Goodson v. State

Full title: TORREY GOODSON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals Fifth District of Texas at Dallas

Date published: Apr 12, 2017

No. 05-15-00143-CR (Tex. App. Apr. 12, 2017)

Opinion

No. 05-15-00143-CR

04-12-2017

TORREY GOODSON, Appellant v. THE STATE OF TEXAS, Appellee

Opinion by Justice Lang

On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court Cause No. F-1362599-K

MEMORANDUM OPINION

Before Justices Lang, Stoddart, and Schenck
Opinion by Justice Lang

Following a plea of not guilty, appellant Torrey Goodson was convicted by a jury of murder. Additionally, appellant pleaded true to two enhancement paragraphs and the trial court found those enhancement paragraphs true. Punishment was assessed by the trial court at fifty years' imprisonment.

In three issues on appeal, appellant contends (1) the evidence is insufficient to support his conviction for murder and the jury's rejection of self-defense; (2) "[t]he trial court erred in failing to instruct the jury that the burden of proof was on the State to disprove self-defense beyond a reasonable doubt"; and (3) the jury charge was erroneous because it failed to define "bodily injury" and "serious bodily injury," limit the culpable mental state to the result of appellant's conduct, and include a jury instruction on "apparent danger."

We decide against appellant on his three issues. Additionally, we modify the judgment to correct two errors shown by the record. As modified, the trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL CONTEXT

The indictment in this case alleged in part that appellant unlawfully (1) "intentionally and knowingly cause[d] the death of Christopher McDuffy . . . by shooting the deceased with a firearm, a deadly weapon" and (2) "intend[ed] to cause serious bodily injury to [McDuffy]" and "did . . . commit an act clearly dangerous to human life . . . by shooting [McDuffy] with a firearm," thereby causing McDuffy's death.

At trial, Cora Hill testified that at the time of the incident in question, she had known McDuffy for approximately three months. On November 17, 2013, Hill attended a "football party" at the Dallas apartment of her friend "D-Low." Hill stated the apartment was a "small efficiency" with "a little sliding thing that would separate the living room and the little area for you to sleep." According to Hill, at the beginning of the party, approximately eight people other than her were at the apartment. She described those eight people as D-Low, Monique, Pam, "Unc," David, Juan, Santiago, and "Ms. Cookie." Hill testified those individuals were acquainted with each other and had used drugs together at D-Low's apartment on other occasions. She stated that at some point after the party started, several other men arrived, including her friend Cortney and appellant, an acquaintance of Cortney whom Hill had not met before. Additionally, a short time after that, McDuffy arrived. Hill testified appellant and McDuffy seemed to be acquainted. She stated everyone at the apartment, including appellant, was doing drugs and drinking alcohol. Also, according to Hill, McDuffy was selling and "serving" drugs.

Hill stated that after McDuffy's arrival, appellant "started acting like paranoid" and "watching everything [McDuffy] was doing." Further, Hill testified appellant stated to her, "Am I okay, Cora? Do you know what people would do to me, it's a lot of money on my head." Hill stated she "kept asking" appellant what he was talking about, but he would not tell her. Hill testified she did not hear anyone at the party talking about a plot to kill appellant and she was not involved in any such plot. She stated that at some point, Cortney left the party, but appellant remained.

According to Hill, there were "usually" two guns in D-Low's apartment and she was familiar with those guns. One was a ".40 cal" called "the house gun" and the other was a "380" pistol. Additionally, Hill testified appellant brought a black gun that looked "just like" the house gun. Hill stated that at some point, appellant picked up the house gun, then sat in a chair in the living room area of the apartment with Hill and others, holding his own gun and the house gun and "watching [McDuffy's] every move." Hill testified that after trying for some time to "get [appellant] to calm down," she got up and went to speak with someone who had called to her from the "back room" area on the other side of the partition. Appellant, McDuffy, and Monique were the only other people in the living room area at that time. According to Hill, all three were seated and McDuffy "had a plate on his lap" and was "cutting up" cocaine to sell. Also, Hill stated the "380" pistol was "on the couch next to where [McDuffy] was sitting." Hill testified that seconds after she stepped into the "back room" area, she heard "maybe five or six gunshots" in the living room area. She stated she heard no raised voices, arguing, or commotion prior to the gunshots. She looked around the partition and saw Monique on the floor, leaning over McDuffy's body. Hill testified appellant stated, "Cora, Cora, this nigga tried to shoot me. I don't know what I just did." According to Hill, Monique immediately got up and tried to leave through the front door of the apartment, but appellant blocked the door and took Monique's phone. Hill testified she grabbed Monique and took her to the "back room" area. Hill, Monique, and several others hid in a closet of the apartment and called police. Hill stated they could hear appellant talking on the phone and "giving someone directions to where he was."

On cross-examination, Hill testified appellant remained at the apartment until police arrived. Also, Hill stated she believed appellant's "paranoid" behavior was "an act." She testified (1) when appellant arrived at the party, he "was fine," and (2) shortly after McDuffy's arrival, appellant "stepped outside" for about five minutes, then came back into the apartment and "started acting paranoid." Additionally, Hill stated she did not see the "380" pistol after the shooting.

Monique Rice testified that at the time of the events in question, she and McDuffy were friends and were "starting a relationship." She stated she and her mother, Ms. Cookie, attended the party described above. Rice stated she had never met or seen appellant before that night. According to Rice, after McDuffy's arrival, the atmosphere in the apartment was "very weird" and Hill was "sending everyone to the back." Rice testified she went to the "back room" area to talk to her mother, leaving only McDuffy and appellant in the living room area. Rice stated that when she came back around the partition into the living room area, she saw appellant pointing "both guns" directly at McDuffy, who was standing near the television with his hands "palms out." Rice testified McDuffy had nothing in his hands and did not say anything. According to Rice, appellant said "[i]t ain't supposed to be like this" and started shooting McDuffy. Rice testified the "380" pistol was on the couch both before and after the shooting. She stated McDuffy fell against her and they both fell to the floor. Rice testified appellant "called [Hill] and said that he just killed [McDuffy]," then pointed the gun at her and told her to give him her cell phone so he could call the police. Also, she testified appellant said he would kill her if she left the apartment. Rice stated that after she reached the "back room" area, she heard appellant "shaking [McDuffy's] body" and "rustling around" in the living room area, but she could not see what appellant was doing.

On cross-examination, Rice was asked if she could explain how a gun was found under McDuffy's body. She stated, "I think it was moved." Additionally, she testified that after the shooting, appellant made a phone call to "someone else" before calling police.

