                                                                                PD-0016-15
                                                              COURT OF CRIMINAL APPEALS
                      No. PD-0016-15                                           AUSTIN, TEXAS
                                                             Transmitted 2/5/2015 7:31:35 PM
                             In the                            Accepted 2/6/2015 3:36:11 PM
          Court of Criminal Appeals of Texas                                    ABEL ACOSTA
                                                                                        CLERK
                           At Austin
                   
                   No. 01-12-00688-CR
                  In the Court of Appeals
               For the First District of Texas
                   
                        No. 1348372
                   In the 178th District Court
                    Of Harris County, Texas
                   
                   RAUL RODRIGUEZ
                           Appellant
                              v.
               THE STATE OF TEXAS
                            Appellee
                   
     State’s Petition for Discretionary Review
                   

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas

                                                 KELLI JOHNSON
                                                 DONNA LOGAN
                                                 Assistant District Attorneys
                                                 Harris County, Texas
February 6, 2015
                                                 CLINTON A. MORGAN
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 State Bar No. 24071454
                                                 morgan_clinton@dao.hctx.net

                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 Tel: (713) 755-5826
                                                 FAX: (713) 755-5809

                                                 Counsel for the Appellant

             ORAL ARGUMENT REQUESTED
                     Statement Regarding Oral Argument

      The background subject in this case will require this Court to interpret a

complex interaction between Texas’s self-defense and concealed-handgun-

license laws. Also, the State’s third point questions the Court of Appeals’s

novel holding that an appellee could be estopped from making a harm

argument regarding jury-charge error. This holding has far-reaching

implications, as jury charges frequently contain error and the deciding issue

on appeal is the harm analysis. The State requests oral argument so that the

parties can address any questions or concerns this Court might have after

reading the parties’ briefs.




                                       i
                          Identification of the Parties

Counsel for the State:

      District Attorney of Harris County —       Devon Anderson

      Assistant District Attorneys at trial —    Kelli Johnson
                                                 Donna Logan

      Assistant District Attorney on appeal —    Clinton A. Morgan
                                                 1201 Franklin St.
                                                 Houston, Texas 77002

Appellant:                                       Raul Rodriguez

Counsel for the Appellant at trial:              Neal Davis & Bill Stradley
                                                 515 Caroline St.
                                                 Houston, Texas 77002

Counsel for the Appellant on appeal:             Neal Davis, Bill Stradley &
                                                 Jonathan Landers
                                                 515 Caroline St.
                                                 Houston, Texas 77002

Trial Judge:

      Presiding judge —                          David L. Mendoza




                                       ii
                                                        Table of Contents

                                                                                                                                             Page

Statement Regarding Oral Argument .......................................................... i
Identification of the Parties ........................................................................ ii
Table of Contents .......................................................................................... iii
Index of Authorities ....................................................................................... v
Statement of the Case ................................................................................... 1
Statement of Issues Presented .................................................................... 1
Statement of Procedural History ................................................................ 1
Factual and Legal Background
      I.      The appellant filmed his armed confrontation with his neighbor. ........ 2
      II. The jury charge included an instruction based in part on a correct
      statute and in part on an inapplicable statute. ........................................................ 3
First Ground for Review
   The Court of Appeals erred by holding that the appellant’s objection — that
   there was no evidence to support the submission of a particular jury
   instruction — was sufficient to preserve the error that was found on appeal
   — that the instruction was misworded. ......................................................................... 7
      I. The appellant objected that the instruction was a “comment on the
      weight of the evidence” and that no evidence supported the charge. ........... 8
      II. The Court of Appeals incorrectly held that the appellant’s objection
      was sufficient to preserve for review the trial court’s use of the wrong
      statute. ...................................................................................................................................... 9
Second Ground for Review
   The Court of Appeals misapplied this Court’s decision in Reeves by holding
   that confusion alone was sufficient to constitute “some harm,” regardless of
   whether that confusion actually helped the appellant. ..........................................12




                                                                        iii
Third Ground for Review
   The Court of Appeals erred in refusing to consider the State’s Almanza harm
   argument based on its belief that the State was estopped from making that
   argument. ...................................................................................................................................16
       I. The State argued that the appellant’s self-defense claim failed as a
       matter of law, thus he was not harmed by minor errors in the discussion-
       of-differences instruction. ............................................................................................. 16
       II. The Court of Appeals erred to apply the doctrine of estoppel to an
       Almanza harm analysis because there is no burden of proof in a harm
       analysis and estoppel only has meaning if one party has a burden of proof
       or persuasion. ..................................................................................................................... 18
Conclusion .................................................................................................... 21
Certificate of Compliance and Service ..................................................... 22
Appendix ....................................................................................................... 23
   Rodriguez v. State, ___ S.W.3d ___, No. 01-12-00688-CR, 2014 WL 7206226
   (Tex. App.—Houston [1st Dist.] Dec. 18, 2014). .......................................................23




                                                                       iv
                                                 Index of Authorities


Cases
Andrews v. State
  774 S.W.2d 809 (Tex. App.—
  Eastland 1989, pet. ref’d) .................................................................................................. 10
James v. State
  418 S.W.2d 513 (Tex. Crim. App. 1967) ....................................................................... 10
Ovalle v. State
  13 S.W.3d 774 (Tex. Crim. App. 2000) .......................................................................... 19
Reed v. State
  14 S.W.3d 438 (Tex. App.—
  Houston [14th Dist.] 2000, pet. ref’d) .......................................................................... 19
Reeves v. State
  420 S.W.3d 812 (Tex. Crim. App. 2013) ....................................................................... 13
Rodriguez v. State
  ___ S.W.3d ___, No. 01-12-00688-CR, 2014 WL 7206226 (Tex. App.—
  Houston [1st Dist.], Dec. 18, 2014) ....................................................................... passim
Taylor v. State
  769 S.W.2d 232 (Tex. Crim. App. 1989) ....................................................................... 12
Walters v. State
 247 S.W.3d 204 (Tex. Crim. App. 2007) ....................................................................... 10
Warner v. State
 245 S.W.3d 458 (Tex. Crim. App. 2008) ....................................................................... 18


Statutes
TEX. CODE CRIM. PROC. art. 36.14 ............................................................................................ 10
TEX. PENAL CODE § 46.02............................................................................................................... 3
TEX. PENAL CODE § 46.035 ............................................................................................................ 5
TEX. PENAL CODE § 46.15............................................................................................................... 4
TEX. PENAL CODE § 9.31 ........................................................................................................4, 5, 6



                                                                   v
                            Statement of the Case

      The appellant was indicted for murder. (CR 2). The appellant pled not

guilty. (3 RR 300). A jury found him guilty as charged. (CR 2376, 2393). The

jury assessed punishment at forty years’ confinement. (CR 2392, 2393). The

trial court certified the appellant’s right of appeal, and the appellant filed a

timely notice of appeal. (CR 2395, 2398).


                       Statement of Issues Presented

      1. The Court of Appeals erred by holding that the appellant’s objection
         — that there was no evidence to support the submission of a
         particular jury instruction — was sufficient to preserve the error that
         was found on appeal — that the instruction was misworded.

      2. The Court of Appeals misapplied this Court’s decision in Reeves by
         holding that confusion alone was sufficient to constitute “some
         harm,” regardless of whether that confusion actually helped the
         appellant.

      3. The Court of Appeals erred in refusing to consider the State’s
         Almanza harm argument based on its belief that the State was
         estopped from making that argument.


                      Statement of Procedural History

      On direct appeal, the appellant raised twenty-two points of error, seven

relating to the guilt phase of trial and fifteen related to the punishment phase.

On December 18, 2014, the First Court of Appeals issued a published opinion


                                    1
sustaining the appellant’s first point of error, relating to the guilt-phase jury

charge, and reversing the appellant’s conviction. Rodriguez v. State,

___ S.W.3d ___, No. 01-12-00688-CR, 2014 WL 7206226 (Tex. App.—Houston

[1st Dist.], Dec. 18, 2014).


                         Factual and Legal Background

      The appellant took his gun with him when he walked to his neighbor’s

house to make a noise complaint, and he wound up killing the neighbor. At

trial, he claimed self-defense. The trial court instructed the jury on the right to

self-defense, including several qualifications on that right. Parts of this

instruction were based on an inapplicable statute. This petition regards the

Court of Appeals’s conclusion that this error requires reversal.


     I.   The appellant filmed his armed confrontation with his neighbor.

      On May 1, 2010, Kelly and Mindy Danaher held a joint birthday party for

Mindy and their daughter at their home in rural Harris County. (5 RR 220,

222). As the party stretched late into the night, the appellant called in noise

complaints to the local constable’s office. (4 RR 66). When the constable did

not shut down the party, the appellant grabbed his pistol, an extra magazine,

and a video camera and went to the Danahers’ house. (State’s Ex. 6). For fiteen

minutes he stood in the road filming the party from a distance, then he used

                                     2
his flashlight to get the partiers’ attention. (Ibid.). The partiers came out to the

road, but as soon as they got close to the appellant he pulled his gun and

threatened to shoot them. (Ibid.) The partiers backed away for a while, but

eventually an intoxicated partier got within a dozen feet of the appellant and

laughed, at which point the appellant opened fire. (Ibid.; 5 RR 277; 6 RR 91-

92). The appellant shot three of the partiers before they were able to subdue

him; one, Kelly Danaher, died at the scene. (5 RR 280-87; 6 RR 91-95). At trial,

the appellant presented no evidence but relied on a State’s exhibit (the video

he recorded) to prove his self-defense claim. He also relied on the State’s

evidence that he had been issued a concealed handgun license (CHL). (State’s

Ex. 4).


    II.   The jury charge included an instruction based in part on a
          correct statute and in part on an inapplicable statute.

      At the charge conference, the parties discussed an instruction based on

Penal Code Section 9.31(b)’s qualification on self-defense that an actor’s use of

force is not justified “if the actor sought an explanation from or discussion

with the other person concerning the actor’s differences with the other person

while the actor was carrying a weapon in violation of Section 46.02 [Unlawful

Carrying Weapons].” TEX. PENAL CODE § 9.31(b)(5)(A); (see 9 RR 110-13; CR

2368). Section 46.02 prohibits, inter alia, carrying a handgun “if the person is

                                      3
not on the person’s own premises or premises under the person’s control, or

inside of or directly en route to a motor vehicle or watercraft that is owned by

the person or under the person’s control.” TEX. PENAL CODE § 46.02(a).

      It is undisputed that the appellant sought a discussion of differences

with Danaher, was carrying a handgun, and was on premises that were not his

or under his control. The problem the court ran into in incorporating this

qualification to the right of self-defense is that the appellant is a CHL holder.

