassy area. At trial, Jones identified Sanders as the man she saw running across the road.
Jones did not feel that it was safe to return to her apartment, so she headed back toward the dumpster, "where the cars were." When Jones got there, she heard "some yelling" and other "commotion." After she heard "more gunshots," she called for emergency assistance. While she was speaking to the emergency-assistance operator, she saw "someone running into the parking lot" and heard more gunshots. The person running through the parking lot came within "a few feet" of where Jones was standing. She recognized the person as appellant. Appellant got into a gray car that she had frequently seen in the parking lot and had seen appellant use before, and he "left at a high rate of speed." Jones stayed on the call with the emergency-assistance operator "until [she] heard the [emergency] sirens." Jones then walked "back up front," where she saw "a whole bunch of people had gathered." She walked toward the area where the people were standing and she saw "someone . . . on the ground."
At trial, Jones viewed a photograph of the gray car and identified it as "a vehicle associated with [appellant]."
HPD Sergeant J. Burt testified that while working on December 20, 2017, he responded to a call about an incident on Wilson Road in Harris County, involving a person who "had already been shot and [was lying] on the ground." When Burt arrived, he saw the complainant lying "face down on the ground in front of the apartments." He got out of his patrol car and "checked to see if she had a pulse," but he did not find one. He noticed "a large amount of blood around the body."
As the first law enforcement officer to arrive at the scene, Sergeant Burt stayed with the complainant's body "[t]o preserve" and "secure the scene." Later, Burt received a report from the dispatch operator that a man "with a gunshot wound" had been found at a hospital, and he had "supposedly" been shot during the December 20, 2017 incident.
Sergeant Burt also testified that he made a scaled diagram of the scene on December 20, 2017-a copy of which the trial court admitted into evidence. Burt explained that the diagram showed where he found the complainant "right in front of the stairs" lying "facedown with blood around her." To the left of the complainant's body was a shell casing.
HPD Officer N. Ball testified that while on patrol on December 20, 2017, he responded to a call about a shooting that had occurred at the Colony Apartments. At the scene, he was tasked with "secur[ing] [the] evidence." Ball performed a "visual scan" of the area. He saw the complainant's body and a shell casing lying to the left of the complainant's body. Ball took photographs of the scene, including photographs of the complainant's body and the shell casing. Ball saw an injury to the complainant's face.
Retired HPD Detective T. Taylor testified that while working on December 20, 2017, he heard a call from the dispatch operator reporting "shots fired" and he went to the Colony Apartments where the shooting had taken place. At the scene, Taylor saw the complainant's body and "[o]ne shell casing" close to the body. The complainant's "body was directly in front" of where the shooting had allegedly occurred. Taylor "assume[d] that [the shell casing] was fired from a semiautomatic pistol." And he had information that the person who had shot the complainant may have lived in a certain apartment. Inside that certain apartment, Taylor found appellant's driver's license or state identification card.
Detective Taylor also explained that the shell casing that was found at the scene was "located just to the right of the doorway" of the apartment where appellant was living. And he explained the significance of the shell casing's location: "A .380 is a semiautomatic handgun, which has an ejection port on the right side of the slide. The slide is . . . what encapsulates the barrel and so when you fire the weapon, . . . the slide comes back and grabs the casing and ejects the spent casing to the right." If the firearm had been fired from inside the apartment doorway, "[t]he [shell] casing would [have been] inside the apartment." Taylor did not find any evidence that the firearm had been fired inside the apartment; the evidence indicated that the firearm had been fired outside of appellant's apartment.
Former HPD Detective J. Culp testified that in December 2017, he collected evidence from a gray car "that was possibly used in a homicide." In the car, Culp found a backpack and a towel in the backseat. When Culp moved the towel, he found a "small[-]caliber" semiautomatic "Jennings pistol" that had ".380 Remington Peters soft lead-tip cartridges" in the magazine. In the center console, Culp found a receipt, containing Sims's name, and a payroll stub issued by the United Parcel Service that had appellant's name on it.
The gray car from which Detective Culp collected evidence was show at trial to be the same gray car Jones saw appellant driving on December 20, 2017. Sims, at trial, also identified the gray car as the car that both she and appellant used.