Officer Antoine Crutcher of the Dallas Police Department testified he responded to a call respecting the incident described above. Upon his arrival at the scene, he was instructed by a police sergeant to take appellant into custody. Crutcher stated appellant told police his name and Crutcher was able to locate appellant's photograph and other information "through the system." Crutcher testified that although he did not ask appellant any questions, appellant "kept saying that he had to do it, and if he didn't do it, then it would have been him dead." Crutcher stated appellant complained he was dehydrated and wasn't feeling well, so police officers called an ambulance and accompanied appellant to a hospital before taking him to the police station.

Detective David England of the Dallas Police Department testified he was called to the crime scene described above on the night in question. He stated he photographed the crime scene and collected evidence. Numerous photographs taken by England were admitted into evidence and published to the jury. England testified that when the medical examiner "rolled" McDuffy's body, there was "a pistol laying under him." According to England, that pistol was a revolver and was loaded with four unfired cartridges. England testified the revolver and two other guns were collected as evidence. Also, England stated he tested appellant's hands for gunshot residue and obtained a "buccal swab" from appellant.

On cross-examination, England testified no fired cartridges found in the apartment matched the caliber of the revolver found under McDuffy's body. Further, England stated (1) no gun was found on the couch and (2) appellant was "very cooperative" in his dealings with England.

Cortney Marshall testified (1) McDuffy was his cousin and helped him sell drugs and (2) appellant is a long-time friend of Marshall. Marshall stated the three of them sometimes spent time together. According to Marshall, on the date in question, appellant called Marshall and asked Marshall to come pick him up because he wanted to "hang out." Marshall sent a friend to pick up appellant and bring him to D-Low's apartment. Marshall stated appellant seemed "normal" to him that night. Marshall subsequently left D-Low's apartment to go pick up his son. He stated that about fifteen minutes after leaving the apartment, he received a call from McDuffy warning him to be careful when returning to the apartment because "it [sic] was some dudes outside." Further, Marshall testified that about ten minutes after McDuffy's call, appellant called and "asked me was he all right over there." Marshall stated he told appellant he was all right and "they cool people." Additionally, Marshall testified the two guns at the apartment were his. Marshall stated he had no plan to kill appellant and did not ask McDuffy to stay at the apartment and shoot appellant.

Dr. Emily Ogden testified she works at the Southwestern Institute of Forensic Sciences and performed an autopsy on McDuffy following the shooting in question. She stated she observed gunshot wounds to McDuffy's head, chest, and left side. Also, she stated toxicology testing showed the presence of ethanol, cocaine, and marijuana in McDuffy's body. Ogden testified she concluded McDuffy's cause of death was multiple gunshot wounds and the manner of death was homicide.

Waleska Castro testified she is a trace evidence examiner at the Southwestern Institute of Forensic Sciences. Castro stated she found "particles characteristic of primer gunshot residue" on "sample stubs" collected from McDuffy's hands. According to Castro, "[t]hat means that either the individual fired a gun, or that the individual handled a firearm or a firearm component that had been fired, or that the individual was in the vicinity of a firearm when it was fired."

Susan Kerr, a forensic firearms examiner with the Dallas Police Department, testified she analyzed firearms evidence collected from the crime scene, including "fired cartridge cases" and bullets. Kerr testified she did not "find any firearms evidence to analyze that came from [the revolver]." Further, Kerr stated (1) her analysis showed the cartridge cases and bullets found at the crime scene were fired from the other two guns collected and (2) the evidence analyzed by her also included "small lead fragments" that she was unable to attribute to any particular gun.

Angela Fitzwater testified she is a forensic biologist at the Southwestern Institute of Forensic Sciences. She stated she obtained DNA profiles of appellant and McDuffy and performed DNA testing on the three guns and certain other evidence collected in this case. According to Fitzwater, (1) DNA "swabbings" collected from the grip of the revolver matched McDuffy's DNA profile, (2) swabbings from one of the other two guns matched the DNA profiles of both McDuffy and appellant, and (3) she was "not able to obtain a DNA profile" from swabbings from the third gun. Following Fitzwater's testimony, the State rested its case.

The defense started the presentation of its evidence with the direct examination of Hill, who testified it was her impression that (1) it had been "awhile" since Marshall and McDuffy had seen appellant and (2) appellant was at D-Low's to drink beer and watch the football game. She stated she did not know if Marshall or McDuffy "had any plans for [appellant]." Also, Hill testified she "wasn't intoxicated" and was not "impaired to where my judgment or anything like that was off."

Rice testified on direct examination by the defense that appellant began "acting peculiar" after he had been at D-Low's apartment for approximately an hour. She stated appellant picked up the house gun from a countertop where it was kept. According to Rice, there was no conflict going on at that time and appellant and McDuffy were not engaged in conversation. Rice testified she had seen McDuffy with the revolver in his hands when he first arrived at the party, but he was not holding the revolver at the time he was shot. Also, Rice stated that drinking and doing drugs do not "affect" her.

Marshall testified that "days before" the incident in question, appellant called him "repeatedly." Marshall stated he did not remember when he had last had any interaction with appellant prior to those calls. Also, Marshall stated he kept two guns at D-Low's apartment for protection and McDuffy knew how to use those guns. Further, Marshall denied asking appellant to come to the apartment to help him in handling "some problems with some people."

Alicia Goodson testified she is appellant's older sister and they are "real close." Goodson stated that on the date of the incident in question, appellant received approximately seven phone calls from Marshall prior to the party. She stated appellant initially did not answer those calls, but finally "went ahead and answered." According to Goodson, appellant had not had contact with Marshall for at least a year before those calls.