Penal Code Section 46.15 exempts several categories of individuals from

Section 46.02, one of them being individuals who are “carrying a concealed

handgun and a valid [CHL].” TEX. PENAL CODE § 46.15(b)(6). Thus, if the

appellant were carrying a concealed handgun and his CHL when he went to

discuss his differences with Kelly Danaher, he would not be in violation of

Section 46.02 and the discussion-of-differences qualification would not apply

to him. On the other hand, if his handgun was not concealed when he went to

discuss his differences, or if he did not carry his CHL with him, his use of force

could not be justified. Page 9 of the jury charge was an attempt to put this

matter to the jury:

      You are further instructed, as part of the law of this case, and as a
      qualification of the law on self-defense, that the use of force by a
      defendant against another is not justified if the defendant sought an
      explanation from or discussion with the other person concerning the
      defendant’s differences with the other person while the defendant was
                                     4
      failing to conceal the handgun that he was carrying as a concealed
      handgun license holder, in violation of the law.

      A person commits an offense if, while the person was a holder of a
      license to carry a concealed handgun, the person intentionally failed to
      conceal the handgun.

      A person commits an offense if, while the person was a holder of a
      license to carry a concealed handgun, the person carried a handgun and
      was intoxicated.

      “Handgun” means any firearm that is designed, made, or adapted to be
      fired with one hand.

      If you find from the evidence beyond a reasonable doubt that the
      defendant, Raul Rodriguez, did then and there on May 2nd, 2010, fail to
      conceal a handgun in violation of the law stated above, before seeking
      an explanation from or discussion with the other person concerning the
      defendant’s differences with the other person, then you will find against
      the defendant on the issue of self-defense.

(CR 2368).

      The first paragraph is an accurate statement of the law. The phrase “in

violation of the law” at the end is redundant — had the appellant failed to

conceal his handgun, he would have been in violation of the law — but

otherwise the paragraph is accurate, as far it goes.

      The second and third paragraphs, however, should not have been

included in this portion of the charge. These paragraphs describe two different

ways to violate Penal Code Section 46.035, Unlawful Carrying of Handgun by

License Holder. See TEX. PENAL CODE § 46.035(a), (d). That offense has no


                                     5
relevance to the discussion-of-differences qualification.1 The first and fifth

paragraphs reflect this fact, as they do not instruct the jury on how to apply

the second and third paragraphs to the issue of self-defense.

       The fourth paragraph is an accurate and relevant definition, but the fifth

paragraph has a couple of errors. It asks whether the appellant failed to

conceal his gun “before seeking an explanation from or discussion with”

Danaher. However, the relevant question (which the first paragraph stated

correctly) was whether he failed to conceal his gun “while” seeking an

explanation or discussion. See TEX. PENAL CODE § 9.31(b)(5). The improper

tense is relevant because the State presented evidence from one of the

appellant’s neighbors, Pete Fornols, that the appellant was walking around the

neighborhood with two unconcealed handguns at 8:30 pm, four hours before

the killing. (See 7 RR 182-89).

       Also, the fifth paragraph asks whether the appellant “fail[ed] to conceal

a handgun in violation of the law stated above” which seems to refer to the

second and third paragraphs. However, incorporating those paragraphs in this

way does not do much; incorporating the second paragraph only requires that

the failure to conceal be intentional, and incorporating the third paragraph


1 It is relevant to the duty to retreat, as Section 9.31(e) absolves a defendant of a duty to
retreat only if, inter alia, he is “not engaged in criminal activity at the time the force is used.”
The duty-to-retreat instruction was given elsewhere in the charge.
                                             6
does nothing at all, as it makes no reference to a law violation resulting from a

failure to conceal.

      On appeal, the parties and the Court of Appeals agreed that this portion

of the charge was erroneous. See Rodriguez, 2014 WL 7206226 at *8-10. The

State believes, however, that the Court of Appeals erred in its assessment of

whether these errors required reversal. The Court of Appeals’s errors fall into

three categories: It erred in determining that the appellant’s objection alerted

the trial court to these errors; it erred in assessing the harm caused by these

errors; and it erred in refusing to consider the State’s argument that, because

the appellant was not entitled to a self-defense instruction at all, the errors

were harmless.


                           First Ground for Review


The Court of Appeals erred by holding that the appellant’s objection —
that there was no evidence to support the submission of a particular jury
instruction — was sufficient to preserve the error that was found on
appeal — that the instruction was misworded.

      The Court of Appeals held that the appellant’s objection to the existence

of this jury charge was sufficient to preserve the errors in the wording of the

charge. The State does not believe that the appellant’s objection alerted the

trial court to the errors found by the appellate court, thus it was error to hold


                                    7
that the appellant preserved his complaint and could gain reversal under

Almanza’s “some-harm” standard. If the Court of Appeals’s published holding

is left standing, it will encourage parties to sandbag trial courts by raising

vague trial objections but precise appellate complaints.


    I.    The appellant objected that the instruction was a “comment on
          the weight of the evidence” and that no evidence supported the
          charge.

      During the charge conference, defense counsel specified his complaints

about the five-paragraph instruction that would become page 9 of the court’s

charge:

      I think this is improper comment on the weight of the evidence.
      Also, I don’t think the evidence supports this charge in this case.
             Specifically, there’s absolutely no … credible evidence that
      [the appellant] failed to conceal his firearm or that he was
      intoxicated.

(9 RR 110). Defense counsel then discussed what he perceived to be the

evidence regarding whether the appellant’s gun was concealed:

             [Pete Fornols] testified [that] at some point early in the
      evening. This is before the shooting ever occurred or [the
      appellant] ever went over next door. That [the appellant] had two
      handguns in plain view.…
             … [S]o that has no relevance as to the time of the shooting, if
      [the appellant] was legally carrying a firearm. In other words, at
      the time of self-defense when he shot the weapon, was he
      unlawfully displaying a firearm, that would negate that. And so
      that testimony doesn’t really relate to that at all.


                                     8
            The only other testimony was, Marshall Stetson [one of the
      partiers] said something on direct examination about how Raul
      Rodriguez had a firearm and it was visible. And it was a little
      unclear what he said.
            But [co-counsel] cross-examined him. And he clearly said …
      that what he meant was he saw the firearm when [the appellant]
      had actually drawn it on Kelly Danaher.…
            And so with that, I don’t think there’s evidence that
      supports the instruction. And I also think it’s an improper
      comment on the weight of the evidence.

(9 RR 110-11).

      The State replied that the Penal Code Section 9.31(b)(5)(A) exception

“talks about carrying a weapon in violation of the law,” and therefore, the jury

charge should include laws that the evidence showed the appellant violated,

specifically Penal Code Section 46.035. (9 RR 112). The State argued that there

was evidence the appellant’s handgun was not concealed when he went to

discuss his differences with the partiers; the trial court agreed and overruled

the appellant’s objections. (9 RR 112-13).


   II.   The Court of Appeals incorrectly held that the appellant’s
         objection was sufficient to preserve for review the trial court’s
         use of the wrong statute.

      On appeal, the State argued that the appellant’s objection did not

apprise the trial court of the errors raised in his brief. (State’s Reply to the

Appellant’s Amended Brief at 9-12). Indeed the trial court was correct to

overrule the appellant’s trial objections because there was evidence that his

                                    9
handgun was unconcealed and that he was intoxicated. (See 5 RR 187-88

(appellant told paramedics he was on multiple anti-depressants and

painkillers); 6 RR 80-81 (witness: appellant’s gun “not concealed” at

beginning of confrontation)). To the extent that “comment on the weight of the

evidence” is a standalone objection, it was too vague to have meaning. See

Andrews v. State, 774 S.W.2d 809, 811 (Tex. App.—Eastland 1989, pet. ref’d)

(citing James v. State, 418 S.W.2d 513 (Tex. Crim. App. 1967); see also Walters

v. State, 247 S.W.3d 204, 212 (Tex. Crim. App. 2007) (noting multiple meanings

of “comment on the weight of the evidence”).

      The Court of Appeals, however, interpreted the appellant’s objection

much differently. First, it said that the appellant’s invocation of Fornols’s

testimony apprised the trial court of the incorrect tense in the fifth paragraph

of the erroneous charge. Rodriguez, 2014 WL 7206226 at *11. On this matter,

the Court of Appeals simply misread the record; the appellant’s objection did

not mention the erroneous tense at all. However, this misreading played no

role in the Court of Appeals’s judgment, as it held that the erroneous tense

was, at worst, harmless. Id. at *10.

      Regarding the other errors in the charge, however, the Court of Appeals

made this holding: “Although [the appellant] did not parse the instruction and



                                       10
detail each of the errors in it, we conclude that his objection was sufficient to

preserve the error he complains of on appeal.” Id. at 11.

      But “pars[ing] the instruction and detail[ing] … the errors in it” is

generally what is meant by “preserv[ing] the error.” See TEX. CODE CRIM. PROC.

art. 36.14 (defendant must “distinctly specif[y] each ground of objection”). The

Court of Appeals cited to several cases for boilerplate language supporting the

liberal interpretation of trial complaints, but it did not follow the language it

cited. For instance, it quoted Clark v. State, 364 S.W.3d 333 (Tex. Crim. App.

2012) for the proposition that an “issue [is] preserved without having been

explicitly stated if ‘there have been statements or actions on the record that

clearly indicate what the judge and opposing counsel understood the

argument to be.” Rodriguez, 2014 WL 7206226 at *11. But in this case, the

record shows that the trial court and the State thought the appellant’s

objection was that there was no evidence to support a discussion-of-

differences instruction. There is no hint in the record that the trial court or the

State understood the appellant to be objecting to the errors that were found

on appeal: an irrelevant phrase at the end of one paragraph, two paragraphs

based on the wrong statute, and an incorrect tense in another paragraph.

      The problems in the charge that were found on appeal were technical in

nature; to be preserved, the appellant needed to “parse” and “detail” what was
                                    11
wrong with the charge. See Taylor v. State, 769 S.W.2d 232, 234 (Tex. Crim.

App. 1989) (“the adequacy of an objection must be judged on whether it

isolates the portion of the charge which is alleged to be deficient and identifies

the reason for its deficiency”). The appellant’s appellate complaint was

substantially different from his trial objection. Therefore, the Court of Appeals

erred by holding his objection sufficient to preserve the errors that it found.


                          Second Ground for Review


The Court of Appeals misapplied this Court’s decision in Reeves by
holding that confusion alone was sufficient to constitute “some harm,”
regardless of whether that confusion actually helped the appellant.

