             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-0907-17



                  CHRISTOPHER ERNEST BRAUGHTON, Appellant

                                                 v.

                                   THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIRST COURT OF APPEALS
                          HARRIS COUNTY

               K ELLER, P.J., filed a dissenting opinion in which W ALKER, J., joined.

       Appellant confronted a man who had physically assaulted his father. In a heated situation

that lasted mere moments, Appellant fired a single shot at the assailant, thereby killing him. I would

hold that the State’s evidence was not sufficient beyond a reasonable doubt to negate Appellant’s

claim of defense-of-third-persons. I base my conclusion partly on the State’s failure to rebut a

defensive presumption that appears in the deadly-force statute.

                               Self-Defense and Defense of Others

       The Penal Code allows a person to defend himself or a third person against the attack of
                                                                      BRAUGHTON DISSENT — 2

another if the actor meets certain requirements.1 More is required of a person who uses deadly

force.2 One situation that justifies the use of deadly force is when the actor responds to prevent the

commission of a serious crime such as murder or robbery.3 A person is justified in using deadly

force in this situation “when and to the degree the actor reasonably believes the deadly force is

immediately necessary . . . to prevent the other’s imminent commission of” the crime in question.4

The phrase “reasonably believes” signifies both that the actor actually believes and that the actor’s

actual belief is reasonable.5 Defense of a third person is a “defense,”6 which the State is required to

disprove beyond a reasonable doubt.7

                                   Presumption of Reasonableness

        One aspect of the defense that bears discussion is the presumption it includes. An actor’s

belief that deadly force was immediately necessary to prevent one of the above crimes is presumed

to be reasonable if the actor:

        (1) knew or had reason to believe that the person against whom the deadly force was


        1
            See TEX . PENAL CODE §§ 9.31, 9.33.
        2
            Id. § 9.32.
       3
            Id. § 9.32(a)(2)(B). The statute lists the crimes that qualify. Id.
        4
            Id.
       5
          See also McGrew v. State, 128 Tex. Crim. 238, 247 (1935) (“[T]o justify the appellant in
killing the deceased under the circumstances detailed by him, it was necessary that appellant have
actual belief in the existence of the danger of losing his life. The belief must be founded upon
reasonable ground, viewed from the appellant's standpoint.”).
       6
           TEX . PENAL CODE § 9.02 (“It is a defense to prosecution that the conduct in question is
justified under this chapter.”)
       7
          Id. § 2.03(d) (“If the issue of the existence of a defense is submitted to the jury, the court
shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.”).
                                                                      BRAUGHTON DISSENT — 3

        used . . . was committing or attempting to commit [one of the above crimes],

        (2) did not provoke the person against whom the force was used; and

        (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor
        [traffic offense] at the time the force was used.8

If there is sufficient evidence giving rise to the presumption, the jury must be instructed on it.9 When

a jury is instructed on the presumption, the jury must also be instructed that “the presumption applies

unless the State proves beyond a reasonable doubt that the facts giving rise to the presumption do

not exist” and, if the State fails to make such proof, then “the jury must find that the presumed fact

exists.”10 Appellant’s jury was properly instructed on the presumption.

        The Penal Code did not recognize and give controlling effect to defensive presumptions until

2005.11 How a defensive presumption interacts with a sufficiency review appears to be an issue of

first impression. A defensive presumption is not a mere procedural rule; by statute, it imposes

substantive constraints on the jury’s decision-making with respect to whether a particular offense

has been proven.12 Given that status, it is apparent that a defensive presumption would be part of