Detective Taylor testified that the registered owner of the gray car was Sims. A firearm was found in the backseat of the gray car under a blanket by a law enforcement officer.
HPD Officer M. Simon, an HPD Crime Scene Investigator, testified that on December 20, 2017, she was tasked with collecting evidence from the SUV. Inside the SUV, she found a pair of "Jordans" in the backseat, a purse containing the complainant's driver's license on the floorboard of the front-passenger seat, and a notebook with T.S.'s name written on it. She did not find any weapons. While Simon collected evidence from the SUV, Sanders approached her. She "[p]hotograph[ed] him and his injuries" and collected gunshot residue from his hands. Sanders had an injury on his hand, which "was wrapped," and an injury on his "left torso." According to Simon, Sanders had received a bandage on his hand at a hospital. She also collected gunshot residue from T.S.'s hands.
Jason Schroeder, director of the Trace Evidence Laboratory at the Harris County Institute for Forensic Sciences, testified that Sanders' right hand "had two particles confirmed as having a composition characteristic of . . . gunshot residue, which could have resulted from activities such as firing a weapon[,] being in close proximity to a firearm during discharge[,] or handling a firearm, a fired cartridge, or other surface bearing" gunshot residue. The gunshot residue on Sanders' right hand could have been "consistent with someone being fired [on] at close range." Sanders' left hand tested negative for the presence of gunshot residue.
Schroeder testified that T.S. tested "negative for the presence of gunshot residue" on his hands.
Dr. Rafael Garcia, an assistant medical examiner at the Harris County Institute of Forensic Sciences, testified that he performed an autopsy on the complainant's body. Dr. Garcia explained that the complainant sustained a gunshot wound on the right side of her face just below and lateral to the right eye. He saw "stippling" involving almost the entire right side of the complainant's face. There also was discoloration around the eye, a type of secondary bruising that would have resulted "from skull fractures sustained from the gunshot wound." And the right side of the complainant's face had bruising "consistent with blunt trauma," which was consistent with her having fallen on that side of her face. Dr. Garcia described the bullet's trajectory, noting that after the bullet entered the right side of the complainant's face, "it perforated the area of the . . . right cheekbone," then went "through the cranial cavity, injuring the right temporal lobe of the brain, a portion of the brain stem, and a portion of the right cerebellum." The bullet then "penetrated the left occipital lobe of the brain, which [was] on the left back portion of the cranial cavity" and "lodged within the brain parietal on the left occipital lobe." Dr. Garcia recovered the bullet, which the trial court admitted into evidence, from that area of the brain.
The trial court admitted into evidence a copy of Dr. Garcia's autopsy report.
Dr. Garcia opined that the traveling of the bullet through the brain, the brain stem, and the cerebellum would "most likely" have resulted in an "instantaneous death." The presence of stippling on the right side of the complainant's face meant "that the muzzle of the gun" was "relatively close" to her body when it was discharged, most likely somewhere "between six inches" and "two feet" away but possibly up to "four feet" away. Based on his observations, Dr. Garcia concluded that the complainant's cause of death was a gunshot wound of the head and the manner of death was homicide.
Sims testified that in December 2017, she was appellant's girlfriend and she lived with him in an apartment on Wilson Road. She had a "grayish, bluish" Pontiac car, and she and appellant both used the car. On the morning of December 20, 2017, appellant went to the parking lot to drive Sims's daughter to school. But before leaving, appellant returned to the apartment and told Sims "that the car [had been] broken into and the belongings were gone." When he got back, she and appellant called HPD. Sims went to look at the car and saw that the passenger window had been broken, the glove box was open, and her "belongings," specifically, a "Crown 9 gun and money," were gone. When law enforcement officers arrived, they spoke with appellant and Sims in the parking lot beside the car. After appellant and Sims finished speaking with the officers, appellant told Sims that he was going to get a cigarette at the food mart. Sims returned to the apartment, then went outside again. A few minutes later, appellant came back with a cigarette, and they went into the apartment together.