      On appeal, the appellant argued that the errors in the discussion-of-

differences instruction allowed the jury to reject his self-defense claim based

solely on his being intoxicated while carrying a handgun. (Appellant’s

Amended Brief at 35). The State argued that the errors in the jury charge

either were meaningless or they aided the appellant by increasing the State’s

burden of proof. (State’s Reply to Appellant’s Amended Brief at 15-17). The

Court of Appeals claimed that both of these interpretations of the instruction

were plausible, but held that it need not further analyze the matter because,

regardless of which reading was more plausible, the instruction “was



                                    12
confusing. This is enough to weigh in favor of finding some harm.” Rodriguez,

2014 WL 7206226 at *12.

      The Court of Appeals attributed its holding — that “confusion” per se

weighs in favor of finding harm — to this Court’s recent opinion in Reeves v.

State, 420 S.W.3d 812 (Tex. Crim. App. 2013). See Rodriguez, 2014 W 7206226

at *12 (“See Reeves, 420 S.W.3d at 818 (function of charge is to ‘prevent

confusion’)”). However, the Court of Appeals’s use of Reeves as a basis for not

conducting an actual harm analysis stands in sharp contrast to Reeves itself,

which involved a detailed harm analysis. This Court should grant review of

this case to prevent the Court of Appeals’s holding from becoming an accepted

view of Reeves.

      In Reeves, a murder defendant raised the issue of self-defense and the

trial court, over objection, erroneously instructed the jury on the law of

provocation as a qualification on the right of self-defense. Reeves, 420 S.W.3d

at 815. As part of its harm analysis, this Court noted that, while the

provocation instruction was relatively clear and well-written, the remainder of

the jury charge’s instruction on self-defense was “a six-page impenetrable

forest of legal ‘argle-bargle’…” Id. at 817. This Court concluded that the result

of the indecipherable language in the self-defense portion of the charge was to



                                    13
bring attention to the erroneously-submitted provocation instruction. Id. at

819.

       The Court of Appeals’s interpretation of Reeves as holding that any

confusion is harmful is incorrect. Reeves conducted a detailed and subtle

analysis to show that the confusion in the charge brought attention to an

erroneously-submitted portion of the charge, and it was that focus, not the

underlying confusion, that contributed to the harm. Anytime there is error in a

jury charge (and often when there is not) there will be confusion. The Court of

Appeals did not use Reeves as an example of a harm analysis, but as a reason

not to conduct a harm analysis.

       There is a significant difference in the types of errors involved in Reeves

and this case that makes the Court of Appeals’s misuse of Reeves particularly

egregious. Reeves dealt with an erroneously-submitted instruction that limited

the defendant’s right of self-defense. In such a case, there is no conceivable

way the error could have benefited the defendant. This case, by contrast, dealt

with a limitation on self-defense that was supported by the evidence, but

which was improperly worded when it was submitted to the jury. The

presence of a misworded charge is not necessarily harmful; if the miswording

increased the State’s burden of proof or discredited a theory of guilt, that

would actually aid the defendant. Determining whether a miswording was
                                    14
harmful requires analyzing how it fit into the overall jury charge and what it

instructed the jury to do. The Court of Appeals refused to consider these

matters.

      The Court of Appeals’s focus on “confusion,” rather than actual harm,

went so far that at one point it noted an error that objectively aided the

appellant but then counted it as harmful because it was “confusing.” In

footnote 4, the Court of Appeals took note of the trial court’s instruction

regarding the duty to retreat, which was erroneous but was not brought up by

either party. That instruction told the jury that a defendant does not have a

duty to retreat if, inter alia, he is “not engaged in criminal activity at the time

the deadly force is used”; the instruction followed this up by instructing the

jury not to consider whether the appellant had a duty to retreat. (CR 2363). As

the Court of Appeals noted, the plain inference to be drawn from those

statements is that the appellant was not engaged in criminal activity.

Rodriguez, 2014 WL 7205226 at *8 n.4. Instead of taking this inference to the

next logical step — that if the jury was instructed in the duty-to-retreat

paragraph that the appellant was not engaged in criminal activity, the jury

could not have used the complained-of discussion-of-differences instruction to

find against the appellant — the Court of Appeals described the duty-to-

retreat instruction as “confusing” and moved on. See ibid.
                                    15
      The Court of Appeals used this Court’s opinion in Reeves as a reason not

to conduct a meaningful harm analysis. Confusion alone is not a basis for

reversal if it does not harm the defendant, and Reeves did not hold that it is.

Unless this Court grants review, however, this will become an accepted use of

Reeves.


                          Third Ground for Review


The Court of Appeals erred in refusing to consider the State’s Almanza
harm argument based on its belief that the State was estopped from
making that argument.

      The most jurisprudentially far-reaching part of the Court of Appeals’s

opinion is its holding that the doctrine of estoppel can prevent an appellee

from raising harm arguments in response to claims of jury-charge error.


    I.    The State argued that the appellant’s self-defense claim failed as
          a matter of law, thus he was not harmed by minor errors in the
          discussion-of-differences instruction.

      At trial, the State was content to fight the appellant’s self-defense claims

by arguing his actions were not reasonable. (see 10 RR 7-20, 52-86). On

appeal, though, the State pointed out that, as a matter of law, the appellant’s

use of force was not justified. (State’s Reply to the Appellant’s Amended Brief

at 17-21). As discussed earlier, the appellant sought a discussion of

differences while carrying a handgun at a place that was not property he
                                    16
owned or controlled, therefore the qualification on self-defense found in Penal

Code Section 9.31(b)(5)(A) would apply to him; the only way to avoid the

application of this qualification would be to show that, under Penal Code

Section 46.15, he was exempt from the purview of Penal Code Section 46.02.

      There is no evidence in this case that any of the Section 46.15 exceptions

apply to the appellant. The appellant has acted all along as though the CHL

exception found in Section 46.15(b)(6) applies to him, but that exception only

applies to an individual who “is carrying a concealed handgun and a [CHL].”

TEX. PENAL CODE § 46.16(b)(6). There was no evidence at trial that the

appellant was carrying either.

      Only one witness, Marshall Stetson, testified about whether the

appellant’s handgun was concealed, and he said the appellant drew his gun

from an unconcealed holster. (6 RR 80-82). There was no evidence whatsoever

as to whether the appellant carried his CHL. (See 5 RR 156-57 (defense

counsel stating he did not know if the appellant had his wallet the night of the

incident, and testifying officer stating he did not remember seeing the

appellant’s CHL)). Because the appellant failed to produce evidence showing

he was not in violation of Penal Code Section 46.02 when he went to discuss

his differences with Kelly Danaher, his use of force was not justified as a

matter of law. See TEX. PENAL CODE § 9.31(b)(5)(A).
                                   17
      As part of its harm argument related to the jury-charge error, the State

argued that the fact that the appellant’s self-defense claim failed as a matter of

law meant that any errors in the self-defense portion of the jury charge were

harmless, because whatever instruction he got was more beneficial than what

he was entitled to. That is, had the jury charge been correct, there would have

been no self-defense instruction at all, and if this case were remanded for

another trial on the same evidence and a correct charge the result would be a

foregone conclusion. The Court of Appeals refused to consider this argument

because it believed the State was estopped from making it. Rodriguez, 2014

WL 7206226 at *14.


    II.   The Court of Appeals erred to apply the doctrine of estoppel to
          an Almanza harm analysis because there is no burden of proof in
          a harm analysis and estoppel only has meaning if one party has
          a burden of proof or persuasion.

      The Court of Appeals erred to apply the doctrine of estoppel to a jury-

charge harm analysis. “[B]urdens of proof or persuasion have no place in a

harm analysis conducted under Almanza.” Warner v. State, 245 S.W.3d 458,

464 (Tex. Crim. App. 2008). While the parties may advance arguments to aid

an appellate court’s harm analysis, the actual analysis is something that the

court is obliged to conduct based on the content of the record, regardless of



                                    18
the arguments of the parties. Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim.

App. 2000).

      Thus, application of the estoppel doctrine in this context is

inappropriate. Even if the State did not make a harm argument, the Court of

Appeals would still have to conduct a harm analysis. A harm analysis is

supposed to assess the likelihood that an error affected the proceedings, but

the legal positions the parties took at trial do not make an error more or less

harmful. “Estopping” a party from making a particular harm argument only

has meaning if that party has a burden to show that the error was harmless.

The law is clear that there is no such burden.

      The Court of Appeals cited no authority for the proposition that estoppel

applied to an Almanza harm analysis. Its only authority for using estoppel was

Reed v. State, 14 S.W.3d 438 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

In that case, the defense and the State made a joint pre-trial motion to have

Reed psychologically evaluated, but the evaluation never occurred. Reed, 14

S.W.3d at 442. On appeal, the State argued that the trial court did not abuse its

discretion in proceeding with Reed’s trial because there was no evidence that

would raise a “bona fide doubt” as to Reed’s competency. Ibid. The Fourteenth

Court held that the State was estopped from making that argument because it

conflicted with the position the State took in its trial motion. Ibid.
                                     19
       Reed applied estoppel to an argument regarding whether the trial court

erred. Even if estoppel was appropriate in that context,2 that does not make it

applicable to a harm argument; the question of whether there was error is

wholly distinct from the question of whether the error was harmful. By

holding that the State’s harm argument was, essentially, unpreserved, the

Court of Appeals has issued a published opinion that conflicts with this Court’s

repeated holdings that there is no burden of proof or persuasion in an

Almanza harm analysis. This Court should review that significant holding.




2 The State is not convinced that Reed was correct to use estoppel to prohibit an appellee
from advancing an argument in defense of the trial court’s judgment, but that matter is too
complex to get into in this petition.
       As a side note, it is worth contrasting the actions that led to estoppel in Reed and in
this case. In Reed, the State filed a motion questioning the defendant’s competence, and
then on appeal asserted there was no evidence that the defendant was incompetent. In this
case, the Court of Appeals pointed to the State’s actions at trial that contested the
appellant’s claim of self-defense as a basis for holding that, on appeal, the State was
estopped from pointing out that the appellant had no right of self-defense.
                                         20
                                 Conclusion

      The State asks this Court to grant review, reverse the Court of Appeals,

and remand this case for consideration of the appellant’s remaining points.

                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas


                                                /s/ C.A. Morgan
                                                CLINTON A. MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002-1923
                                                (713) 755-5826
                                                Texas Bar No. 24071454




                                   21
                     Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word-counting function, the

portion of this brief for which Rule of Appellate Procedure 9.4(i)(1) requires a

word count contains 4,494 words.

