                     PD-0485-15                                                PD-0485-15
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                              Transmitted 5/1/2015 9:29:15 AM
                          No.____________                      Accepted 5/1/2015 12:02:01 PM
                                                                               ABEL ACOSTA
                                                                                       CLERK
                                 In the
                       Court of Criminal Appeals
                       
                         No. 14-14-00245-CR
In the Court of Appeals for the Fourteenth District of Texas at Houston
                       
                             No. 1407238
                    rd
          In the 263 District Court of Harris County, Texas
                       
                   JEREMY DESHAWN DUGAR
                               Appellant
                                   V.
                       THE STATE OF TEXAS
                                Appellee
                       
       STATE’S PETITION FOR DISCRETIONARY REVIEW
                       

                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas

                                              KATIE DAVIS
                                              Assistant District Attorney
                                              Harris County, Texas
                                              TBC No. 24070242
       May 1, 2015
                                              TIM BALLENGEE
                                              MATTHEW PENEGUY
                                              Assistant District Attorneys
                                              Harris County, Texas

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

                                              Counsel for Appellee

                 ORAL ARGUMENT REQUESTED
                    IDENTIFICATION OF THE PARTIES


Counsel for the State:

      Devon AndersonDistrict Attorney of Harris County

      Katie DavisAssistant District Attorney on appeal

      Tim Ballengee; Matthew Peneguy  Assistant District Attorneys at trial

Appellant or Criminal Defendant:

      Jeremy Deshawn Dugar

Counsel for Appellant:

      Alexander Bunin – Public Defender of Harris County

      Mark C. Kratovil – Counsel on Appeal

      Sean Buckley; Tonya McLaughlin—Counsel on at trial


Trial Judge:

      Honorable Jim WallaceJudge of 263rd District Court




                                       i
                                        TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES .....................................................................i

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ................................................vi

STATEMENT OF THE CASE................................................................................ vii

STATEMENT OF PROCEDURAL HISTORY ...................................................... vii

STATEMENT OF FACTS ......................................................................................... 1

GROUNDS FOR REVIEW ....................................................................................... 6

   A. The appellant was not entitled to self-defense under a multiple assailants
      theory when the victim was merely present at the scene. ...............................6
   B. The court of appeals erred in finding that the appellant was entitled to a self-
      defense instruction because there was no evidence that he reasonably
      apprehended an immediate danger. .................................................................6
   C. The trial court could determine as a matter of law that the victim was an
      innocent third person under Section 9.05 of the Texas Penal Code thus
      precluding an instruction on self-defense. .......................................................6
   D. The court of appeals erred in finding that the appellant was harmed by the
      failure to include a self-defense instruction because evidence sufficiently
      established beyond a reasonable doubt that there was no justification for
      protection against deadly force. .......................................................................6

ARGUMENT ............................................................................................................. 6

GROUND FOR REVIEW ONE ................................................................................ 7

GROUND FOR REVIEW TWO ............................................................................. 11

GROUND FOR REVIEW THREE ......................................................................... 13

GROUND FOR REVIEW FOUR ........................................................................... 17

PRAYER FOR RELIEF ........................................................................................... 18

CERTIFICATE OF SERVICE AND COMPLIANCE............................................. 20
                                                           ii
                                     INDEX OF AUTHORITIES


CASES

Arias v. State,
  04-04-00247-CR, 2005 WL 1334536 (Tex. App.—
  San Antonio June 8, 2005, pet. ref’d) ..................................................................15
Banks v. State,
  955 S.W.2d 116 (Tex. App.—
  Fort Worth 1997, no pet.) .....................................................................................14

Beardsley v. State,
  738 S.W.2d 681 (Tex. Crim. App. 1987) ................................................................9

Black v. State,
  65 Tex. Crim. 336,
  145 S.W. 944 (1912)...............................................................................................7
Brown v. State, 10-07-00279-CR, 2010 WL 138331 (Tex. App.—
  Waco Jan. 13, 2010, pet. ref’d, untimely filed)............................................. 14, 16

Cunningham v. State,
  982 S.W.2d 513 (Tex. App.—
  San Antonio 1998, pet. ref’d) .................................................................................8
Dickey v. State,
  22 S.W.3d 490 (Tex. Crim. App. 1999)....................................................... 7, 8, 18
Dugar v. State,
 14-14-00245-CR, 2015 WL 1632690 (Tex. App.—
 Houston [14th Dist.] April 9, 2015, pet. filed) ............................................. passim

Evans v. State,
  202 S.W.3d 158 (Tex. Crim. App. 2006) ................................................................9
Hamel v. State,
 916 S.W.2d 491 (Tex. Crim. App. 1996) .............................................................. 11