About forty minutes later, Sims opened the window blinds in the living room of the apartment and saw two cars-a brown Chevrolet Tahoe SUV and a black car-parked to the right of the front door to the apartment. She saw a heavyset man in the driver's seat of the SUV, a woman sitting in the front-passenger seat, and a little boy sitting in the backseat. She saw two men sitting in the black car. The men in the black car got out, and one stood "on the driver's side" by "the front hood." The other man stood "on the passenger[] side just by the door." The heavyset man got out of the SUV and walked behind it. He then walked toward the exterior stairs near the front door of Sims's and appellant's apartment. The woman stood outside the front-passenger side of the SUV, beside the open door.
Sims "scream[ed]" to appellant, who was in "the back" of the apartment, "[S]omebody is outside." But because appellant was listening to music, he did not hear her. The heavyset man then knocked on the door, and appellant answered it. According to Sims, he asked appellant, "You think it's a game?" Appellant responded, "What are you talking about man?" And the man responded, "I really came over here to slap the 'S' out of you." Sims tried to insert herself into the situation, saying to the man, "I don't really know what's going on, this is my house, and I'm not . . . for it." The man, who had his foot in the doorway to the apartment, did not back away. Sims saw that the boy who had been sitting in the backseat of the SUV was now standing near the exterior stairwell by the apartment door. The woman was still standing by the door of the SUV. The men who had been sitting in the black car were standing by it. She could see one of them had a firearm. Some apartment residents were also outside.
According to Sims, appellant said, "I don't want any problems." The heavyset man then "back[ed] up and put his hands . . . in his pocket[s]." Still facing Sims and appellant, he began retreating to the SUV. Appellant said, "Just keep your son away from here, we don't want any problems." The woman then approached appellant and Sims, stating loudly, "If I don't keep my son from over here, who's going to do something? Who's going to do something? He can go wherever he please." Then the woman stepped in the doorway and "put hands on" Sims. Sims saw the woman's fist swing, "and when she swung, she hit [Sims]." Sims "fell over to the right side." When Sims "fell over, [she] hear[d] a gunshot" before she "blanked out for a little minute." After "a while," she "got up." She did not see appellant there, so she "went outside." She "stayed on the sidewalk" until law enforcement officers arrived. She spoke with an officer, then was placed in a patrol car and taken to the HPD station.
During her testimony, Sims was shown a photograph, which the trial court had admitted into evidence. The photograph showed the front-passenger window and the back passenger-side window on the right side of her car. She acknowledged that the photograph did not show any damage to the windows of her car. And she acknowledged that on December 20, 2017, she told the law enforcement officer who interviewed her that there had been four black men wearing ski masks in the black car outside her apartment that day. She also told the law enforcement officer that the man who came out of the SUV had a firearm.
Mistrial
In his first issue, appellant argues that the trial court erred in denying his motion for mistrial because jury misconduct occurred.
A mistrial is a device used to halt trial court proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); see also Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (mistrial is remedy for "a narrow class of highly prejudicial and incurable errors"); Chaves v. State, 630 S.W.3d 541, 547 (Tex. App.-Houston [1st Dist.] 2021, no pet.). Whether an error requires a mistrial must be determined by the particular facts of the case. Ladd, 3 S.W.3d at 567.
We review a trial court's denial of a mistrial or a motion for new trial for an abuse of discretion. See Ocon, 284 S.W.3d at 884 (motion for mistrial); State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007) (motion for new trial); State v. Gallien, 631 S.W.3d 885, 890-91 (Tex. App.-Houston [1st Dist.] 2021, pet. ref'd) (motion for mistrial granted for guilt-innocence phase of trial was "functionally indistinguishable" from motion for new trial); Chaves, 630 S.W.3d at 547 (motion for mistrial). We view the evidence in the light most favorable to the trial court's ruling and uphold the ruling if it was within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We reverse only if no reasonable view of the record could support the trial court's ruling. See McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012).