      I also certify that I have requested that efile.txcourts.gov electronically

serve a copy of this brief to:

      Neal Davis
      ndavis@sdrfirm.com

      Jonathan Landers
      jlanderslaw@gmail.com

      Lisa McMinn
      State Prosecuting Attorney
      information@spa.texas.gov



                                                 /s/ C.A. Morgan
                                                 CLINTON A. MORGAN
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002-1923
                                                 (713) 755-5826
                                                 Texas Bar No. 24071454


Date: February 5, 2014




                                   22
                              Appendix


Rodriguez v. State, ___ S.W.3d ___, No. 01-12-00688-CR, 2014 WL 7206226
(Tex. App.—Houston [1st Dist.] Dec. 18, 2014).




                               23
Rodriguez v. State, --- S.W.3d ---- (2014)
2014 WL 7205226



                                                             in the street. Two others were struggling to hold down
                2014 WL 7205226                              Rodriguez, who had fired the shots. Everyone other than
  Only the Westlaw citation is currently available.          Rodriguez had been at a party inside. Danaher, the host of
                                                             the party, died at the scene.
     NOTICE: THIS OPINION HAS NOT BEEN
     RELEASED FOR PUBLICATION IN THE                         Rodriguez’s defensive theory was that he fired his
PERMANENT LAW REPORTS. UNTIL RELEASED,                       handgun in self-defense after the partygoers threatened
IT IS SUBJECT TO REVISION OR WITHDRAWAL.                     him. The jury rejected Rodriguez’s claim after a two-
                   OPINION                                   week trial during which it heard the testimony of
           Court of Appeals of Texas,                        numerous witnesses and observed an audio and video
               Houston (1st Dist.                            recording of the incident that Rodriguez captured on his
                                                             video camera.
            Raul Rodriguez, Appellant
                         v.
           The State of Texas, Appellee
 NO. 01–12–00688–CR | Opinion issued December                The video recording
                     18, 2014                                Much of the video recording consists of Rodriguez
                                                             filming the party from across the street, where he was
On Appeal from the 178th District Court, Harris              standing at the side of the road, commenting about the
County, Texas, Trial Court Cause No. 1348372                 noise level, and shining a flashlight in the direction of the
                                                             party.
Attorneys and Law Firms
Neal Davis, Bill Stradley, Jonathan Landers, of counsel,
                                                             About fifteen minutes into the recording, James Storm,
Stradley, Davis & Reynal LLP, Houston, TX, for
                                                             Danaher’s father-in-law, approached Rodriguez in a
Appellant.
                                                             truck.1 Storm and Rodriguez argued about the noise level
Devon Anderson, District Attorney, Clinton A. Morgan,        and, eventually, a few partygoers, including Danaher,
Assistant District Attorney, Houston, TX, for State.         approached them.

Panel consists of Chief Justice Radack and Justices          1
                                                                    Danaher and his family lived in the home, which was
Massengale and Huddle.                                              owned by Storm.



                                                             As Danaher approached, Rodriguez said, “You need to
                                                             stop right there. Don’t come any closer, please.” Danaher
                       OPINION
                                                             continued walking towards Rodriguez and responded, “I,
Rebeca Huddle, Justice                                       you’re telling me what to do?” Storm added, “Don’t tell
*1 A jury convicted Appellant Raul Rodriguez of murder       us to stop coming close to you.”
and sentenced him to 40 years’ confinement, rejecting his
claim that he shot his neighbor, Kelly Danaher, in self-     With Danaher still approaching, and two other partygoers
defense. Rodriguez and the State agree that the trial        now nearby, Rodriguez said, “I’m telling you, I’m telling
court’s charge included erroneous instructions regarding a   you to stop. I said stop right now, or I will shoot you!
qualification on self-defense, but they disagree about       Stop! Get back!” A partygoer yelled, “Back up Kelly” and
whether reversal is warranted. We conclude that it is, and   Rodriguez repeated, “Get back!” Danaher can be seen
we reverse and remand for a new trial.                       backing away from Rodriguez with his hands up, saying
                                                             “I ain’t got nothing.” Rodriguez responded, “Y’all are
                                                             drunk. Get away from me.”

                                                             Danaher moved across the street from Rodriguez, where
                      Background                             other partygoers had gathered and then asked Rodriguez,
In the early morning of May 2, 2010, Harris County           “You pulled a gun on me?” Rodriguez acknowledged that
police responded to reports of a weapons disturbance in a    he had, adding “I told you to stop.” Then, from opposite
rural neighborhood. Upon arriving at the scene, they         sides of the road, Danaher and Rodriguez continued
discovered that the complainant, Danaher, had been shot      arguing about why Rodriguez drew the gun, while Storm

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     1
Rodriguez v. State, --- S.W.3d ---- (2014)
2014 WL 7205226

told the partygoers to call the police:                         my life.” Storm challenged Rodriguez to a fist fight,
                                                                saying, “You drop the gun and let’s go ahead and duke it
  Danaher: I haven’t done nothing to you.                       out mother f__er.”As the exchange continued, Rodriguez,
                                                                still on the phone, told the dispatcher, “Listen. Now
  Rodriguez: My life is in danger. You got weapons on           they’re wanting to kick my ass. And now they’re calling
  you.                                                          me mother f__er and they want to kick my ass and all this
                                                                other stuff.”
  Danaher: Your life’s in danger?
                                                                The video depicts another partygoer starting to cross the
  Rodriguez: Stay away from me. You’re over here
                                                                street toward Rodriguez. Danaher stopped him, saying,
  cussing at me and hollering.
                                                                “Hey, hey, hey, Ricky.... No, no, no, no. This dude is a
  ...                                                           f__ing idiot, he will shoot you. He’s an idiot.”

  *2 Rodriguez: Get away from me. Keep it down. I got           Meanwhile,      Rodriguez    continued     talking    to   the
  everything videotaped.                                        dispatcher:

  Storm: Yeah, call the cops on this jack-off. He’s down                      I’ve got about 15 people here,
  here out in the middle of the street with a gun.                            they’re wanting to kick my ass.
                                                                              They want to beat me down. I had
  Rodriguez: Yeah, I told you to stop. I asked you to                         to draw my weapon to stop them to
  stop.                                                                       keep them from coming to me. I
                                                                              felt my life was in danger, I drew
  Danaher: And what happened? I stopped.                                      my weapon and then they stopped.
                                                                              I told them to get back. I told them
  Rodriguez: No, you stopped after I drew my weapon.                          to just to turn it down and then,
                                                                              they started cussing, saying we’re
  Danaher: And I pulled back.
                                                                              going to kick his you know, f’ing
  Rodriguez: You stopped after I drew my weapon. I                            ass and all this other stuff, calling
  asked you to stop and get back.... I asked you to turn                      all kinds of names and everything
  this crap down.                                                             cuz I’m, and I says look, I’m
                                                                              videotaping all this right now....
Rodriguez and Danaher continued arguing from opposite                         And I mean, I’m scared to death
sides of the road about the volume of the music, and                          here.
Rodriguez called the police, to whom he admitted having
drawn his gun, and asserted that he was in fear for his life:   Storm told Rodriguez, “I tell you what pal, you pulled a
                                                                gun on the wrong mother f__er, ok? ... You remember
  Yes, my name is Raul Rodriguez. I called again. I had         that.” Storm then drove his truck up the driveway toward
  to draw my weapon on somebody because I had, I told           the house.
  them to stop. They were drunk, they coming at me. I
  told them to stop. They kept coming and I drew my             Danaher continued arguing with Rodriguez: “You’re
  weapon. Then they stopped, I put my weapon up but             gonna flash your God damn gun. You’re gonna flash your
  now they’re saying I’m sitting there waving my gun            gun?” Danaher again began walking toward Rodriguez,
  and everything and I’m not. I’m videotaping everything        but was stopped by Wilcox, who held him back, saying,
  right now....                                                 “No, no, no.”

  You know, it’s just me against everybody. I’ve got,           *3 Rodriguez told the dispatcher, “Ok. They’re going to
  I’ve got ... Ah look, there’s about 15 people here. Look,     escalate this.... They’re going to the house to get
  I’m in fear for my life right now. I’m in very ... That’s     something to shoot me with.” As Storm drove toward the
  why I drew my weapon. I’m in fear for my life. Please         house, Rodriguez said, “Ok look, I’m going to defend
  help me now.... They’re going to kill me.                     myself.... I have to defend myself. I’m gonna have to
                                                                defend myself.” After hearing a loud bang from up the
Storm then initiated another exchange with Rodriguez.           driveway, Rodriguez exclaimed, “Oh s__t.”
Storm said that Rodriguez would go to jail for drawing his
gun, and Rodriguez again asserted “well, I was in fear for      The video recording became dark, but a partygoer can be

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Rodriguez v. State, --- S.W.3d ---- (2014)
2014 WL 7205226