Appellant testified he is thirty-six years old and has been convicted of drug and firearm offenses. He stated that on the date in question, Marshall called him and asked him to "be his back-up" respecting a "problem." Marshall sent someone to pick up appellant and bring him to D-Low's apartment. Appellant stated that, with the exception of Marshall and McDuffy, he did not know the other people in the apartment. He stated he did not have his cell phone because he had left it in Marshall's car. He testified that at some point after Marshall left the party, he began having some concern for his safety. According to appellant, (1) someone called Hill to "the back" and (2) when Hill returned from "the back," appellant heard her say "No, I don't want to do him. Not in here, not tonight. Really, I don't want to do him any night." Further, appellant stated Hill was called to "the back" a second time and, upon her return, said "Why y'all plotting on that man being dead? What if that end up being one of y'all laying on the ground bleeding?" Appellant testified he said to Hill, "Is something supposed to happen to me? Because if it is, I ain't going to let it happen." He stated Hill told him, "No, it's just a bunch of selfish MF'ers [sic] thinking about their own habits." He testified that after that, he "kept asking her was I all right" because "she was the one who had gave me the warning, the red flag." Appellant stated he grabbed the house gun that was laying on the countertop and kept it with him. He said Hill was called to "the back" a third time and when she returned, he heard her say "I don't care what happen outside, just as long as it ain't in here." He testified that after he heard Hill say that, he "knew I wasn't going outside." According to appellant, at that point, (1) "two Mexican dudes" arrived to purchase drugs from McDuffy and (2) McDuffy and those two men went into the bathroom with "the scale." Appellant stated he watched all three of them because he was "nervous."

Appellant testified that at some point, Hill called Marshall for him on her cell phone and appellant asked Marshall "am I all right over here." Marshall told him, "Man, you all right." Appellant stated that after that call, he sat with his back against a wall in a spot where he "could see everything that come in and out of the apartment." He testified Hill was again called to "the back" and, before leaving, she "scooted the couch up some." Appellant stated he was nervous and thought "she don't want my blood to get on the couch or something." According to appellant, after Hill left the front area, McDuffy stood up and turned to face him. Appellant testified as follows as to what happened next:

Q. Okay. Did you shoot him?

A. Yes, sir.

Q. Why did you shoot him?

A. I shot him because he made the move on me.

Q. Tell us what that means. I don't know what that means.

A. He had a weapon and he was standing like this (demonstrating). And when I said, I don't know what you doing man, he said something, but I still don't know til this day what he said. But when he went to raise his hand, that was his gun hand. I took it that he was fixing to shoot me, so I shot him.

Q. He had a gun in his hand?

A. Yes, sir.

Q. And he had raised it up or started to raise it up?

A. Yes, sir.

Q. And you fired at him?

A. Yes, sir.

Appellant stated he shot McDuffy "four or five times" and McDuffy fell to the floor. He testified Rice also "went to the floor." He took Rice's cell phone and told Rice to get up and "go to the back with everybody else until the police come." Appellant testified he then called 911 and "told them what had happened." He stated that after the shooting, he did not threaten or harm anyone in the apartment.

Appellant stated that while waiting for police to arrive, he heard Hill on her cell phone "in the back" telling Marshall that he had shot McDuffy. Appellant testified in part,

[S]he was telling him on the phone, no, you got to tell him. Then she asked me, can she bring me the phone, and I told her yeah. She brought me the telephone, I get on the phone, and it was [Marshall]. He said, "Come outside. Them nigga's outside now." I said, "Okay." I hung up, and that's when I called 911 again, the second time, from [Hill's] phone that time.

Appellant stated that at that point he asked the 911 dispatcher to stay on the phone with him because he didn't know where the third gun was and thought he was "still in danger." According to appellant, police arrived about forty-five minutes later and he let them into the apartment. He stated he was handcuffed, taken into custody, and was cooperative. He testified he told police he "shot [McDuffy] in self-defense."

On cross-examination, appellant testified that during the time he was at D-Low's apartment prior to the shooting in question, he was "smoking weed, snorting coke, and dranking [sic] alcohol, beer." Further, he stated (1) he has a criminal history that includes convictions for drug offenses and unlawful possession of a firearm; (2) when he "get[s] high," he "get[s] paranoid" and feels like he might need to "defend" himself; and (3) he knows that "pointing guns and shooting guns at a person is an act clearly dangerous to human life." Additionally, appellant testified that shortly after his arrest on the evening in question, he talked with a police detective. Appellant stated that when the detective asked him whether McDuffy had said anything to him, his reply was, "[n]o, I was talking to him, saying, this ain't for us because I could see it in his eyes."

After the defense rested its case, the trial court read the charge of the court to jury.¹ Then, both sides presented closing argument.

1 The charge of court stated in part,

A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.
A person acts knowingly, or with knowledge, with respect to circumstances surrounding his conduct when he is aware that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
In all criminal cases, the burden of proof is on the State. All persons are presumed to be innocent, and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after a careful and impartial consideration of all the evidence in the case.
The prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt; and if it fails to do so, you must acquit the defendant.
It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all "reasonable doubt" concerning the defendant's guilt.
In the event you have a reasonable doubt as to the defendant's guilt after considering all the evidence before you, and these instructions, you will acquit the defendant and say by your verdict "not guilty."
. . . .
Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that on or about November 17, 2013, in Dallas County, Texas, the defendant intentionally or knowingly caused the death of Christopher McDuffy, an individual, by shooting Christopher McDuffy with a firearm, a deadly weapon, you will find the defendant guilty of the offense of murder and so say by your verdict.

OR
If you believe from the evidence beyond a reasonable doubt, that on or about November 17, 2013, in Dallas County, Texas, the defendant intended to cause serious bodily injury to Christopher McDuffy and committed an act clearly dangerous to human life by shooting Christopher McDuffy with a firearm, a deadly weapon, and did thereby cause the death of Christopher McDuffy, you will find the defendant guilty of the offense of murder and so say by your verdict.
If you have a reasonable doubt as to whether the defendant is guilty of murder, then you must acquit the defendant and say by your verdict not guilty.
A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.
The use of force against another is not justified in response to verbal provocation alone.
A person is justified in using deadly force against another:

(1) if the person would be justified in using force against the other; and
(2) when and to the degree the person reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

"Reasonable belief" means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.
"Deadly force" means force that is intended or known by the person using it to cause, or in the manner of its use or intended use is capable of causing, [sic] death or serious bodily injury.
You are further instructed that it is your duty to consider all relevant facts and circumstances surrounding the alleged killing and the previous relationship existing between the defendant and the deceased together with all relevant facts and circumstances going to show the condition of the defendant's mind at the time of the alleged offense.
Now, therefore, bearing in mind the foregoing definitions and instructions, if you believe from the evidence beyond a reasonable doubt that on or about November 17, 2013, in Dallas County, Texas, the defendant did then and there intentionally or knowingly cause the death of Christopher McDuffy by shooting him with a firearm, a deadly weapon, as alleged in the indictment, but you further find from the evidence, or have a reasonable doubt thereof, that the defendant reasonably believed that deadly force when and to the degree used, if it was, was immediately necessary to protect himself against the use or attempted use of unlawful deadly force by Christopher McDuffy to protect himself against Christopher McDuffy's use or attempted use of unlawful deadly force, you will acquit the defendant and say by your verdict "not guilty."
. . . .
You are the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given their testimony, but you are bound to receive the law from the Court, which is hereby given you, and be governed thereby.