A movant seeking a new trial based on jury misconduct bears the burden of showing not only that jury misconduct occurred, but also that it was material and probably caused injury. Ryser v. State, 453 S.W.3d 17, 39 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd); Bogue v. State, 204 S.W.3d 828, 829 (Tex. App.- Texarkana 2006, pet. ref'd). "Outside influence," in the context of jury misconduct, means something originating from a source outside of the jury room and other than from the jurors themselves that is improperly brought to bear upon a juror with an intent to influence the juror's vote. Colyer v. State, 428 S.W.3d 117, 124-25, 128- 29 (Tex. Crim. App. 2014); McQuarrie, 380 S.W.3d at 154; see also Tex. R. Evid. 606(b)(1). "Courts use the objective 'reasonable person' test to decide what effect the particular 'outside influence' in a case would have on the hypothetical average juror." Colyer, 428 S.W.3d at 129.
Here, after the jury found appellant guilty of the felony offense of murder, appellant moved for a mistrial or a new trial based on jury misconduct. Related to appellant's motion for mistrial, the trial court held a hearing at which Juror No. 22 testified to whether he viewed information outside of the evidence admitted at trial. Juror No. 22 stated that he did not recall being instructed during jury selection not to "look up anything." On the first day of trial, one of the witnesses, namely, Briggs, mentioned a videotaped recording related to the offense. When the trial ended that day, "everybody [in the jury] wanted to know" whether there really was a videotaped recording. When Juror No. 22 got home, he "decided to see if there was truly a video or if [he] could find any piece." He "Googled" appellant's name and found a "news article" about the offense. The news article had two "links" in it. He clicked on one of the links and was sent to another "news article." He did not read the news articles, but he did look at the videotaped recordings that accompanied them. He saved one news article with an embedded "video" to his cellular telephone. And he watched that videotaped recording, which contained a story reported by a news anchor, a brief videotaped recording from someone's cellular telephone made by a person standing across the street from where the offense occurred, and an interview of a woman telling her version of what had happened, which was about twenty seconds long. The whole videotaped recording was about two minutes long. The cellular-telephone videotaped recording did not show the offense, and Juror No. 22 testified that he did not see anything of note on the videotaped recording. All he heard on it was a gunshot and "noises of people saying something; and then it went to the report of the news anchor." After the hearing, the trial court denied appellant's motion for mistrial.
According to the Harris County District Courts' "COVID-19 Safety Measures" for jury trials in June 2021, when the trial was held in this case, one trial court judge presided over the jury selection portion at NRG Arena and empaneled the jury. See Dist. Cts. of Harris Cty., COVID-19 Safety Measures , http://www.harriscountyjuryservice.com/covid-19-safety-measures/ (last visited August 19, 2022). The jury was then sent to the trial court where the case was assigned and the trial judge in that court presided over the rest of the proceedings. See id. Our review of the reporter's record of the jury selection confirms the trial court's conclusion that the trial judge who presided over jury selection did not admonish the jury not to conduct any independent research about the case.
See David V. Richards, Posting Personal Information on the Internet: A Case for Changing the Legal Regime Created by § 230 of the Communications Decency Act, 85 Tex. L. Rev. 1321, 1321 (2007) (defining "Googled" as "searched for some[thing] . . . using the popular Internet search engine Google" (internal quotations omitted)).
Appellant argues that the trial court erred in denying his motion for mistrial because "outside research was received [by the jury] before deliberations" and "it likely impacted the jury's decision making." But the trial court could have accepted Juror No. 22's testimony that he only told the other jurors that a videotaped recording existed and that it did not show anything, the jurors did not discuss any of the materials discovered by Juror No. 22 after the trial court admonished them not to "look up anything" or "read any news stories if they . . . existed," and Juror No. 22 considered only the evidence presented at trial and did not use the outside materials he looked at in determining appellant's guilt or innocence. See Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997); Ryser v. State, 453 S.W.3d 17, 38-39 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd) ("We hold that the trial court was within its discretion to believe the juror's testimony . . . ."); Torrey v. State, No. 2-08-042-CR, 2009 WL 1565032, at *7 (Tex. App.-Fort Worth June 4, 2009, no pet.) (mem. op., not designated for publication) ("When reviewing a trial court's decision regarding potential jury misconduct, an appellate court should defer to the trial court's resolution of the historical facts and its determinations concerning credibility and demeanor."); see also Washington v. State, No. 02-13-00050-CR, 2015 WL 601857, at *10 (Tex. App.-Fort Worth Feb. 12, 2015, no pet.) (mem. op., not designated for publication) ("[I]t was within the trial court's discretion to believe Juror Number Two's testimony that she had not discussed the case with anyone not related to it and that she could maintain her fairness and impartiality.").