heard yelling, “Don’t even do it. Brandon, Brandon, don’t        Rodriguez draw the gun. On cross-examination, Tyler
do it.” Another voice said, “This is bulls__t. You don’t         admitted that after he watched the video, he realized that
pull a gun on me.” Rodriguez pleaded with the dispatcher         Danaher was in the road when Rodriguez first drew his
to help, asserting that the partygoers were going to try to      gun. According to Tyler, Rodriguez put the gun down
kill him:                                                        when Danaher backed off, but Tyler did not see where
                                                                 Rodriguez put the gun.
             It’s about to get out of hand, sir.
             Please help me. Please help me sir.                 Tyler testified that no one was talking about rushing
             My life is in danger now. He’s                      Rodriguez or taking the gun from him, but he
             about to, he says he’s about to go in               acknowledged that in the moments before Rodriguez
             the house, he’s gonna be more than                  fired, Johnson walked towards Rodriguez at a “pretty
             equal than me. Now I’m standing                     rushed pace,” “cackling and laughing with his arms
             my ground here. Now these people                    waving in the air, like he thought it was funny, being
             are gonna try and kill me.                          goofy for the camera, and then [Danaher] followed
                                                                 immediately behind him.” According to Tyler, Danaher
Toward the end of the recording, the partygoers continued        moved toward Rodriguez to try to stop Johnson, and Tyler
arguing with Rodriguez. Danaher again asked, “You pull           moved forward to pull Danaher back, but Danaher had
a f__ing gun on me at my house?”Wilcox then interjected,         already been shot.
saying, “You got a gun in your f__ing ... you got a gun?...
What are you, hopped up on coke?” Danaher warned                 *4 Tyler testified that when the shots were fired, he was
Wilcox, “No, no, no, he’s videoing us,” and Wilcox               still standing at the edge of Storm’s driveway, and
responds, “I know he is.” Danaher said, “Mother f__er            Danaher and Johnson were “maybe a step and a half, two
pulled a gun on me.”                                             steps into the street,” but neither had crossed the center
                                                                 line on the road. Tyler acknowledged that in his statement
In the final moments of the recording, Rodriguez told the        to police, he said that Johnson “kind of ran to [Rodriguez]
dispatcher, “Look, I’m not losing to these people any            to apprehend him and take [the gun] from him.”
more. I’m just gonna just tell them to stay back. They’re
drunk. They’re swearing.” Then a partygoer later
identified as Ricky Johnson moved toward Rodriguez and
yelled, “Ha ha ha!” Rodriguez dropped the camera, fired          b. Marshall Stetson
his gun and yelled, “God dang it!”                               Stetson, who is Danaher’s wife’s cousin, testified that as
                                                                 soon as he and Danaher walked out to the street,
                                                                 Rodriguez drew his gun and told them to get back. He
                                                                 testified that they were not in the street, but in the middle
Testimony of partygoers                                          of the driveway, when Rodriguez first drew the gun.
Five partygoers testified at trial. In general, they testified
that as the party was winding down, a few of them noticed        Stetson testified that when they approached, he could
a flashlight on the road and walked to the end of the            “immediately see” that Rodriguez had a gun on his left
driveway, where they discovered Storm and Rodriguez              side. But he also testified that “when he pulled it straight
arguing. Only a few partygoers were present when                 out on us, that’s the first time I seen it in the hand. He was
Rodriguez first drew, then put away, his handgun, but            pulling it out.” According to Stetson, Rodriguez pulled
multiple partygoers arrived by the time Rodriguez fired.         the gun from a holster on the outside of his pants, he did
The partygoers acknowledged that Johnson had stepped             not see him move any clothing before drawing the
into the road, waved his arms, and laughed loudly in the         weapon out, and the gun was “not concealed” and was
seconds before Rodriguez fired. But they maintained that         “outside his shirt.”
neither Johnson nor anyone else crossed the center line of
the road before Rodriguez fired.                                 Stetson did not remember Johnson laughing in the
                                                                 moments before Rodriguez fired, but he was about an
                                                                 arms-length behind Johnson, on the phone with the police,
                                                                 when Johnson took “two steps” toward Rodriguez and the
a. James Tyler                                                   shooting began. Stetson grabbed for Johnson’s shirt, but
Tyler, Danaher’s best friend, testified that Danaher had         Johnson fell on the other side of the street, where
not yet stepped into the road when Rodriguez first drew          Rodriguez was standing. According to Stetson, Johnson
his gun, but Tyler acknowledged that he did not see              had not crossed over the center line of the road and was
                                                                 still 10 to 12 feet from Rodriguez when Rodriguez fired.
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
Rodriguez v. State, --- S.W.3d ---- (2014)
2014 WL 7205226

Stetson ran towards Rodriguez, grabbed for the gun and       front door, he heard three gunshots, and turned and ran
was himself shot in the buttocks. He struggled with          back towards the road. Storm denied that he was going in
Rodriguez until Wilcox and Storm came to help.               the house to get a gun.

On cross-examination, Stetson admitted that he told
police in his initial statement that Johnson took it upon
himself to try to wrestle the gun away from Rodriguez        d. Ricky Johnson
and was going after Rodriguez when Rodriguez fired.          Johnson testified that he was intoxicated, and he did not
Rodriguez’s counsel cross-examined Stetson about             remember the details of the incident.2 He did not know
whether Rodriguez’s gun had been concealed:                  who had shot him, and he had no memory of anything that
                                                             happened before he was shot.
  Rodriguez’s counsel: Now, when you—when you first
  walked down that driveway and you and Kelly                2
                                                                    Johnson was placed in a sedated coma for several days
  [Danaher] came upon Raul, however far away you                    after the incident. The coma was induced with
  were from him, I believe you—in—in response to                    Propofol, which can cause amnesia.
  questioning from Ms. Logan, you said that—that the
  clothing that—that Raul had on made it so that you
  could see his weapon. Is that what you’re saying?          Johnson gave a statement 17 days after the shooting,
                                                             which contained more detail. Johnson admitted that his
  Stetson: No. I said the way he pulled his gun so quick,
                                                             statement was based on his own recollection free from
  he didn’t—
                                                             outside influences, because he had not talked to other
  Rodriguez’s counsel: And that’s—this is kind of an         witnesses at the time he gave it. In the statement, Johnson
  important point, and that’s why I’m bringing it up.        said that some people appeared to be arguing by the road,
                                                             and that he remembered a man standing in the road, but
  Stetson: All right.                                        that he did not see a gun. According to Johnson’s
                                                             statement, he was “pretty sure” that when he got to the
  Rodriguez’s counsel: I believe that you said—and           end of the driveway, the man said take two more steps
  correct me if I’m wrong. I believe you said in your        and I’ll shoot, and Johnson took two more normal steps.
  testimony earlier today, when he pulled it straight out,   But Johnson also asserted in his statement that he was 20
  it was the first that you could see it?                    or 25 yards from Rodriguez when Rodriguez fired, and
                                                             Johnson disagreed that the video indicated he was much
  Stetson: Yeah.                                             closer.

  Rodriguez’s counsel: All right. So your—your
  testimony is that the first time you saw the weapon is
  when Raul pulled it out and showed it to you?              e. Brandon Wilcox
                                                             Wilcox testified that he walked toward the road when he
  Stetson: Yeah, showed it to us.                            heard arguing and learned that someone had a gun. When
                                                             Wilcox approached the road, he only saw Rodriguez’s
                                                             flashlight and video camera, and did not know at the time
                                                             whether Rodriguez had drawn a gun.
c. James Storm
Storm, Danaher’s father-in-law, testified that around        Wilcox knew that others had called the police and
midnight, he saw someone standing in the road and            believed they were on their way. He saw a flash and a
stopped. According to Storm, when Danaher walked up          pop, and he ran behind Stetson towards Rodriguez.
and started talking to Rodriguez, Rodriguez pulled his       Stetson fell down, and Wilcox ended up on top of
gun, even though Danaher was not threatening or              Rodriguez. Wilcox did not see Johnson charge Rodriguez,
aggressive. Storm was “pissed off” when he saw               and believed he would have seen it if it happened.
Rodriguez draw a gun. Although Rodriguez was saying
he was in fear of his life, Storm “didn’t know what he       Wilcox did not recall any discussion among the
feared.”                                                     partygoers about rushing Rodriguez. He testified that
                                                             when someone on the video recording said, “Brandon,
*5 Storm eventually drove up the driveway because he         Brandon, don’t do it,” it was probably in response to
believed everyone was going to let the police handle the     Wilcox’s comment that Rodriguez “need[ed] his ass
situation. When he was walking across his porch to the
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     4
Rodriguez v. State, --- S.W.3d ---- (2014)
2014 WL 7205226

kicked.”                                                        that on the night of the party, he was on his porch around
                                                                ten minutes before midnight and could hear music playing
                                                                at Storm’s house. Ellis saw Rodriguez leaving his
                                                                property and shouting “shut it down” towards Storm’s
Testimony of officers, investigators, & medical                 house. According to Ellis, Rodriguez was waving his
personnel                                                       flashlight and walking angrily up the street. Ellis heard
Deputy J. Soto with the Harris County Sheriff’s Office          gunshots about 10 or 15 minutes later.
testified that he did not smell alcohol on Rodriguez, but
Wilcox, who had been holding down Rodriguez, smelled
of alcohol and slurred his speech. Deputy Whitlock, who
accompanied Deputy Soto, testified that partygoers were         b. Terry Hackathorn
intoxicated.                                                    Hackathorn, who lived with Ellis, testified about her
                                                                conversation with Rodriguez two months before the
Detective J. Brown of the Harris County Sheriff’s Office        shooting in which Rodriguez encouraged her to get a
testified that Rodriguez had a concealed handgun license,       concealed handgun license. She described Rodriguez as
although Brown did not recall seeing the license itself.        “very self-confident, very assured” and “excited” during
When Brown arrived at the scene, Rodriguez “still had a         the conversation:
nylon holster on his belt.” Brown testified that Rodriguez
reported taking ASA, Lisinopril, Norco, Paxil,                    He had suggested I get hand—a concealed handgun
methadone, Effexor, and Xanax, but Brown also testified           license. And I told him I didn’t want one. But he told
that he did not believe Rodriguez was intoxicated.                me it would be my benefit, because if I had a handgun
                                                                  and if I was in public anywhere, then if anybody was,
As part of the ensuing investigation, Brown and two other         you know, bothering me and if I needed to shoot
detectives watched the video recording. Brown testified           somebody, that as long as I told the authorities that I
that the initial perception of all three detectives was that      was in fear for my life and that I needed to defend
someone was attacking Rodriguez when Rodriguez                    myself, and that I believed they had weapons and I
dropped the camera and fired. Brown agreed that                   stood my ground. And so I shot the son of a bitch.
Rodriguez’s broken leg constituted serious bodily injury.
He testified that some of the partygoers smelled of               Prosecutor: And he said that you could “shoot the son
alcohol and that some marijuana was found at the party.           of a bitch”?
He also testified that Danaher’s level of intoxication was
“relatively high.”                                                Hackathorn: Yes.

                                                                  Prosecutor: Did he specifically say to you, to use the
*6 Pramod Gumpeni, an assistant medical examiner at the
                                                                  words “in fear of your life”?
Harris County Institute of Forensic Sciences, performed
Danaher’s autopsy. Danaher had two gunshot wounds,                Hackathorn: Yes.
one to the chest and one to the right leg. Gumpeni
concluded, based on the lack of stippling on Danaher’s            Prosecutor: And did it surprise you when he said this?
skin, that the gun was at least 18 to 24 inches away from
Danaher when it was fired, but he admitted that he did not        Hackathorn: No.
test Danaher’s shirt for stippling or gunpowder residue. 3
Gumpeni testified that Danaher had a blood alcohol                Prosecutor: Okay. And why not?
content of .21.
                                                                  Hackathorn: Because he always stayed up-to-date on
3                                                                 the law changes when it came to owning handguns.
       According to Gumpeni, stippling         results   when
       gunpowder particles contact the skin.