The State argued in part during closing (1) "one of the ways in this Jury Charge that you can find [appellant] guilty of murder" is to find that appellant "intentionally or knowingly caused the death of [McDuffy] by shooting [McDuffy] with two firearms, deadly weapons, a total of four times" and (2) "[t]he second way that's in the Jury Charge" is "that [appellant] . . . intended to cause serious bodily injury to [McDuffy], and committed an act clearly dangerous to human life by shooting [McDuffy] with two handguns, again, both firearms, a total of four times, and this is what caused the death of [McDuffy]." Then, the State continued its argument as follows:

None of these elements are in question, whatsoever. So why are we here?
. . . The defendant, in this case, has raised the issue of self-defense. Now, in order for self-defense to come into your Charge, which you have here, there has to be some evidence that self-defense is an issue. If any evidence was presented that self-defense is going to be something for y'all to consider, it comes into the Jury Charge. I think we all know that self-defense in this case is not real, but let's talk about it anyway.
Like we talked about in jury selection, in order for self-defense to apply, a person must reasonably believe that deadly force is immediately necessary. A look is not good enough. I got the feeling is not good enough. Being paranoid because you're so intoxicated, because you're on these drugs, is not good enough.

The defense argued in part that appellant (1) "did feel like he was in a life or death situation, and it was either his life or it was someone else's life" and (2) did "what he thought was reasonable" and "what he thought he needed to do to protect himself." Additionally, the defense argued in part,

He's telling you what he believes to be the truth, that he was in fear and that this man went for his gun, raised his gun, and he shot him. And the law doesn't require you wait to be hurt. If you read and believe you are in fear of danger, life and death, you have the right to defend yourself, even if you turn out to be wrong.

On rebuttal during closing argument, the State argued in part "you know that a homicide occurred and what makes it justified is if there was any indication of self-defense."

During deliberations, the jury sent several notes to the trial court. One of those notes stated as follows, with a portion struck through as indicated:

1) Need documents that report interview at time of arrest.

2) Does the defendant or state

Who has burden of proof on self-defense. Does this also have to be beyond reasonable doubt.

The trial court's written response to that note was as follows: "You have received all the law and evidence in this case. Please continue your deliberations."²

2 The jury's other notes to the trial court are on three additional pages in the appellate record that are separate from the jury note described above. One of those pages stated as follows: "1) All pictorial evidence"; "2) All DNA & Hand Print evidence on revolver"; and " 3) 11 Copies of law & jury charge." Another page stated, "1) We would like to see All of Mr Goodsons Testimony. If not possible, provide #2" and "2) We want to see all of Mr Goodsons testimony regarding his recollection of the shooting." The trial court responded to those notes in writing, stating in part (1) "[i]n connection with your request, you are instructed that the jury is not entitled to have a general re-reading of any witness' testimony," and (2) "if the jury disagrees as to the statement of any witness, they may, upon applying to the [trial court], have read to them from the court reporter's notes that part of such witness' testimony on the particular point in dispute, and no other." The remaining jury note stated, "Did the defendant say Christopher made a move or did he say Christopher raised a gun? (or both)." The trial court responded to that note by providing a one-page excerpt from appellant's testimony on direct examination described above. The record on appeal does not contain a reporter's record of any hearing respecting the jury's notes or the trial court's responses.

Following the jury's verdict and the assessment of punishment as described above, appellant timely filed this appeal.

II. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013); see also Kirk v. State, 421 S.W.3d 772, 776-77 (Tex. App.— Fort Worth 2014, pet. ref'd) (applying Jackson standard to jury's rejection of self-defense theory). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). Evidence is sufficient if "the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict." Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). The jury, as the factfinder, is entitled to judge the credibility of the witnesses and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Wise, 364 S.W.3d at 903 ("The factfinder exclusively determines the weight and credibility of the evidence."). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the jury. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute our judgment for that of the jury").

In reviewing the legal sufficiency of the evidence to support the factfinder's rejection of the defensive issue of self-defense, "we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); accord Gaona v. State, 498 S.W.3d 706, 709 (Tex. App.—Dallas 2016, pet. ref'd); Kirk, 421 S.W.3d at 777.

B. Applicable Law

A person commits murder if he intentionally or knowingly causes the death of an individual or if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1), (b)(2) (West 2011). However, under certain circumstances, self-defense justifies the use of deadly force. Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). The Texas Penal Code provides in part that a person is justified in using deadly force against another when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. TEX. PENAL CODE ANN. § 9.32(a) (West 2011); see also id. § 9.31(a).

The initial burden to produce evidence supporting self-defense rests with the defendant. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton, 804 S.W.2d at 913. Once the defendant produces some evidence, the State bears the ultimate burden of persuasion to disprove the raised defense. See, e.g., Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913-14. "The burden of persuasion is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt." Zuliani, 97 S.W.3d at 594 (citing Saxton, 804 S.W.2d at 913). The issue of self-defense is a fact issue to be determined by the jury, which is free to accept or reject any defensive evidence on the issue. Saxton, 804 S.W.2d at 913-14. If the jury finds the defendant guilty, then it implicitly finds against the defensive theory. Id. at 914.

C. Application of Law to Facts

In his first issue, appellant contends "[t]he evidence is legally insufficient to support appellant's conviction for the offense of murder and the jury's rejection of self-defense." Specifically, appellant argues "the evidence establishes that the deceased pulled a revolver on [appellant] and that [appellant] shot the deceased because he reasonably believed that the use of deadly force was immediately necessary to protect himself against the deceased's use or attempted use of unlawful deadly force." Therefore, appellant contends, "the evidence was insufficient for the jury to find the elements of murder beyond a reasonable doubt and thereby reject that [appellant] acted in self-defense."

The State responds that it "presented sufficient evidence to establish each element of the offense of murder beyond a reasonable doubt, satisfying its burden of proof on both the charged offense and [appellant's] claim of self-defense."