As evidence that the jury misconduct caused material error and "probably caused injury," appellant points to the trial court's remark, after viewing the videotaped recording during the hearing, that it "directly contradict[ed] [appellant's] self-defense claim" because of the interview of the woman on the videotaped recording who stated that appellant shot the complainant and gestured that he was about an arms' length away from the complainant at the time she was shot. But Juror No. 22 testified that he mentioned only the existence of the videotaped recording from a cellular telephone to the other jurors. He did not specifically mention the interview of the woman on the videotaped recording and was not asked about it. Nothing in the record shows that the rest of the jury was aware of the interview of the woman in the report by the news anchor on the videotaped recording.
In addition, we note that the trial court, in its charge to the jury, instructed the jury that:
The evidence consists of the testimony and exhibits admitted in the trial. You must consider only evidence to reach your decision. You must not consider, discuss, or mention anything that is not evidence in the trial. You must not consider or mention any personal knowledge or information you may have about any fact or person connected with this case that is not evidence in the trial.
Absent a showing to the contrary, we presume that the jurors followed the trial court's instruction not to consider evidence other than that presented at trial. See Henderson v. State, No. 1-20-00211-CR, 2021 WL 6015285, at *3 (Tex. App.- Houston [1st Dist.] Dec. 21, 2021, no pet.); Simon v. State, 374 S.W.3d 550, 552 (Tex. App.-Houston [14th Dist.] 2012, pet. ref'd).
Viewing the evidence in the light most favorable to the trial court's ruling, we hold that the information about the existence of the videotaped recording accessed by Juror No. 22 would not materially influence a reasonable juror's vote and thus, did not cause probable harm to appellant. Accordingly, we hold that the trial court did not err in denying appellant's motion for mistrial.
Appellant also asserts that Texas Rule of Appellate Procedure 21.3(b), (f), and (g) provides grounds for reversal. Rule 21.3(b) requires a new trial when the trial court "has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights." Tex.R.App.P. 23.1(b). Rule 21.3(f) requires a new trial "when, after retiring to deliberate, the jury has received other evidence." Tex.R.App.P. 21.3(f). And rule 21.3(g) applies "when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial." Tex.R.App.P. 21.3(g). As appellant has not shown the existence of facts in the record supporting any of these asserted grounds for a new trial, they are not properly presented for our review. See Tex. R. App. P. 38.1(i); Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) (appellate court has no obligation to construct and compose appellant's issues, facts, and arguments with appropriate citation to authorities and to record).
We overrule appellant's first issue.
Jury Charge Error
In his second issue, appellant argues that the trial court erred in instructing the jury because it limited the self-defense instruction in the jury charge to the complainant and did not allow for a claim of self-defense against multiple assailants, who purportedly "act[ed] in support of or in conjunction with" the complainant. In his third issue, appellant argues that the trial court erred in instructing the jury because it failed to include clear instructions on the burden of proof regarding self-defense.
We review complaints of jury-charge error under a two-step process. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2004); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). First, we must determine whether error exists in the trial court's charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). Second, if there is error, the court must determine whether the error caused sufficient harm to require reversal of the conviction. See id. If the defendant preserved error by timely objecting to the charge on the issue raised on appeal, we will reverse if the defendant demonstrates that he suffered some harm as a result of the error. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Under the some-harm standard, reversal is required if the error is "calculated to injure the rights of the defendant." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); Ramjattansingh v. State, 587 S.W.3d 141, 156 (Tex. App.- Houston [1st Dist.] 2019, no pet.). If the defendant did not timely object to the charge-error issue raised on appeal, we will reverse only if the error was so egregious and created such harm that the defendant did not receive a fair and impartial trial. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). In both circumstances, we determine harm by reviewing "the whole record, including the jury charge, contested issues, weight of the probative evidence, arguments of counsel, and other relevant information." Jordan v. State, 593 S.W.3d 340, 344 (Tex. Crim. App. 2020).