                                                                c. Pete Fornols
                                                                Fornols lived between the Danahers and Rodriguez. On
                                                                the night of the party, Rodriguez called Fornols three
Testimony of neighbors                                          times before 8:00 p.m. Rodriguez asked whether Fornols
                                                                could hear “all of the loud s__t” and whether Fornols
a. Ken Ellis
                                                                would go with Rodriguez to “put a stop to this s__t” if it
Ellis, who lived across the street from Rodriguez, testified
                                                                kept going on. Rodriguez told Fornols that he “would

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     5
Rodriguez v. State, --- S.W.3d ---- (2014)
2014 WL 7205226

have [his] back,” but Fornols “did not want to be a part of    A. Standard of Review
it.”                                                           In analyzing a jury-charge issue, our first duty is to decide
                                                               if error exists. SeeAlmanza v. State, 686 S.W.2d 157, 174
Rodriguez went to Fornols’s house around 8:30 p.m.             (Tex.Crim.App.1985) (op. on reh’g); Tottenham v. State,
According to Fornols, Rodriguez was “rambling on about         285 S.W.3d 19, 30 (Tex.App.–Houston [1st Dist.] 2009,
the noise and that ... if I would go down there with him,      pet. ref’d). Only if we find error do we then consider
that once again that he would have my back....” Fornols        whether an objection to the charge was made and analyze
testified that Rodriguez seemed “aggressive. His eyes          for harm. Tottenham, 285 S.W.3d at 30; see alsoWarner
were bulgy, and he was in a—almost like a frantic stage,       v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008)
like, you know, he was just about to pop.” Fornols             (“The failure to preserve jury-charge error is not a bar to
testified that Rodriguez had two weapons on him when he        appellate review, but rather it establishes the degree of
visited at 8:30: one handgun in the front of his pants, and    harm necessary for reversal.”).
one in the back. They were outside his t-shirt, which was
tucked in, and in “plain sight.”                               “The degree of harm necessary for reversal depends upon
                                                               whether the error was preserved.” Hutch v. State, 922
Fornols spoke to Rodriguez on the phone again after his        S.W.2d 166, 171 (Tex.Crim.App.1996). Error properly
8:30 visit, and Rodriguez was agitated that the police who     preserved by a timely objection to the charge will require
had responded to the noise complaints “didn’t do s__t.         reversal “as long as the error is not harmless.” Almanza,
They came out here, they sat and they drove off.”              686 S.W.2d at 171. The Court of Criminal Appeals has
Rodriguez returned to Fornols’s house around 10:30 p.m.        interpreted this to mean that any harm, regardless of
and asked Fornols to call the police to complain about the     degree, is sufficient to require reversal. Arline v. State,
noise. Fornols placed the call anonymously, only to try to     721 S.W.2d 348, 351 (Tex.Crim.App.1986). However,
calm Rodriguez.                                                when the charging error is not preserved “and the accused
                                                               must claim that the error was ‘fundamental,’ he will
*7 Rodriguez called Fornols again at 11:13 p.m., 12:01         obtain a reversal only if the error is so egregious and
a.m. and 12:11 a.m., but Fornols did not answer. When          created such harm that he ‘has not had a fair and impartial
Fornols heard three gunshots around 20 minutes after           trial’—in short ‘egregious harm.’ ” Almanza, 686 S.W.2d
midnight, he looked out his window into Rodriguez’s            at 171; seeNava v. State, 415 S.W.3d 289, 298
backyard to see if he was out there “shooting his gun off      (Tex.Crim.App.2013) (egregious harm “is a difficult
like he’s done a lot.”                                         standard to meet and requires a showing that the
                                                               defendants were deprived of a fair and impartial trial.”).
Fornols also testified about his interaction with Rodriguez    Fundamental errors that result in egregious harm are those
on the day before the party. Danaher had come over to          which affect “the very basis of the case,” deprive the
Fornols’s house to borrow some tools. Rodriguez arrived        defendant of a “valuable right,” or “vitally affect his
within two minutes after Danaher left and asked Fornols,       defensive theory.” Almanza, 686 S.W.2d at 172 (citations
“What did that cocksucker want?” Fornols said that             and quotations omitted).
Danaher had borrowed some tools, and Rodriguez
responded, “I wouldn’t loan that son of a b__ch sweat off      When considering whether a defendant suffered harm, the
my balls if he was dying of thirst. He’s one of the son of a   reviewing court must consider: (1) the entire jury charge;
b__ches that keep us awake at night with loud music.”          (2) the state of the evidence, including the contested
                                                               issues and weight of probative evidence; (3) the argument
                                                               of counsel; and (4) any other relevant information
                                                               revealed by the record of the trial as a whole. Id. at 171.
                                                               The reviewing court must conduct this examination of the
                         Discussion                            record to “illuminate the actual, not just theoretical, harm
Rodriguez argues that the trial court’s guilt-innocence        to the accused.” Id. at 174; seeNava, 415 S.W.3d at 298
charge erroneously abrogated his justification defense in      (record must disclose “actual rather than theoretical
that it included incorrect and confusing instructions          harm”).
regarding a qualification on self-defense. The State
concedes that there was charge error, but argues that the
errors did not harm Rodriguez because he was not entitled
to a self-defense instruction in the first instance.           B. Applicable Law
                                                               *8 Texas Penal Code Section 9.31(a) provides that a
                                                               person is justified in using force against another “when
                                                               and to the degree the actor reasonably believes the force is
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Rodriguez v. State, --- S.W.3d ---- (2014)
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immediately necessary to protect the actor against the                      pages 10–11instructed the jury to consider whether
other’s use or attempted use of unlawful force.” TEX.                       Rodriguez provoked Danaher.
PENAL CODE ANN. § 9.31(a) (West 2011). Penal Code
Section 9.31(b)(5)(A) qualifies this defense. It states that
the use of force against another is not justified “if the
                                                                     Rodriguez argues that the trial court’s instructions
actor sought an explanation from or discussion with the
                                                                     regarding the “discussion of differences” qualification
other person concerning the actor’s differences with the
                                                                     contained multiple errors. Among other things, Rodriguez
other person while the actor was carrying a weapon in
                                                                     complains that the trial court incorrectly instructed the
violation of Section 46.02.” TEX. PENAL CODE ANN. §
                                                                     jury on irrelevant provisions of Penal Code Section
9.31(b)(5)(A) (West 2011).
                                                                     46.035, which defines the offense of unlawful carrying of
                                                                     a handgun by a license holder. The State agrees that it was
A person violates Section 46.02 of the Penal Code if he
                                                                     error to include the irrelevant provisions of Section
intentionally, knowingly, or recklessly carries on or about
                                                                     46.035. We agree with the parties that the instructions
his person a handgun, illegal knife, or club if the person is
                                                                     regarding the “discussion of differences” qualification
not (1) on the person’s own premises or premises under
                                                                     were erroneous.
the person’s control; or (2) inside of or directly en route to
a motor vehicle or watercraft that is owned by the person
                                                                     The instructions appeared on page 9 of the charge. It said:
or under the person’s control. SeeTEX. PENAL CODE
ANN. § 46.02(a) (West Supp.2014). Importantly,                         You are further instructed, as part of the law of this
however, Section 46.02 does not apply to a person who                  case, and as a qualification of the law on self-defense,
“is carrying a concealed handgun and a valid license                   that the use of force by a defendant against another is
issued under Subchapter H, Chapter 411, Government                     not justified if the defendant sought an explanation
Code, to carry a concealed handgun.” TEX. PENAL                        from or discussion with the other person concerning the
CODE ANN. § 46.15(b)(6) (West Supp.2014).                              defendant’s differences with the other person while the
                                                                       defendant was failing to conceal the handgun that he
                                                                       was carrying as a concealed handgun license holder, in
                                                                       violation of the law.
C. Analysis
                                                                       *9 A person commits an offense if, while the person
1. Errors in the charge
                                                                       was a holder of a license to carry a concealed handgun,
The charge spanned 16 pages. The first three pages set
                                                                       the person intentionally failed to conceal the handgun.
forth the abstract law of murder and applied the law of
murder to the case. The next five pages set forth the                  A person commits an offense if, while the person was a
abstract law on self-defense and deadly force and applied              holder of a license to carry a concealed handgun, the
this law to the case.”4 Next came three pages of                       person carried a handgun and was intoxicated.
instructions regarding two qualifications on self-defense:
the “discussion of differences” qualification and                      “Handgun” means any firearm that is designed, made,
provocation. The balance of the charge contained general               or adapted to be fired with one hand.
instructions and an extraneous offense instruction.
                                                                       If you find from the evidence beyond a reasonable
4
       One paragraph on page 4 instructed the jury not to              doubt that the defendant, Raul Rodriguez, did then and
       consider whether Rodriguez failed to retreat, noting that       there on May 2 nd, 2010, fail to conceal a handgun in
       one “who has not provoked the person against whom               violation of the law stated above, before seeking an
       deadly force is used, and who is not engaged in                 explanation from or discussion with the other person
       criminal activity at the time the deadly force is used is       concerning the defendant’s differences with the other
       not required to retreat before using deadly force.” The         person, then you will find against the defendant on the
       parties devote little attention to this instruction, but we     issue of self-defense.
       find it noteworthy insofar as it, implicitly if not
       explicitly, instructs the jury that Rodriguez did not
       provoke Danaher and that Rodriguez was not engaged            The first paragraph tracks much of Section 9.31(b)(5)(A),
       in criminal activity at the time he used deadly force         but modifies its final clause. The purpose of the
       against Danaher. This was confusing because later             modification was to account for the fact that Rodriguez
       portions of the charge posed those very questions: page       was carrying a handgun “as a concealed handgun license
       9 instructed the jury to consider whether Rodriguez           holder” to whom Section 46.02 would not apply, provided
       committed an offense by intentionally failing to conceal      the handgun was concealed. SeeTEX. PENAL CODE
       his handgun or by carrying it while intoxicated, and          ANN. § 46.15(b)(6) (noting that section 46.02 does not
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Rodriguez v. State, --- S.W.3d ---- (2014)
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apply to a person who “is carrying a concealed handgun               arguing that the jury could not have been misled in this
and a valid license”). The first paragraph ends with the             manner because the paragraph refers expressly to May 2,
phrase “in violation of the law,” which is superfluous and           while the visit to Fornols took place at 8:30 p.m. on May
confusing in light of the two paragraphs that follow.                1.