The record shows the jury was presented with conflicting testimony respecting the events in question. Appellant testified that at the time of the shooting in question, McDuffy had a gun in his hand, said something to appellant, and started to raise the gun. However, Rice testified (1) at the time of the shooting, McDuffy had nothing in his hands and said nothing to appellant, (2) the revolver was on the couch both before and after the shooting, and (3) after she went into the "back room" area after the shooting, she heard appellant "shaking [McDuffy's] body" and "rustling around" in the living room area. Further, Hill testified she believed appellant's "paranoid" behavior was "an act." As described above, the jury, as the factfinder, is entitled to judge the credibility of the witnesses and can choose to believe all, some, or none of the testimony presented by the parties. Wise, 364 S.W.3d at 903; Chambers, 805 S.W.2d at 461; Saxton, 804 S.W.2d at 914. On this record, we conclude a rational jury could have found the essential elements of murder beyond a reasonable doubt and could have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914; see also London v. State, 325 S.W.3d 197, 203 (Tex. App.—Dallas 2008, pet. ref'd) (defendant's testimony that he was threatened and in fear for his life did not conclusively prove self-defense); Smith v. State, 355 S.W.3d 138, 146 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (testimony of defendant and defense witnesses did not conclusively prove claim of self-defense where jury also heard evidence undermining defendant's defensive claim). Therefore, we conclude the evidence is sufficient to support appellant's conviction and the jury's rejection of appellant's self-defense theory. See Saxton, 804 S.W.2d at 914.

We decide appellant's first issue against him.

III. JURY CHARGE ERROR

A. Standard of Review

We review alleged jury charge error in two steps. See, e.g., Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). We first determine whether error exists in the charge. Id. Second, if there is error, we review the record to determine whether the error caused sufficient harm to warrant reversal. Id.; Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). In assessing the degree of harm, we look at "the entire jury charge, the state of the evidence (including the contested issues and the weight of probative evidence), the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole." Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); accord Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).

"If the error was preserved by objection, any error that is not harmless will constitute reversible error." Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); see also Almanza, 686 S.W.2d at 171 (if error in jury charge was subject of timely objection in trial court, reversal is required if there is "some harm to the accused from the error" (emphasis original)). "If the error was not preserved by objection, the error will not result in reversal of the conviction without a showing of egregious harm." Price, 457 S.W.3d at 440; accord Ngo, 175 S.W.3d at 743-44. "Egregious harm" is a difficult standard to meet and requires a showing that the defendant was deprived of a fair and impartial trial. Nava, 415 S.W.3d at 298. The record must disclose "actual rather than theoretical harm," and the error must have affected the very basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive theory. Id.

B. Applicable Law

Under article 36.14 of the code of criminal procedure, the trial court shall deliver to the jury "a written charge distinctly setting forth the law applicable to the case[.]" TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). This duty exists even when defense counsel fails to object to inclusions or exclusions in the charge and thus may require the trial court to sua sponte instruct the jury on the law applicable to the case. Taylor, 332 S.W.3d at 486. Each statutory definition that affects the meaning of an element of the offense must be communicated to the jury. Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009); Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986).

Additionally, section 2.03(d) of the Texas Penal Code provides, "If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted." TEX. PENAL CODE ANN. § 2.03(d) (West 2011); Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979). Thus, "[t]he jury must be instructed to acquit the defendant if they believe that he was acting in self-defense or have a reasonable doubt thereof." Russell v. State, 834 S.W.2d 79, 82 (Tex. App.—Dallas 1992, pet. ref'd); accord Brotherton v. State, 666 S.W.2d 126, 128 (Tex. App.—Houston [14th Dist.] 1983, pet. ref'd).

Also, section 6.03 of the Texas Penal Code delineates three "conduct elements" that may be involved in an offense: "(1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct." McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). Specifically, that section provides in part as follows:

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

TEX. PENAL CODE ANN. § 6.03(a)-(b). Unspecified conduct that is criminalized because of its result requires culpability as to that result. McQueen, 781 S.W.2d at 603; see also Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003) ("Murder is a 'result of conduct' offense, which means that the culpable mental state relates to the result of the conduct, i.e., the causing of the death."). The language regarding culpable mental states in a jury charge must be tailored to the conduct elements of the charged offense. Price, 457 S.W.3d at 441. "A trial court errs when it fails to limit the language in regard to the applicable culpable mental states to the appropriate conduct element." Id.

Further, as described above, the penal code provides in part that a person is justified in using deadly force against another when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. TEX. PENAL CODE ANN. § 9.32(a) (West 2011); see also id. § 9.31(a). "An individual has a right to defend from apparent danger to the same extent as he would had the danger been real; provided he acted upon a reasonable apprehension of danger as it appeared to him at the time." Broussard v. State, 809 S.W.2d 556, 558 (Tex. App.—Dallas 1991, pet. ref'd) (citing Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984)).

C. Application of Law to Facts

1. Burden of Proof Respecting Self-Defense

In his second issue, appellant contends "the trial court erred in failing to properly and adequately instruct the jury that the State had the burden of disproving self-defense beyond a reasonable doubt especially in light of the jury note requesting the court for the applicable law on same." According to appellant, (1) "when considering the jury charge as a whole, nothing in the charge informed the jury that the State had to disprove self-defense"; (2) "[t]he [trial] court's instruction did not respond to the question and the jury's confusion by setting forth the applicable law"; and (3) appellant "was entitled to have the jury instructed that the State bore the burden of disproving self-defense beyond a reasonable doubt."

The State responds (1) the trial court properly instructed the jury on the State's burden of proof and (2) consequently, "the response informing the jury that they had 'received all the law and evidence in this case' was a correct statement of the law and did not constitute error."

As described above, the charge of the court stated in part (1) "[i]n all criminal cases, the burden of proof is on the State"; (2) "[a]ll persons are presumed to be innocent, and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt"; (3) "[t]he law does not require a defendant to prove his innocence or produce any evidence at all"; and (4) "[t]he prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt; and if it fails to do so, you must acquit the defendant." Additionally, the charge stated in part,

if you believe from the evidence beyond a reasonable doubt that on or about November 17, 2013, in Dallas County, Texas, the defendant did then and there intentionally or knowingly cause the death of Christopher McDuffy by shooting him with a firearm, a deadly weapon, as alleged in the indictment, but you further

find from the evidence, or have a reasonable doubt thereof, that the defendant reasonably believed that deadly force when and to the degree used, if it was, was immediately necessary to protect himself against the use or attempted use of unlawful deadly force by Christopher McDuffy to protect himself against Christopher McDuffy's use or attempted use of unlawful deadly force, you will acquit the defendant and say by your verdict "not guilty."