       8
             Id. § 9.32(b)(1)(C), (2), (3) (bracketed material paraphrasing language in the statute).
        9
             Id. § 2.05(b)(1).
        10
             Id. § 2.05(b)(2)(A), (B).
       11
          See TEX . PENAL CODE § 2.05 (2004) (describing the effect of a presumption with respect
to an “element of the offense.”); Acts 2005, 79th Leg., ch. 288, § 2 (adding current language in § 2.05
regarding defensive presumptions).
       12
          See TEX . PENAL CODE § 2.05(b); see also e.g., id. § 9.32(b); see also Carmell v. Texas,
529 U.S. 513, 522, 530 (1999) (finding an ex post facto violation when a law “alters the legal rules
of evidence, and receives less, or different, testimony, than the law required at the time of the
commission of the offence, in order to convict the offender” which occurred when the law “changed
the quantum of evidence necessary to sustain a conviction”).
                                                                     BRAUGHTON DISSENT — 4

the hypothetically correct jury charge described by Malik that must be considered in assessing the

sufficiency of the evidence.13

                          Application of the Presumption in This Case

       Appellant was entitled to the benefit of the presumption of reasonableness unless the State

proved beyond a reasonable doubt that at least one of the three elements did not exist. Under the

evidence in this case, all three elements were established to such a degree that a rational jury could

not conclude beyond a reasonable doubt that the elements do not exist.

       First, the evidence established that Appellant had “reason to believe” that the complainant,

Dominguez, was attempting to rob or murder Appellant’s father. It is beyond dispute that

Dominguez aggressively followed Appellant’s father to his home and assaulted him for no apparent

legitimate reason. The fact of assault was established not only by uncontroverted testimony but also

by a photograph of Appellant’s father and by the father’s DNA on Dominguez’s knuckles. It is also

beyond dispute that Dominguez was a stranger to Appellant’s father. One natural inference that a

person might draw from these facts is that Dominguez intended to rob Appellant’s father. This

natural inference provided Appellant “reason to believe” that action was necessary to prevent a

robbery or attempted robbery. Another possible inference is that Dominguez’s road rage motivated

his assault on Appellant’s father. But “reason to believe” is a relatively lenient standard and it is

an objective standard. Appellant does not have to narrow down which of several possible crimes

is intended; he might have “reason to believe” with respect to several possible crimes. And even if


       13
           See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (“Hence, sufficiency of
the evidence should be measured by the elements of the offense as defined by the hypothetically
correct jury charge for the case.”). See also id. at 240 n.6 (a rule that would not ordinarily be in the
hypothetically correct jury charge would be included if it was “statutorily worded as a sufficiency
standard.”).
                                                                  BRAUGHTON DISSENT — 5

road rage were the motive for Dominguez’s actions, Appellant would have reason to believe from

Dominguez’s aggressive behavior, the disparity in ages between Dominguez and Appellant’s father,

and the fact that displaying a gun and verbally warning Dominguez did not stop Dominguez from

physically attacking the father, that Appellant’s father’s life was in danger. That would establish

reason to believe that Appellant needed to act to prevent a murder or attempted murder.

       Did Appellant’s “reason to believe” (that he needed to act to prevent the commission of one

of these crimes) disappear at some point? The Penal Code does not expressly address what it would

take for a “reason to believe” to dissipate, but a provision in the provocation limitation on self-

defense provides insight. Even when a defendant would otherwise be barred from asserting self-

defense because he “provoked” the other person,14 he can nevertheless assert self-defense if he

“abandons the encounter, or clearly communicates to the other his intent to do so reasonably

believing he cannot safely abandon the encounter” and other person “nevertheless continues or

attempts to use unlawful force.”15

       Under that standard, in this analogous situation, the question would be whether Dominguez

clearly communicated an intent to abandon the encounter. The only evidence that might suggest the

communication of such an intent was Gina’s testimony that Dominguez raised his hands and backed

up. Gina also testified, however, that she did not see Dominguez physically assault Appellant’s

father, even though it is undisputed that he did. The fact that Gina did not see Dominguez’s assault

means that she did not see the entire incident. Also, her view of the encounter was from a distance,



       14
         What it means to “provoke” someone in this context will be discussed in connection with
the second element of the presumption.
       15
            TEX . PENAL CODE § 9.31(b)(4)(A), (B).
                                                                      BRAUGHTON DISSENT — 6

at night, and through a solar screen, and she acknowledged that the faces appeared “blurry” to her.

These factors would impede Gina’s ability to view details that might bear on whether Dominguez’s

movement signified a permanent retreat or something else—like a move for a weapon. Given the

rapid, fluid nature of the events, a rational jury could not conclude beyond a reasonable doubt that

the movement by Dominguez that Gina testified to clearly communicated to Appellant an attempt

to abandon the encounter.