The second and third paragraphs on page 9 are based on               The final paragraph on page 9 expressly referred to failing
Section 46.035 of the Penal Code, which defines the                  to conceal a handgun on May 2nd, 2010. Because well-
offense of unlawful carrying of a handgun by a license               established law requires us to presume, in the absence of
holder. The second paragraph is based on subsection (a),             evidence to the contrary, that the jury followed the trial
while paragraph three was based on subsection (d).                   court’s instructions, we do not presume that the jury
SeeTEX. PENAL CODE ANN. § 46.035(a) (“A license                      wrongly believed that it could convict based on
holder commits an offense if the license holder carries a            Rodriguez’s failure to conceal his handguns at Fornols’s
handgun on or about the license holder’s person under the            home at 8:30 p.m. on May 1. Reeves v. State, 420 S.W.3d
authority of Subchapter H, Chapter 411, Government                   812, 818 (Tex.Crim.App.2013) (generally, in the absence
Code, and intentionally displays the handgun in plain                of evidence to the contrary, appellate court assumes that
view of another person in a public place.”), (d) (“A                 jury followed charge instructions).
license holder commits an offense if, while intoxicated,
the license holder carries a handgun under the authority of          We do, however, conclude that the use of “before” in the
Subchapter H, Chapter 411, Government Code, regardless               final paragraph on page 9 is, at a minimum, confusing in
of whether the handgun is concealed.”) (West                         light of the use of “while” in the first and second
Supp.2014). The inclusion of both paragraphs was error               paragraphs. If the jury believed that Rodriguez acted in
because, as the State concedes, “[t]he commission of th[e]           self-defense, the applicability of Section 9.31(b)(5)(A)
offense [of unlawful carrying of a handgun by a license              turned on whether Rodriguez’s handgun was concealed
holder] ... does not alter one’s ability to invoke the right to      from the time he sought the discussion of differences until
self defense....”5 It is a violation of Section 46.02, not           the moment the jury determined he was justified in using
Section 46.035, that may abrogate a self-defense claim.              force. Thus, it was critical for the jury to determine w hen
SeeTEX. PENAL CODE ANN. § 9.31(b)(5)(A)                              during the sequence of events Rodriguez failed to conceal
(discussion of differences qualification on self-defense             his handgun.
applies if the actor was carrying a weapon in violation of
Section 46.02). In short, we agree with the parties that the         The charge fell short of making that clear. The first
trial court erred in submitting the second and third                 paragraph instructed the jury to consider whether
paragraphs on page 9.                                                Rodriguez sought a discussion of differences while failing
                                                                     to conceal the handgun he was carrying as a concealed
5
        Indeed, Section 46.035(h) states that it is a defense to a   handgun license holder; the second instructed it to
        violation of Section 46.035(a) “that the actor, at the       consider whether Rodriguez failed to conceal while he
        time of the offense, displayed the handgun under             was a holder of a license to carry a concealed handgun;
        circumstances in which the actor would have been             and the final paragraph instructed it to consider whether
        justified in the use of force or deadly force under          Rodriguez failed to conceal before seeking a discussion of
        Chapter 9.” TEX. PENAL CODE ANN. § 46.035(h)                 differences. This is far from “the way instructions should
        (West Supp.2014).                                            be—clear, concise, and to the point.” Reeves, 420 S.W.3d
                                                                     at 817, 818 (function of charge is not merely to avoid
                                                                     misleading but to lead and to prevent confusion).
*10 Rodriguez argues that the use in the final paragraph
on page 9 of the word “before” was also erroneous.
Section 9.31(b)(5)(A) applies if the actor sought a
discussion of differences “while... carrying a weapon in             2. Did Rodriguez preserve error?
violation of Section 46.02.” SeeTEX. PENAL CODE                      Having found error in the charge, we next consider
ANN. § 9.31(b)(5)(A) (emphasis added). In light of the               preservation. Tottenham, 285 S.W.3d at 30. The record
evidence that Rodriguez’s handguns were not concealed                reflects that Rodriguez lodged the following objection to
when he visited Fornols a few hours before the shooting,             page 9:
Rodriguez argues that the application paragraph’s use of
“before” could have caused the jury to reject Rodriguez’s              [B]asically, Judge, I think this is improper comment on
self-defense claim based on his failure to conceal his                 the weight of the evidence. Also, I don’t think the
handguns while at Fornols’s home. The State disagrees,                 evidence supports this charge in this case.


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Rodriguez v. State, --- S.W.3d ---- (2014)
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  Specifically, there’s absolutely no evidence that—or          instruction, that’s their decision to make.
  credible evidence that Raul Rodriguez failed to conceal
  his firearm or that he was intoxicated.                       ....

  All right. So let me take both of those if I can, one-by-     [I]t tracks the original charge instruction. Tracks the
  one.                                                          statute and since there’s some evidence that in our
                                                                particular case, the defendant has a concealed handgun
  Failure to conceal a handgun. There was some                  license. That’s why we clarified it. Because if you just
  testimony from Pete—Peter Fornols.... And he testified        give it to the jury in violation of the law, they need to
  at some point early in the evening. This is before the        be instructed on what that law is.
  shooting ever occurred or Raul ever went over next
  door. That Raul Rodriguez had two handguns in plain         The trial court then made the following ruling:
  view. One was in the front center waistband, one was to
  his back center waistband.                                    Well, I heard the testimony. And Fornols is one thing,
                                                                statute is another. And he clearly said, “I—first time I
  And—and so that has no relevance as to the time of the        saw it is when he pulled it out.” But anyway, be that as
  shooting, if Raul was legally carrying a firearm. In          it may. He said other things too.
  other words, at the time of self-defense when he shot
  the weapon, was he unlawfully displaying a firearm,           So, the issue’s been raised and y’all are just going to
  that would negate that. And so that testimony doesn’t         have to argue the fact question. But I think the issue’s
  really relate to that at all.                                 been raised, so I’m going to allow that. Objection’s
                                                                overruled.
  *11 The only other testimony was, Marshall Stetson
  said something on direct examination about how Raul         Error preservation “is not an inflexible concept.” Thomas
  Rodriguez had a firearm and it was visible. And it was      v. State, 408 S.W.3d 877, 884 (Tex.Crim.App.2013).
  a little unclear what he said.                              “[A]ll a party has to do to avoid the forfeiture of a
                                                              complaint on appeal is to let the trial judge know what he
  But Bill Stradley cross-examined him. And he clearly        wants, why he thinks himself entitled to it, and to do so
  said, based on my recollection, that what he meant was,     clearly enough for the judge to understand him at a time
  he saw the firearm when Raul Rodriguez had actually         when the trial court is in a proper position to do
  drawn it on Kelly Danaher. And so, therefore, I don’t       something about it.” Id. (quoting Lankston v. State, 827
  think there’s any credible evidence that Raul—and the       S.W.2d 907, 909 (Tex.Crim.App.1992)).
  State’s theory has never been that he didn’t conceal the
  handgun.                                                    Here, Rodriguez argued that page 9 should not be
                                                              submitted to the jury at all, because the evidence did not
  And so with that, I don’t think there’s evidence that       support the submission, and because the instructions
  supports the instruction. And I also think it’s an          constituted an improper comment on the weight of the
  improper comment on the weight of the evidence.             evidence. He argued that the instructions would allow the
                                                              jury to incorrectly reject his claim of self-defense based
The State argued in favor of submitting page 9 as it was      on testimony regarding his alleged failure to conceal
ultimately submitted:                                         during his visit to Fornols’s house at 8:30 p.m.
  In Section 931(b), Number 5A, it talks about carrying a     The State responded that the charge should include the
  weapon in violation of the law. In order to explain what    violation of law instructions contained in the second and
  violation of the law is and tracks the statute, that’s      third paragraphs. It argued that Pete Fornols’s testimony
  where we proposed unlawfully carrying a weapon by a         to the effect that Rodriguez’s handguns were not
  concealed handgun license holder.                           concealed hours before the shooting was at least some
                                                              evidence that supported submission of the instructions it
  And the Court, as you know, is required to put an
                                                              now concedes were erroneous. The trial court agreed with
  instruction in, if there’s some evidence, whether
                                                              the State and overruled the objection. Although Rodriguez
  believable or not. And there was evidence by Marshall
                                                              did not parse the instruction and detail each of the errors
  Stetson and by Pete Fornols, that indicated the
                                                              in it, we conclude that his objection was sufficient to
  defendant was carrying a weapon that was visible.
                                                              preserve the error he complains of on appeal. SeeClark v.
  So if the jury, who is going to be the trier of fact,       State, 365 S.W.3d 333, 339 (Tex.Crim.App.2012) (noting
  determines that they’re in violation based upon the         that issue preserved without having been explicitly stated

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Rodriguez v. State, --- S.W.3d ---- (2014)
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if “there have been statements or actions on the record        benefitted Rodriguez and increased the State’s burden. It
that clearly indicate what the judge and opposing counsel      argues that the jury could have believed that it must find
understood the argument to be”); Lankston, 827 S.W.2d at       for Rodriguez on the discussion of differences
909 (in issue-preservation context, there are “no technical    qualification unless the State showed that Rodriguez
considerations or form of words to be used”); see              intentionally failed to conceal and was intoxicated. This is
alsoState v. Rosseau, 396 S.W.3d 550, 555                      a plausible interpretation of the charge, and it could be the
(Tex.Crim.App.2013) (although defendant’s challenge            one the jury adopted. While we cannot know how the jury
“could have been more clearly presented,” “magic               interpreted page 9, we know for certain—and the State
language” was not required).                                   concedes—that it was confusing. This is enough to weigh
                                                               in favor of finding some harm. SeeReeves, 420 S.W.3d at
                                                               818 (function of charge is to “prevent confusion”).