(emphasis added). Thus, the charge "required the jury to acquit appellant if they believed that he was acting in self-defense or the jury had a reasonable doubt thereof." See Luck, 588 S.W.2d at 375; Brotherton, 666 S.W.2d at 128; see also TEX. PENAL CODE ANN. § 2.03(d). Additionally, the charge (1) instructed the jury that the burden of proof beyond a reasonable doubt was on the State and (2) contained instructions on the presumption of innocence. See Luck, 588 S.W.2d at 375; Brotherton, 666 S.W.2d at 128. Accordingly, (1) "when the charge is viewed as a whole, it placed the burden on the State to show beyond a reasonable doubt that appellant was not acting in self-defense" and (2) therefore, "[n]o error is shown." Luck, 588 S.W.2d at 375 (rejecting appellant's complaint that jury charge "was erroneous in that it did not inform the jury that the State had to disprove beyond a reasonable doubt the issue of self-defense"). Further, to the extent appellant argues the charge was required to expressly state that acquittal was required unless self-defense was "disproved" by the State beyond a reasonable doubt, that same argument was considered and rejected in Brotherton. See 666 S.W.2d at 128; see also Gonzalez v. State, No. 05-13-00630-CR, 2014 WL 3736208, at *13-14 (Tex. App.—Dallas July 14, 2014, no pet.) (not designated for publication) (concluding "the trial court did not err by submitting the jury charge without including an instruction that the State was required to disprove the issue of self-defense beyond a reasonable doubt," where charge met requirements of Luck and penal code section 2.03(d)) (citing Brotherton, 666 S.W.2d at 127-28); Shafer v. State, No. 05-06-01321-CR, 2008 WL 2699733, at *3 (Tex. App.—Dallas July 11, 2008, no pet.) (not designated for publication) (rejecting appellant's argument that trial court erred by not including a "self-defense negation instruction" in jury charge and not stating in written answer to jury note that prosecution had burden to "disprove self-defense beyond a reasonable doubt").

In support of his position that the trial court should have instructed the jury that the State bears the burden to "disprove the raised defense," appellant cites two cases: Saxton, 804 S.W.2d at 913-14, and Alonzo v. State, 353 S.W.3d 778, 781 (Tex. Crim. App. 2011). Saxton involved the issue of whether, in a sufficiency review, the State's burden of persuasion in disproving the evidence of self-defense required the State to affirmatively produce evidence refuting the self-defense claim. Saxton, 804 S.W.2d at 913. The propriety of the jury charge in that case was not addressed and appellant does not explain how Saxton applies to the jury instruction issue before us. See TEX. R. APP. P. 38.1(i).

In Alonzo, the court of criminal appeals addressed the issues of (1) whether a defendant can be convicted for the lesser-included offenses of manslaughter and aggravated assault when a factfinder has acquitted the defendant for the greater offense of murder based on self-defense and (2) whether a defendant can raise the justification of self-defense when charged with an offense for which the mental state is recklessness, i.e., manslaughter. Alonzo, 353 S.W.3d at 781. That court concluded in part that the trial court erred by instructing the jury that it could consider the lesser-included offenses if it believed the appellant acted in self-defense. Id. Then, that court stated "[t]he jury should have been instructed that if the State had not disproved self-defense beyond a reasonable doubt, they were to acquit the appellant of all [lesser-included offense] charges." Id. However, in Gonzalez, this Court cited that same statement in Alonzo and stated as follows:

Gonzalez relies on one sentence in Alonzo v. State, 353 S.W.3d 778, 781 (Tex. Crim. App. 2011) for the proposition the trial court should have instructed the jury that it was required to acquit Gonzalez if the State had not disproved self-defense beyond a reasonable doubt. However, Alonzo dealt with whether self-defense is applicable to a manslaughter charge, which has a mental state of recklessness. Read in its entirety, we cannot conclude Alonzo changed the State's

burden relating to a claim of self-defense, and we have found no case that has construed Alonzo to have made such a significant change in the law.

Gonzalez, 2014 WL 3736208, at *14 n.4. For the same reasons stated in Gonzalez, we disagree with appellant's position that Alonzo supports his contentions in this case.

On this record, we conclude the charge of the court was not erroneous. See Luck, 588 S.W.2d at 375; Brotherton, 666 S.W.2d at 128; see also TEX. PENAL CODE ANN. § 2.03(d). Additionally, in light of that conclusion, we conclude the trial court's complained-of response to the jury note described above, i.e., "[y]ou have received all the law and evidence in this case," was not error. See Shafer, 2008 WL 2699733, at *4 (where note from deliberating jurors "asked whether the prosecution had to prove appellant did not use self-defense," trial court did not err by not stating in answer that prosecution had to "disprove self-defense beyond a reasonable doubt"). Consequently, we do not reach the question of harm respecting appellant's second issue. See Cortez, 469 S.W.3d at 598.

We decide appellant's second issue against him.

2. Cumulative Effect of Additional Jury Charge Errors

In his third issue, appellant complains of three additional jury charge errors and contends the aggregation of those three errors, "along with" the error alleged in his second issue above, "deprived [appellant] of due process and a fair and impartial trial which was not only some harm but egregious harm." The State responds "[n]one of [appellant's] claims of jury-charge error caused him egregious harm, and his third issue should be decided against him."

First, appellant asserts "the jury charge on self-defense was erroneous" because it "failed to define 'bodily injury' and 'serious bodily injury.'"³ According to appellant, this was "harmful error" because "the prosecutor argued that the second way the jury could find [appellant] guilty of murder was by finding that [appellant] intended to cause 'serious bodily injury' to McDuffy by shooting McDuffy with the firearms," but "the jury was not provided with any instructions as to 'bodily injury' and 'serious bodily injury' to guide it in evaluating the evidence as to [appellant's] culpable mental state." The State concedes that the omission of those definitions constituted jury charge error, but asserts the error was not egregiously harmful to appellant.

3 The Texas Penal Code defines "bodily injury" as "physical pain, illness, or any impairment of physical condition." TEX. PENAL CODE ANN. § 1.07(a)(8) (West Supp. 2016). "Serious bodily injury" is defined by the penal code as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46).

We conclude the trial court's omission of the statutory definitions of the terms "bodily injury" and "serious bodily injury" in the jury charge constituted error. See Villarreal, 286 S.W.3d at 329; Arline, 721 S.W.2d at 352 n.4. Appellant does not assert, and the record does not show, that he objected in the trial court to the error in question. Therefore, the standard of egregious harm is applicable. See Price, 457 S.W.3d at 440; Ngo, 175 S.W.3d at 743-44.