        Second, no rational jury could believe that Appellant or his father provoked Dominguez to

assault Appellant’s father. The “provocation” element of the presumption uses language similar to

the general “provocation” limitation on self-defense,16 so it should be construed consistently with

it. The “provocation” limitation on self-defense applies only if three elements are met: (1) the actor

did some act or used some words that provoked the attack on him, (2) such act or words were

reasonably calculated to provoke the attack, and (3) the act was done or the words were used for the

purpose and with the intent that the actor would have a pretext for inflicting harm upon the person

provoked.17 The evidence indisputably establishes that Appellant did not do or say anything that

could be reasonably calculated to cause Dominguez to attack Appellant’s father. And even assuming

that Appellant’s father did or said something that caused Dominguez to attack him, no rational trier

of fact would believe that Appellant’s father was acting as a pretext in order to inflict harm on

Dominguez.



        16
              Compare Tex. Penal Code § 9.31(b)(4) (“The use of force against another is not justified
. . . if the actor has provoked the other’s use or attempted use of unlawful force, unless . . .) with id.
§ 9.32(b)(2) (“did not provoke the person against whom force was used”). See also Elizondo v.
State, 487 S.W.3d 185, 196 & n.12 (Tex. Crim. App. 2016) (citing § 9.31(b)(4)).
        17
             Elizondo, supra at 197.
                                                                      BRAUGHTON DISSENT — 7

        Finally, there is no evidence that Appellant or his father were otherwise engaged in any

criminal activity. Consequently, a rational jury would have no basis for concluding that Appellant

was engaged in criminal activity that would disqualify the use of the presumption.

        Because the three elements of the presumption were established with sufficient certainty that

no rational trier of fact could find beyond a reasonable doubt that those elements did not exist, the

jury was required to find, in accordance with the presumption, that it was reasonable for Appellant

to believe that deadly force was immediately necessary to prevent the imminent commission of a

robbery or murder. As explained above, however, to be justified in using deadly force, Appellant

must also have actually believed that deadly force was immediately necessary to prevent the

imminent commission of a robbery or murder.

                                             Actual Belief

        Appellant testified that he thought Dominguez was going to rob or murder his father. Even

assuming that the jury could disregard that testimony, belief is like intent, and it is generally inferred

from circumstances.18 If the circumstances already show it reasonable to believe that deadly force

was immediately necessary, then the natural inference is that Appellant actually believed it as well.

        There was testimony that Appellant was told by his father to “go back inside” and by his

mother to “put the gun down” and that Appellant responded, “No, I got a gun now.” Even if that

exchange is some slight evidence that Appellant did not actually believe that deadly force was

immediately necessary to prevent a robbery or murder, that exchange contains too much ambiguity



        18
          See In re State ex rel. Weeks, 391 S.W.3d 117, 125 n.36 (Tex. Crim. App. 2013) (quoting
Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) (“Indeed, mental culpability is of
such a nature that it generally must be inferred from the circumstances under which a prohibited act
or omission occurs.”)).
                                                                   BRAUGHTON DISSENT — 8

for a rational jury to reach that conclusion beyond a reasonable doubt. Appellant’s parents may have

thought there was no danger, or they may have sought to protect Appellant from a very real danger

of death. Confronted with a fluid and fast-paced situation, where a failure to act might produce

serious consequences for Appellant’s father, it would be understandable for Appellant to disagree

with any assessment by his parents that deadly force was not needed, or at least be unwilling to take

the chance that that was the case. Moreover, the fact that Appellant fired only a single shot provides

further support for the notion that his actions were designed only to defend his father from a

perceived danger. Under these circumstances, no rational jury could conclude beyond a reasonable

doubt that Appellant did not actually believe that deadly force against Dominguez was immediately

necessary to protect Appellant’s father from the imminent commission of robbery or murder.

        I conclude that the evidence was legally insufficient to rebut Appellant’s defense-of-third-

persons defense. Consequently, I would render a judgment of acquittal. Because the Court does not,

I respectfully dissent.

Filed: December 19, 2018
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