A defendant is entitled to an instruction on every defensive issue raised by the evidence regardless of the strength of the evidence and even if the trial court is of the opinion that the testimony is not credible. Maciel v. State, 631 S.W.3d 720, 722- 23 (Tex. Crim. App. 2021); Enns v. State, 612 S.W.3d 616, 628 (Tex. App.- Houston [1st Dist.] 2020, pet. ref'd); Reynolds v. State, 371 S.W.3d 511, 521-22 (Tex. App.-Houston [1st Dist.] 2012, pet. ref'd). The trial court's "only role is to determine if there is some evidence-even if weak, inconsistent, or contradictory- that a rational jury could find supports the defense." Rodriguez v. State, 629 S.W.3d 229, 321 (Tex. Crim. App. 2021). We review a trial court's denial of a request for a defensive instruction for an abuse of discretion, while viewing the evidence in the light most favorable to the defendant's requested instruction. Reynolds, 371 S.W.3d at 522; see also Maciel, 631 S.W.3d at 722-23; Weekley v. State, No. 01-18-00543-CR, 2020 WL 237932, at *8 (Tex. App.-Houston [1st Dist.] Jan. 16, 2021, no pet.) (mem. op., not designated for publication).
A defendant is entitled to a multiple-assailant jury instruction if there is "evidence that the defendant had a reasonable fear of serious bodily injury from a group of people acting together." Jordan v. State, 593 S.W.3d 340, 344 (Tex. Crim. App. 2020); see also Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985) (noting defendant may be "entitled to a charge on the right of self-defense against multiple assailants"); Weekley, 2020 WL 237932, at *8 (defendant entitled to multiple-assailant instruction if evidence raised issue about whether defendant reasonably believed she was under attack or imminent attack from multiple assailants).
In the application paragraph of the jury charge pertinent to appellant's claim of self-defense, the trial court instructed the jury:
[I]f you find from the evidence beyond a reasonable doubt that [appellant] did shoot [the complainant] with a deadly weapon, namely, a firearm, as alleged, but you further find from the evidence, as viewed from the standpoint of [appellant] at the time, that from the words or conduct, or both of [the complainant] it reasonably appeared to [appellant] that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of [the complainant], and that acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself against [the complainant's] use or attempted use of unlawful deadly force, he shot [the complainant], then you should acquit [appellant] on the grounds of self-defense; or if you have a reasonable doubt as to whether or not [appellant] was acting in self-defense on said occasion and under the circumstances, then you should give [appellant] the benefit of that doubt and say by your verdict, not guilty.
If you find from the evidence beyond a reasonable doubt that at the time and place in question [appellant] did not reasonably believe that he was in danger of death or serious bodily injury, or that [appellant], under the circumstances as viewed by him from his standpoint at the time, did not reasonably believe that the degree of force actually used by him was immediately necessary to protect himself against [the complainant's] use or attempted use of unlawful deadly force, then you should find against [appellant] on the issue of self-defense.
Appellant objected to the trial court's instruction to the jury on self-defense because it limited the jury to finding that appellant acted in self-defense only if he reasonably perceived that the complainant posed a danger and did not allow for the jury to find that he acted in self-defense based on any perceived threats posed by Sanders and the individuals in the black car who were present outside appellant's apartment at the same time as the complainant. In short, appellant asserted that he was entitled to a multiple-assailant jury instruction. The trial court overruled appellant's objection and did not include a multiple-assailant instruction in its charge to the jury.
A trial court errs when it fails to provide a multiple-assailant instruction if the issue is raised by the evidence. See Echavarria v. State, 362 S.W.3d 148, 152 (Tex. App.-San Antonio 2011, pet. ref'd). Here, we will presume for purposes of this opinion that the trial court erred in refusing to include a multiple-assailant instruction in its charge to the jury. See, e.g., Malbrough v. State, 612 S.W.3d 537, 562 (Tex. App.-Houston [1st Dist.] 2020, pet. ref'd) (presuming, without deciding, that trial court erred in instructing jury on "the law of parties"). Because appellant objected to the trial court's failure to include a multiple-assailant instruction in its charge, we will reverse appellant's conviction if appellant demonstrates that he suffered "some harm." See Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009).