The record does not show "bodily injury" or "serious bodily injury" were contested issues at trial, nor was either term mentioned by either side during opening statements. See Nava, 415 S.W.3d at 298; Almanza, 686 S.W.2d at 171. The evidence showed (1) appellant testified he shot McDuffy "four or five times" and (2) McDuffy's death was caused by those gunshots. During closing argument, the State (1) used the term "serious bodily injury" in describing the two ways the jury could find appellant guilty of murder and (2) stated "[n]one of these elements are in question, whatsoever." Counsel for appellant stated in part during closing argument that appellant "did feel like he was in a life or death situation, and it was either his life or it was someone else's life." In the charge of the court, the term "serious bodily injury" appears three times: twice in connection with the definition of murder and once in the defensive portion of the charge as part of the definition of "deadly force." Considering all relevant information revealed by the record of the trial as a whole, we conclude the error in question did not result in egregious harm to appellant. See Nava, 415 S.W.3d at 298; Almanza, 686 S.W.2d at 171; see also Gadson v. State, No. 08-15-00108-CR, 2017 WL 728369, at *10 (Tex. App.—El Paso Feb. 24, 2017, no pet.) (not designated for publication) (concluding no egregious harm where record did not show definition of term "knowingly," which was erroneously omitted from jury charge, "would have affected the jury's view of an element of the offense that everyone at trial appeared to take as a given").

Second, appellant contends the trial court erred because "the definition of 'knowingly' or 'with knowledge' in the abstract portion of the jury charge failed to limit the culpable mental state to the result of [appellant's] conduct." According to appellant, "[t]his improperly allowed the jury to improperly consider that [appellant's] otherwise justifiable conduct (self-defense) as [sic] a crime upon the circumstances surrounding his conduct." The State concedes that the inclusion of improper conduct elements in the abstract portion of the jury charge constituted error, but argues appellant was not egregiously harmed by that error.

We conclude the trial court erred by including the complained-of conduct elements in the abstract portion of the jury charge. See Price, 457 S.W.3d at 441. As with the above claimed charge error as to "bodily injury" and "serious bodily injury," the record shows no objection in the trial court respecting the claimed error in question. Therefore, we consider whether the record shows egregious harm. See id. at 440; Ngo, 175 S.W.3d at 743-44.

In assessing harm resulting from the inclusion of improper conduct elements in the definitions of culpable mental states, a reviewing court "may consider the degree, if any, to which the culpable mental states were limited by the application portions of the jury charge." Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994) (quoting Cook v. State, 884 S.W.2d 485, 492 n.6. (Tex. Crim. App. 1994)). In the case before us, the record shows the abstract portion of the jury charge included a conduct element that was improper as to the offense of murder charged in this case, i.e., "[a] person acts knowingly, or with knowledge, with respect to circumstances surrounding his conduct when he is aware that the circumstances exist." However, the application portion of the charge in this case stated, in part, as follows:

Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that on or about November 17, 2013, in Dallas County, Texas, the defendant intentionally or knowingly caused the death of Christopher McDuffy, an individual, by shooting Christopher McDuffy with a firearm, a deadly weapon, you will find the defendant guilty of the offense of murder and so say by your verdict.

OR
If you believe from the evidence beyond a reasonable doubt, that on or about November 17, 2013, in Dallas County, Texas, the defendant intended to cause serious bodily injury to Christopher McDuffy and committed an act clearly dangerous to human life by shooting Christopher McDuffy with a firearm, a deadly weapon, and did thereby cause the death of Christopher McDuffy, you will find the defendant guilty of the offense of murder and so say by your verdict. If you have a reasonable doubt as to whether the defendant is guilty of murder, then you must acquit the defendant and say by your verdict not guilty.

Additionally, the charge included the following application paragraph on the issue of self-defense:

Now, therefore, bearing in mind the foregoing definitions and instructions, if you believe from the evidence beyond a reasonable doubt that on or about November 17, 2013, in Dallas County, Texas, the defendant did then and there intentionally or knowingly cause the death of Christopher McDuffy by shooting him with a firearm, a deadly weapon, as alleged in the indictment, but you further find from the evidence, or have a reasonable doubt thereof, that the defendant reasonably believed that deadly force when and to the degree used, if it was, was immediately necessary to protect himself against the use or attempted use of unlawful deadly force by Christopher McDuffy to protect himself against Christopher McDuffy's use or attempted use of unlawful deadly force, you will acquit the defendant and say by your verdict "not guilty."

The application portion of the jury charge instructed the jury that in order to convict appellant of murder, it was required to find beyond a reasonable doubt that appellant intentionally or knowingly caused McDuffy's death. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); see also Gonzalez v. State, No. 05-14-00830-CR, 2015 WL 4657527, at *6-*7 (Tex. App.—Dallas Aug. 6, 2015, no pet.) (mem. op., not designated for publication). The application paragraphs are the "heart and soul" of the jury charge. See Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012). "It is the application paragraph of the charge, not the abstract portion, that authorizes a conviction." Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013) (quoting Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012)). "Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious." Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see also Crenshaw, 378 S.W.3d at 466. In the absence of contrary evidence, we presume the jury followed the trial court's instructions in the application paragraphs of the charge. See Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996).

The record before us shows (1) nothing in the charge emphasized the inapplicable portion of the definition of "knowingly" that appellant complains about and (2) the application paragraph properly placed the culpable mental states. See Patrick, 906 S.W.2d at 492; Hughes, 897 S.W.2d at 295; Delgado v. State, 944 S.W.2d 497, 499 (Tex. App.—Houston [14th Dist.] 1997, pet. ref'd) ("Significantly, the 'nature of conduct' language used in the court's definition paragraphs was not repeated in the application paragraphs. We hold that this instruction appropriately limited the overbroad language used in the court's definitions, and pointed the jury to the proper issue to be resolved in a result-oriented offense."). Additionally, as described above, the record as a whole shows appellant admitted shooting McDuffy and the only contested issue was whether appellant acted in self-defense. See Nava, 415 S.W.3d at 298; Almanza, 686 S.W.2d at 171. On this record, we conclude appellant was not egregiously harmed by the error in question. See Patrick, 906 S.W.2d at 492; Hughes, 897 S.W.2d at 296-97.

Third, appellant asserts the trial court erred by not submitting a jury instruction on "apparent danger." According to appellant, (1) "the charge in the instant case only allowed consideration of self-defense if the jury found [appellant] was 'under attack or attempted attack' and did not contemplate apparent danger'" and (2) "the trial court's failure to instruct the jury on apparent danger was harmful because it precluded or limited the jury from finding that [appellant] acted in self-defense if the danger was apparent to him whether said danger was actual or not."