Horn v. State,
 647 S.W.2d 283 (Tex.Crim.App. 1983) ...............................................................10



                                                         iii
People v. Johnson,
  316 N.W.2d 247 (Mich. 1982) .............................................................................10

Scroggs v. State,
  396 S.W.3d 1, 13 (Tex. App.—
  Amarillo 2010, pet. ref’d, untimely filed)............................................................12

Shaw v. State,
  243 S.W.3d 647 (Tex. Crim. App. 2007) ........................................................ 11, 17
Sparks v. State,
  177 S.W.3d 127 (Tex. App.—
  Houston [1st Dist.] 2005, no pet.) ........................................................................15

State v. Sandoval,
  258 P.3d 1016 (N.M. 2011) ..................................................................................10

Thomas v. State,
  05-96-01469-CR, 1998 WL 549070 (Tex. App.—
  Dallas Aug. 31, 1998, pet. ref’d) ..........................................................................14
Vidal v. State,
  418 S.W.3d 907 (Tex. App.—
  Houston [14th Dist.] 2013, pet. ref’d)........................................................... 14, 16

STATUTES

TEX. PENAL CODE § 1.07(42) (West supp. 2014) ..................................................... 11

TEX. PENAL CODE § 6.04 (West 2011) .....................................................................13
TEX. PENAL CODE § 7.02 (West 2011) .......................................................................7

TEX. PENAL CODE § 9.05 (West 2011) .....................................................................13

TEX. PENAL CODE § 9.31 (West 2011) ..................................................................... 11

TEX. PENAL CODE. § 9.31(b) (West 2011)............................................................... 14

TEX. PENAL CODE § 9.32 (West 2011) ..................................................................... 11
TEX. PENAL CODE § 19.02 (West 2011) ...................................................................16



                                                      iv
RULES

TEX. R. APP. P. 66.3 ....................................................................................................6

TEX. R. APP. P. 68.2 .................................................................................................. vi

TEX. R. APP. P. 68.4 (c) ...............................................................................................v




                                                            v
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 68.4 (c), the State requests oral argument because

this case deals with a self-defense claim involving unique facts, and specific

questions regarding the facts may assist this Court in reaching a just decision.

Furthermore, in order to reach its holding in this case, the court of appeals was

required to distinguish its own precedent as well as precedent from other courts of

appeals. Finally, the issue of who decides predicate questions for a self-defense

instruction and the factors involved in that analysis could have an impact on a

substantial number of cases throughout the State of Texas.




                                        vi
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                          STATEMENT OF THE CASE

      The State charged the appellant with the felony murder of Tevin Williams

(CR–7). The jury found the appellant guilty (CR–121; 6 RR 22). The trial court

sentenced him in accordance with the jury’s verdict to twelve years in the Texas

Department of Criminal Justice, Institutional Division (CR–128-30; 7 RR 32-33).

The appellant filed timely notice of appeal, and the trial court certified that he had

the right to appeal (CR–132-34).


                   STATEMENT OF PROCEDURAL HISTORY

      The court of appeals issued a published opinion reversing the conviction,

holding that the trial court was required to give a jury instruction on the law of

self-defense. Dugar v. State, 14-14-00245-CR, 2015 WL 1632690 (Tex.App.—

Houston [14th Dist.] April 9, 2015, pet. filed) (attached as Appendix A). This

petition for discretionary review is timely if filed on or before May 11, 2015. TEX.

R. APP. P. 68.2.




                                         vii
                                 STATEMENT OF FACTS

       On May 2, 2010, 17-year-old Tevin Williams arrived at a going away party

for a friend heading to jail (3 RR 34-5, 84). Over a hundred people gathered in an

abandoned K-Mart parking lot for the sendoff (3 RR 34-5, 85). About fifteen

minutes after Williams arrived, the police shut down the party; everyone cleared in

a hurry and moved to a nearby park (3 RR 34, 39).

       Williams rode along with Frederick Gibson, Adrian King and William

Watson to the park in Gibson’s black Dodge Charger (3 RR 39, 87-88, 166-67). See

(St.Ex. #8). As cars left the K-Mart parking lot, some jostling occurred near the

exits, where people tried to maneuver their vehicles in front of others (3 RR 89). A

caravan of vehicles followed Gibson onto Wallisville Road, including a black

Cadillac driven by a friend, Timothy Stallworth, and a red Ford Focus (3 RR 86-

89, 92, 169). The appellant, driving in a Jeep, and his brothers, driving in two

separate Buicks,1 also followed the caravan (3 RR 88).