At trial, Sims provided most of the testimony supporting appellant's multiple-assailant self-defense theory, and she acknowledged on cross-examination that she had initially told law enforcement officers that there were four black men wearing ski masks in the black car and that the man who came out of the SUV had a firearm. In her trial testimony, though, she stated that there were only two men in the black car. And as to the man who exited the SUV, she did not testify that he was armed or holding a firearm. She only stated that he returned to the SUV by backing away from the apartment doorway with his hands in his pockets. Sims also testified that her car window had been broken on the morning of the offense but admitted that a photograph taken of her car showed that her windows were intact and had not been broken.
And Sanders testified that after appellant shot the complainant, Sanders "took off running" away from the area. Sanders heard someone running behind him, and when Sanders fell, he saw appellant "standing over" him, still holding the firearm that he had used to shoot the complainant. Sanders "held [his] hand up," and appellant shot him.
There was no evidence presented at trial that the men standing by the black car communicated with the complainant or Sanders or that they moved toward appellant at any time before he shot the complainant. See Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999) (holding defendant not harmed by trial court's failure to provide jury instruction on multiple-assailant self-defense where no evidence in record explained "why [defendant] would think the other two were teaming up on him"); see also Weekley, 2020 WL 237932, at *9 (holding defendant not harmed by trial court's refusal to give jury multiple-assailant instruction where record "contain[ed] no evidence to support [defendant's] belief that the three individuals standing behind [the complainant]-none of whom had done or said anything threatening-would join together to attack her").
Further, we note that the jury was instructed on the law of self-defense. Thus, in finding appellant guilty of the offense of murder, the jury necessarily rejected his contention that he had a reasonable expectation or fear of death or serious bodily injury from the complainant's use or attempted use of unlawful deadly force toward appellant or Sims See Weekley, 2020 WL 237932, at *9 ("Given the jury's implicit rejection of [defendant's] self-defense theory against [the complainant] it would make no sense to conclude that the jury could have found that the three others were, as [defendant's] requested instruction stated, 'present for the purpose of acting together to take [defendant's] life or to do serious bodily injury'"); Collier v State, No 14-00-00609-CR, 2002 WL 1824967, at *7 (Tex App-Houston [14th Dist] Aug 8, 2002) (mem op, not designated for publication), aff'd, No 1647-02, 2003 WL 22508079 (Tex Crim App 2003); see also Dickey, 22 S.W.3d at 493 (Keller, PJ, concur ring) (explaining when jury is instructed on self-defense as to only person shown to have threatened defendant and rejects theory, "the jury's rejection of that theory necessarily shows that the jury would also have rejected a multiple[-]assailant[] theory"); Walker v. State, No. 07-10-0299-CR, 2011 WL 5007978, at *3 (Tex. App.-Amarillo Oct. 20, 2011, pet. ref'd) (mem. op., not designated for publication) ("[T]he jury implicitly rejected his self-defense theory against [the complainant], which necessarily indicates that the jury would also have rejected a self-defense theory involving multiple assailants."). We hold that even if the trial court erred in refusing to include in its charge appellant's requested multiple-assailant instruction, that error was harmless.
As to appellant's assertion that the trial court erred by failing to instruct the jury that "the State bears the burden of disproving his self-defense justification beyond a reasonable doubt," we will first consider whether error exists in the trial court's charge. See Wooten, 400 S.W.3d at 606.
According to appellant, the trial court should have instructed the jury using the burden-of-proof language contained in the Texas Pattern Jury Charge instruction for self-defense, which provides: "The defendant is not required to prove self-defense. Rather, the [S]tate must prove, beyond a reasonable doubt, that self-defense does not apply to the defendant's conduct." Comm. on Pattern Jury Charges, State Bar Of Tex., Texas Criminal Pattern Jury Charges: Criminal Defenses CPJC 31.8 (2018).