The State responds that "the trial court properly defined 'reasonable belief'"⁴ and "[s]uch an instruction adequately presented [appellant's] defensive theory and protected his rights." Therefore, the State argues, appellant's complaint of error respecting an instruction on "apparent danger" is without merit.

4 "Reasonable belief" is defined in the penal code as "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(a)(42).

In support of his position, appellant cites two cases in which courts concluded the lack of a jury instruction on apparent danger was error. See Jones v. State, 544 S.W.2d 139, 142-43 (Tex. Crim. App. 1976); Torres v. State, 7 S.W.3d 712, 714-15 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd). However, subsequent to issuing its opinion in Jones, the court of criminal appeals distinguished that case in Valentine v. State, 587 S.W.2d 399, 401 (Tex. Crim. App. 1979). Valentine involved an appellant's complaint that the trial court erred by "fail[ing] to instruct the jury that she had the right to defend against a reasonable apprehension of danger as viewed from her standpoint at the time of the offense." Id. at 400. The court of criminal appeals rejected that complaint and stated in part as follows:

In Jones v. State, supra, relied upon by the appellant, it was held that the court committed reversible error by refusing the defendant's properly requested instruction on his right to defend against apparent danger as viewed from his standpoint when the issue was raised by the evidence. In Jones, the court instructed the jury that the defendant would be justified in killing the deceased if ". . . at the time he did so, The (deceased) was using or attempting to use unlawful deadly force against the defendant, (etc.) . . . ." (Emphasis supplied.) This charge was held to be inadequate because it required the jury to find, or have a reasonable doubt thereof, that at the time he was shot, the deceased was Actually [sic] using or attempting to use unlawful deadly force against the defendant. . . .
. . . .

. . . Unlike the court in Jones v. State, supra, the court in the present case instructed the jury that the appellant's conduct would be justified if the appellant reasonably believed that the deceased was using or attempting to use unlawful deadly force against her at the time of the shooting. By defining the term "reasonable belief" as it did, the court instructed the jury that a reasonable apprehension of danger, whether it be actual or apparent, is all that is required before one is entitled to exercise the right of self-defense against his adversary. Furthermore, we observe that the court's charge is in accordance with Sections [1.07(a)(42)], 9.31, and 9.32 of the Penal Code, all of which adequately presented the appellant's defensive theory and protected her rights. Appellant's contention is overruled.

Id. at 401 (citations omitted).

In the case before us, the trial court properly defined "reasonable belief" in accordance with the penal code. See id.; see also TEX. PENAL CODE ANN. § 1.07(a)(42). By doing so, "the [trial] court instructed the jury that a reasonable apprehension of danger, whether it be actual or apparent, is all that is required before one is entitled to exercise the right of self-defense against his adversary." See Valentine, 587 S.W.2d at 401. On this record, we conclude the trial court did not err by not submitting a jury instruction on "apparent danger." See id.

Now, we address appellant's complaint respecting "cumulative error," which complaint was based on aggregation of "[a]ll the errors in the trial." We concluded above that the trial court did not err as alleged by appellant in his second issue or in the portion of his third issue respecting a jury instruction on "apparent danger." However, we will proceed to address appellant's "cumulative error" complaint as to the two other errors alleged by him in his third issue that we addressed separately as to "egregious harm," i.e., (1) the trial court's omission of the statutory definitions of the terms "bodily injury" and "serious bodily injury" in the jury charge and (2) the inclusion of improper conduct elements in the abstract portion of the charge.

"It is conceivable that a number of errors may be found harmful in their cumulative effect." Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). This doctrine provides relief only if the cumulative effect rendered the phase of the trial fundamentally unfair. Flores v. State, No. 14-15-00754-CR, 2016 WL 6990053, at *20 (Tex. App.—Houston [14th Dist.] Nov. 29, 2016, pet. ref'd) (citing Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010)); see also Chamberlain, 998 S.W.2d at 238 ("[W]e are aware of no authority holding that non-errors may in their cumulative effect cause error.").

According to appellant, as a result of the errors in question, "[t]he jury charge was misleading and incomplete causing confusion to the jury" and "[t]his denied [appellant] a fair and impartial trial." The State argues that the two errors in question, even when considered together, "in no way caused [appellant] egregious harm."

We concluded above that the record shows no egregious harm from either error in question. Further, as described above, the record shows (1) appellant admitted shooting McDuffy, which was the cause of his death; (2) "bodily injury" and "serious bodily injury" were not contested issues at trial; and (3) the instructions in the application portion of the charge "limited the overbroad language used in the court's definitions, and pointed the jury to the proper issue to be resolved in a result-oriented offense." Delgado, 944 S.W.2d at 499. Appellant cites no case, and we have found none, in which two errors of a similar nature were determined to constitute "cumulative error" requiring reversal. See generally Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) (Cochran, J., concurring) (noting that cumulative error occurs when "multiple errors synergistically achieve the critical mass necessary to cast a shadow upon the integrity of the verdict"). On this record, we conclude the aggregation of the two errors in question did not render appellant's trial "fundamentally unfair." See Flores, 2016 WL 6990053, at *20.

We decide against appellant on his third issue.

IV. MODIFICATION OF THE JUDGMENT

Finally, although not an arguable issue, we note that in the trial court's "Judgment of Conviction by Jury," appellant's first name is misspelled as "Torry." Also, that judgment states punishment was assessed by the jury, while the record shows the trial court assessed punishment. We have the authority to modify incorrect judgments when the necessary information is available to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex. App.—Dallas 2002, pet. ref'd); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to correct the spelling of appellant's first name to "Torrey" and state that punishment was assessed by the trial court and not by the jury.

V. CONCLUSION

We decide appellant's three issues against him. Additionally, we modify the trial court's judgment to correct the spelling of appellant's first name to "Torrey" and state that punishment was assessed by the trial court. As modified, the trial court's judgment is affirmed.

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE Do Not Publish
TEX. R. APP. P. 47.2
150143F.U05

JUDGMENT

On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F-1362599-K.
Opinion delivered by Justice Lang, Justices Stoddart and Schenck participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

We change the spelling of appellant's first name from "Torry" to "Torrey" and change the portion of the judgment respecting assessment of punishment to state punishment was assessed by the trial court. As MODIFIED, the judgment is AFFIRMED. Judgment entered April 12, 2017.