3. Were the errors harmless?
*12 Because Rodriguez preserved his complaint, we must
reverse unless the error is harmless. SeeAlmanza, 686          b. The evidence
S.W.2d at 171; see alsoArline, 721 S.W.2d at 351 (any          The second Almanza factor likewise weighs in favor of
harm, regardless of degree, is sufficient to require           finding some harm. Rodriguez conceded that he shot
reversal). To gauge harm, we review (1) the entire jury        Danaher, and the evidence regarding Rodriguez’s only
charge; (2) the state of the evidence, including the           defense, self-defense, was conflicting. On the one hand,
contested issues and weight of probative evidence; (3) the     the partygoers uniformly testified that they never got
argument of counsel; and (4) any other relevant                close to Rodriguez, emphasizing that they did not cross
information revealed by the record of the trial as a whole.    the center line onto Rodriguez’s side of the street before
SeeAlmanza, 686 S.W.2d at 171.                                 he began firing. The State also adduced evidence that
                                                               Rodriguez told Hackathorn that, with the benefit of a
                                                               concealed handgun license, one could shoot somebody
                                                               and get away with it by telling the authorities that she was
a. The entire charge                                           in fear for her life and needed to defend herself. This
Rodriguez argues that the errors on Page 9 harmed him in       evidence supported the State’s theory that Rodriguez
two ways: (1) paragraphs two and three allowed the jury        manufactured his self-defense claim.
to conclude that either Rodriguez’s intoxication or his
failure to conceal a handgun, alone, would render his use      On the other hand, the evidence showed that before
of force unjustified; and (2) the erroneous use of “before”    Rodriguez first drew his gun, Danaher, at least, had
in the final paragraph allowed the jury to conclude that his   crossed the center line and approached Rodriguez, that
use of force was not justified because he failed to conceal    Storm and multiple partygoers threatened Rodriguez with
his handguns earlier in the evening, while talking with        bodily injury, and that Rodriguez in fact sustained serious
Fornols.                                                       bodily injury, a broken leg. The evidence also showed
                                                               that, immediately before Rodriguez fired, Johnson
As discussed above, the inclusion of the phrase “in            suddenly and loudly charged Rodriguez, with his friends
violation of the law” in the first paragraph, followed by      following closely behind. Both Johnson and Stetson fell
paragraphs two and three, which have no place in the           on the side of the street where Rodriguez had been
instruction, permitted the jury to find against Rodriguez      standing, and the forensic testimony showed that
on self-defense if, during the discussion of differences, he   Danaher, who was behind Johnson, could have been as
either (1) “intentionally failed to conceal” the handgun or    close as 18 inches to Rodriguez when he was shot.
(2) was intoxicated. The jury heard Rodriguez admit on
the video recording that he intentionally drew his handgun     *13 Given the conflicting evidence, we conclude that
and, thus, “intentionally failed to conceal” it during the     conviction was not a foregone conclusion absent the
altercation. Under the trial court’s charge, that bare fact    charge error, and that this factor supports reversal. See,
was sufficient to abrogate Rodriguez’s self-defense claim,     e.g.,Burd v. State, 404 S.W.3d 64, 74–75 (Tex.App.–
regardless of whether the jury believed Rodriguez was          Houston [1st Dist.] 2013, no pet.)(finding harm sufficient
justified in using deadly force. Nothing in the charge         to warrant reversal where self-defense was only issue in
ameliorated this problem. Indeed, the final paragraph on       case, charge contained error regarding self-defense, and
page 9 exacerbated it by referring the jury back to the        evidence regarding events that led to shooting conflicted).
violations of the law “stated above.”

The State contends that the errors on page 9 actually
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Rodriguez v. State, --- S.W.3d ---- (2014)
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c. Counsel’s argument                                           of the handgun’s concealment, which was erroneously
The State began its closing by arguing that Rodriguez           addressed in the charge. The third factor thus weighs in
believed that his concealed handgun license conferred           favor of finding some harm.
special privileges and that Rodriguez lied about fearing
for his life. The State then told the jury that Rodriguez
had no right to self-defense because he armed himself,
sought an explanation, and did not retreat:                     d. Other information in the record
                                                                We find two jury questions also weigh in favor of finding
  Then starting on Page 9 of your charge, will be a             some harm. During deliberations, the jury asked whether
  portion that deals with arming yourself and seeking the       a holster had been “taken into evidence.” Detective
  difficulty, or seeking an explanation for the difficulty.     Brown had testified that Rodriguez had a holster on his
                                                                belt at the time of the shooting, and Stetson testified that
  This is one of the two factors that you find in this          Rodriguez drew his gun from a holster. However, Fornols
  charge that takes away this defendant’s right to self-        testified that, when Rodriguez visited him four hours
  defense. Because he armed himself, because he went            earlier, Rodriguez’s two guns were in his waistband, and
  down the road to seek an explanation, because he did          did not mention a holster. The question suggests that the
  not abandon his efforts to get an answer out of Kelly         jury reached and was focused on the issue of
  Danaher, he has no right to self-defense.                     concealment.

The State thus advanced an incorrect, or at least               *14 The jury also asked to see Rodriguez’s medical
incomplete, argument regarding the limitations on               records. Rodriguez argues that this demonstrates the jury
Rodriguez’s claim of self-defense. This argument also           was focused on the question of his intoxication, an issue
contradicted the instruction on page 4 to the effect that the   wrongly submitted in the third paragraph of page 9. The
jury should not consider Rodriguez’s failure to retreat.        State points out that the jury may have wanted the records
                                                                to verify Rodriguez’s claimed disability. We cannot and
Defense counsel argued in closing that the handgun was          need not discern the reason for the jury’s inquiry; it is
not visible before Rodriguez drew it. He said: “There’s         enough that the jury asked for evidence that related to the
absolutely no credible evidence in this case that               erroneous intoxication instruction. See, e.g.,Villarreal v.
[Rodriguez] walked over there with a gun on his hip that        State, 205 S.W.3d 103, 110 (Tex.App.–Texarkana 2006,
people saw and then he pulled it on Kelly Danaher.... Raul      pet. dism’d) (jury note was evidence that jury considered
Rodriguez is in the street and everything he’s done is          erroneous instruction and supported finding of egregious
legal. It’s a public road. He has his gun concealed. He has     harm).
a concealed handgun license.”
                                                                Although all of the Almanza factors point toward the
Following the defense closing, the State again argued the       conclusion that the charge errors harmed Rodriguez, the
issue of concealment:                                           State argues for the first time on appeal that Rodriguez
                                                                was not entitled to a self-defense instruction at all.
  They brought up the fact that Marshall Stetson made           Therefore, the State’s argument goes, the errors in the
  comments during closing—or excuse me, on cross, that          qualification instructions could not have caused harm.
  he couldn’t see a weapon. Well, you’ll remember on            Specifically, the State contends: (1) Rodriguez does not
  direct, Donna asked him, “He pulled it straight out. It’s     dispute that he sought a discussion of differences while
  the first time I seen it in his hand.” “Could you tell        carrying a weapon; and (2) there is no evidence that
  whether it was one of those holsters that goes inside         Rodriguez was carrying a concealed handgun or a
  your pants, on the outside or the inside?” “It was on the     concealed handgun license as provided by Section
  outside.”                                                     46.15(b)(6); therefore, Section 9.31(b)(5)(A) conclusively
                                                                applied to prohibit submission of self-defense.
  We know from the evidence that he didn’t pull his shirt
  back. We know that he pulled the gun right out. We
                                                                The State’s argument raises the question of whether it was
  know that right there, use your common sense, he
                                                                Rodriguez’s burden to raise evidence demonstrating that
  didn’t go down there with a jacket on in May. He went
                                                                Section 46.15(b)(6) applied. While it is well-settled that a
  down there as a person who knew exactly what he was
                                                                defendant bears the burden of adducing some evidence to
  going to do.
                                                                raise a defense, see, e.g.,Zuliani v. State, 97 S.W.3d 589,
                                                                594 (Tex.Crim.App.2003), few cases address the burden
In short, the State, in closing, misstated the law regarding
                                                                to adduce evidence to raise an exception to a qualification
the qualification on self-defense and highlighted the issue
                                                                of a defense such as Section 46.15(b)(6).
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Rodriguez v. State, --- S.W.3d ---- (2014)
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In post-submission briefing, the parties pointed us to              6
                                                                            The State also relies upon Davis v. State, 276 S.W.3d
Barron v. State, No. 05–08–00637–CR, 2010 WL                                491 (Tex.App.–Waco 2008, pet. ref’d), and Williams v.
1294078 (Tex.App.–Dallas Apr. 6, 2010, pet. ref’d). In                      State, 35 S.W.3d 783 (Tex.App.–Beaumont 2001, pet.
Barron, the court of appeals held that the trial court                      ref’d), to support its argument that self-defense should
properly denied a self-defense instruction. Barron, 2010                    not have been submitted. But these cases, like Barron,
WL 1294078, at *3. But in Barron, the evidence                              are inapposite, because in each, the State proved as a
established as a matter of law that Barron sought an                        matter of law that the defendant could not lawfully
explanation or discussion of differences with the                           carry a gun.
complainant while illegally carrying a handgun; there was
“no evidence presented at trial to establish that [Barron]
qualified for the traveling exception or that he held a             *15 In sum, the trial court’s erroneous charge caused
license to carry the handgun used in the shooting.” Id.             Rodriguez some harm because Rodriguez conceded that
Thus, the court concluded that there was no fact issue              he shot Danaher, and his claim of self-defense was thus
raised regarding Section 9.31(b)(5)(A); Barron was not              the focus of, and, indeed, “the very basis of the case.”
justified in using force as a matter of law. Id.                    Almanza, 686 S.W.2d at 172. The errors were not cured
                                                                    by other instructions or closing argument, the evidence on
This case is different. First, the State introduced                 self-defense was conflicting, closing argument
Rodriguez’s concealed handgun license records and                   highlighted the issues addressed in the erroneous
emphasized to the jury that Rodriguez was a concealed               instructions, and questions from the jury demonstrated
handgun license holder. Second, the State adduced                   that it focused on the erroneous instructions during
evidence regarding whether Rodriguez’s gun was                      deliberations. SeeAlmanza, 686 S.W.2d at 171; see
concealed. This mattered only if Rodriguez was licensed             alsoArline, 721 S.W.2d at 351 (any harm, regardless of
to carry the gun and the jury was being asked to decide             degree, is sufficient to require reversal).
whether the handgun was properly concealed. Third, the
State proposed the jury instruction incorporating the               We sustain Rodriguez’s first issue. Because we have
Section 46.15(b)(6) exception, and the trial court obliged.         found that the guilt-innocence charge error regarding the
Rodriguez could have and would have tried the case                  discussion of differences qualification on self-defense
differently (i.e., by offering additional evidence to raise         warrants reversal, we need not consider Rodriguez’s
Section 46.15(b)(6)) if the State had not conducted itself          remaining issues.
as if it agreed that a fact issue concerning Section
46.15(b)(6) had been raised. Because the State conducted
itself as it did, it is estopped from reversing course now.
See, e.g.,Reed v. State, 14 S.W.3d 438, 442 (Tex.App.–
Houston [14th Dist.] 2000, pet. ref’d) (where State                                       Conclusion
requested defendant undergo psychiatric examination,                We conclude that the charge error related to self-defense,
State was estopped from claiming on appeal that there               Rodriguez’s sole defense, was not harmless. Therefore,
was no evidence to show a bona fide doubt as to                     we reverse the judgment of the trial court and remand for
defendant’s competence). We therefore reject the State’s            a new trial.
argument that Rodriguez suffered no harm because he
was not entitled to a self-defense instruction in the first
instance.6 See id.
 End of Document                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              12