Here, the trial court's charge to the jury contained the following general burden-of-proof instruction:
The burden of proof throughout the trial is always on the State. [Appellant] does not have the burden to prove anything. The State must prove every element of the offense beyond a reasonable doubt to establish guilt for the offense. If the State proves every element of the offense beyond a reasonable doubt, then you must find [appellant] guilty. If the State does not prove every element of the offense beyond a reasonable doubt, then you must find [appellant] not guilty. If, after you have considered all the evidence and these instructions, you have a reasonable doubt about whether [appellant] is guilty, you must find [appellant] not guilty.
Further, as to self-defense, the trial court instructed the jury: "If you have a reasonable doubt as to whether or not [appellant] was acting in self-defense on said occasion and under the circumstances, then you should give [appellant] the benefit of that doubt and say by your verdict, not guilty."
These instructions, read together, provide substantively the same information as the burden-of-proof language contained in the Texas Pattern Jury Charge instruction for self-defense. We agree with the four other Texas appellate courts that have considered this issue that the addition of the specific language in the pattern jury charge was not necessary when viewed in light of the charge as a whole. See Hendrix v. State, No. 10-19-00123-CR, 2020 WL 4360800, at *4 (Tex. App.-Waco July 29, 2020, pet. ref'd) (mem. op., not designated for publication); Wilson v. State, No. 11-16-00163-CR, 2018 WL 3060936, at *3 (Tex. App.-Eastland June 21, 2018, no pet.) (mem. op., not designated for publication); Goodson v. State, No. 05-15-00143-CR, 2017 WL 1360193, at *11-12 (Tex. App.-Dallas Apr. 12, 2017, pet. ref'd) (mem. op., not designated for publication); Savoy v. State, No. 14-15-00637-CR, 2016 WL 6809168, at *5 (Tex. App.-Houston [14th Dist.] Nov. 17, 2016, pet. ref'd) (mem. op., not designated for publication). Thus, we hold that the trial court did not err in failing to include the burden-of-proof language set forth in the Texas Pattern Jury Charge instruction for self-defense.
We overrule appellant's second and third issues.
Modification of Judgment
The trial court's judgment does not accurately comport with the record in this case in that, under the section titled, "Punishment Assessed by," it incorrectly states: "JURY." Further, under the section titled, "Punishment Assessed by Jury/Court/No election," it incorrectly states:
Jury. Defendant entered a plea and filed a written election to have the jury assess punishment. The jury heard evidence relative to the question of punishment. The Court charged the jury and it retired to consider the question of punishment. After due deliberation, the jury was brought into Court, and in open court, it returned its verdict as indicated above.
Here, the record shows that the trial court, and not the jury, assessed appellant's punishment at confinement for forty-five years.
"[A]ppellate court[s] ha[ve] the power to correct and reform a trial court judgment 'to make the record speak the truth when [they] ha[ve] the necessary data and information to do so[] or make any appropriate order as the law and nature of the case may require.'" Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet ref'd)). Although neither party addresses the inconsistency between the trial court's written judgment and the record, our authority to correct an incorrect judgment does not depend on a request by the parties. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Dromgoole v. State, 470 S.W.3d 204, 226 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd); see also Asberry, 813 S.W.2d at 529-30 ("The authority of an appellate court to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court.").
Accordingly, we modify the portion of the trial court's judgment, under the section titled, "Punishment Assessed by," to state, "COURT." Further, we modify the portion of the trial court's judgment, under the section titled, "Punishment Assessed by Jury/Court/No election," to uncheck the box next to:
Jury. Defendant entered a plea and filed a written election to have the jury assess punishment. The jury heard evidence relative to the question of punishment. The Court charged the jury and it retired to consider the question of punishment. After due deliberation, the jury was brought into Court, and in open court, it returned its verdict as indicated above.
And we modify the portion of the trial court's judgment, under the section titled, "Punishment Assessed by Jury/Court/No election," to check the box next to:
Court. Defendant elected to have the Court assess punishment. After hearing evidence relative to the question of punishment, the Court assessed Defendant's punishment as indicated above.See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); see also Thomas v. State, No. 01-14-00332-CV, 2015 WL 5076292, at *12- 13 (Tex. App.-Houston [1st Dist.] Aug. 27, 2015, no pet.) (mem. op., not designated for publication) (modifying trial court's judgment to reflect that trial court, and not jury, assessed punishment).
Conclusion
We affirm the judgment of the trial court as modified.