       On the way to the park, several of the cars following Gibson were involved

in an accident2 (3 RR 92, 168). Watson and Gibson did not see the accident


1
  Watson first testified that the two Cadillacs were with the appellant’s convoy, but later clarified
that they were Buicks (3 RR 51-3). See (St.Ex. #7).
2
  The accounts of who was involved in the actual collision vary from witness to witness. Watson
stated he did not have personal knowledge of the accident, but knew the Hispanic couple in the
green Explorer had been hit (3 RR 47-8). Gibson testified that he did not see who was involved
in the wreck, but thought it may have been Stallworth and the appellant (3 RR 92). Gibson later
themselves, but King saw some cars “swinging” – going side-to-side with their

cars (3 RR 47-8, 92-4, 167). King saw the appellant’s car hit another car and

Stallworth’s vehicle, causing Stallworth to hit a green Ford Explorer (3 RR 168-9).

The green Explorer was not part of the caravan or going-away party, and contained

a Hispanic couple, Cesar Gonzalez and Jennifer Javier, and their nine-month-old

child (3 RR 94, 195-7). See (St. Ex. #9).

       After learning about the accident, Gibson pulled over into a Workforce

Solutions parking lot along Wallisville Road and flagged others down (3 RR 70,

115). Stallworth and the green Explorer pulled over into the lot, but the appellant

and the two Buicks left the scene (3 RR 49, 170). People in the parking lot were

upset and confused about the accident (3 RR 97-8, 171). The appellant and his

brothers returned to the parking lot about ten to fifteen minutes after they drove off

(3 RR 53, 115, 173).

       When the appellant’s convoy arrived, they did not exit their vehicles; instead

they stayed in their vehicles and “rolled” through the parking lot (3 RR 50, 75-6,

175). The others attempted to get information from the appellant regarding the

accident, but the appellant would not provide any information (3 RR 174-5).


learned the Hispanic couple in the green Explorer had been hit (3 RR 94). King testified he saw
the appellant hit multiple cars (3 RR 168). The appellant’s brother testified that the red Ford hit
the Explorer (5 RR 64). The appellant’s cousin testified that the Cadillac ran a red light and hit
another vehicle (5 RR 96). The appellant testified that the Cadillac and the red Ford sandwiched
his vehicle, which caused his Jeep to hit the red Ford (5 RR 128).



                                                2
Although there was some arguing according to Watson, King, and Gibson, no

threats were made and no guns were drawn (3 RR 55-7, 103, 175, 201, 207; 5 RR

131). The State’s witnesses all testified no one showed a weapon to the appellant or

his convoy (3 RR 55-7, 103, 175, 201, 207). The appellant’s brother and the

appellant’s cousin testified they saw multiple people with guns (5 RR 65-6, 99).

The appellant testified he saw only one person with a gun, but it was never pointed

at him or anyone else (5 RR 131).

      No one, including the appellant, saw Williams with a weapon (3 RR 105,

181; 5 RR 158). No one, including the appellant, saw Williams threaten the

appellant (3 RR 105, 181). No one, including the appellant, saw Williams and the

appellant in any altercation (3 RR 105, 181).

      The appellant stated he did not argue with anyone and was only in the

parking lot for three to five minutes (5 RR 131). But because he was riding in a

Jeep, the appellant felt vulnerable and threatened by the hostile group of people in

the parking lot (5 RR 131). The appellant grabbed his gun out of fear, but did not

show it to anyone (5 RR 132).

      The appellant and his brothers left the parking lot (5 RR 134). When the

appellant was out of the parking lot on Wallisville Road, he turned and pointed his

gun loaded with hollow-point bullets towards the crowd of people (5 RR 134).

Though no one pointed a firearm at him and he was in the process of leaving, the



                                         3
appellant shot two times towards the crowd (5 RR 134, 157-8). He felt that the

crowd pursued his vehicle and was going to cause him harm (5 RR 133-4). The

appellant, with military training, knew it was unsafe and dangerous to human life

to fire into a crowd of people (5 RR 141-2). The appellant was the first to shoot (5

RR 157-8). The appellant shot Williams (5 RR 57). The appellant kept driving and

did not return (5 RR 157-8).

      Dennis Wolfford, a homicide detective with the Harris County Sheriff’s

Office, arrived on the scene around 7:00 pm (4 RR 3). Wolfford, along with other

deputies, interviewed the witnesses on the scene and tested each of their hands for

gunshot residue (4 RR 8, 12). Williams’ test results were negative (4 RR 88-90).

Justin Harris, a passenger in Stallworth’s Cadillac, admitted to firing several return

shots at the appellant from Gibson’s .380 handgun (3 RR 114; 4 RR 12). Officers

recovered spent .380 caliber bullet cartridges from the parking lot that matched that

gun (3 RR 128-9; 5 RR 55).

      From his investigation, Wolfford identified the appellant as the suspected

shooter and issued a warrant for his arrest (4 RR 21-4). After the appellant was

arrested, he provided a statement to police (4 RR 26). See (St.Ex. #46). The

appellant admitted to being the first shooter after Wolfford mentioned self-defense

(4 RR 39; 5 RR 145-8). The appellant told officers that he thought the other group

could have been trying to steal his brothers’ Buicks (4 RR 41-2; 5 RR 150). The



                                          4
appellant admitted he knew of Williams’ death but did not report anything about

his involvement (5 RR 83, 92, 111-12, 114). The appellant told officers he had

given the 9-millimeter pistol to his brother after the shooting (4 RR 33-4). After

further investigation, law enforcement found two shell casings from a 9-millimeter

pistol in the road near the parking lot that matched the appellant’s weapon (4 RR

18-19; 5 RR 56-8). And a 9-millimeter projectile was found with Williams’ blood

on it that matched the appellant’s weapon as well (5 RR 45-7, 57).

      Williams died from a gunshot wound to the chest, and his death was ruled a

homicide (5 RR 24-5). The bullet entered through the top front part of his chest,

traveled through his right lung in a downward direction, and exited through his

mid-back (5 RR 17-18). The medical examiner that performed Williams’ autopsy

described this trajectory as unusual, and explained that Williams could have been

bending over at the waist (5 RR 18-19). He also explained that he would not expect

a through and through injury to be caused by a “falling” bullet, one shot directly

into the air, because it would not have enough force to exit the body (5 RR 31).




                                         5
                          GROUNDS FOR REVIEW

      A.    The appellant was not entitled to self-defense under a
            multiple assailants theory when the victim was merely
            present at the scene.

      B.    The court of appeals erred in finding that the appellant was
            entitled to a self-defense instruction because there was no
            evidence that he reasonably apprehended an immediate
            danger.
      C.    The trial court could determine as a matter of law that the
            victim was an innocent third person under Section 9.05 of
            the Texas Penal Code thus precluding an instruction on self-
            defense.
      D.    The court of appeals erred in finding that the appellant was
            harmed by the failure to include a self-defense instruction
            because evidence sufficiently established beyond a
            reasonable doubt that there was no justification for
            protection against deadly force.

                                  ARGUMENT

      This petition for discretionary review should be granted because the lower

court decided an important issue of state law that should be settled by this Court,

because the decision conflicts with other courts of appeals’ decisions on the same

issue, and because the analysis used by the court has so far departed from the

accepted and usual course of judicial proceedings so as to call for an exercise of

this Court’s power of supervision. TEX. R. APP. P. 66.3. Specifically, the court of

appeals held that the appellant was entitled to a jury instruction on self-defense

under a theory of multiple assailants despite the fact there was no evidence



                                        6
indicating that the victim was a part of the perceived hostility and no reasonable

belief of an immediate danger. Furthermore, the court of appeals determined that

whether a victim is an innocent bystander under Section 9.05 is a question for the

factfinder, contrary to its previous precedent and other courts of appeals.


                          GROUND FOR REVIEW ONE

      The appellant was not entitled to self-defense under a multiple
      assailants theory when the victim was merely present at the scene.

      The court of appeals appears to contend that the appellant was entitled to an

instruction on self-defense from multiple assailants regardless of the complainant’s

actions. See Dugar, 2015 WL 1632690 at *11. But Williams’ mere presence in the

parking lot fails to establish that he acted as a party to the threat the appellant

perceived. A claim of self-defense from multiple assailants requires some evidence

that the appellant could have perceived that the victim was complicit with those

who threatened his life. See Dickey v. State, 22 S.W.3d 490, 493 (Tex.Crim.App.

1999) (Keller, J., concurring) (“The rule concerning multiple assailants is

essentially an application of the law of parties to the defendant’s assailants.”);

Black v. State, 65 Tex. Crim. 336, 343-44, 145 S.W. 944, 947 (1912) (holding the

appellant is entitled to act in self-defense against another that is part of a larger

group of assailants when they “in any way are encouraging, aiding, or advising the

real assaulting party.”); TEX. PENAL CODE § 7.02 (West 2011). Without requiring

some evidence of a victim’s connection to the hostility, a defendant could

                                          7
presumably kill anyone merely in the vicinity of a hostile group and claim self-

defense.

      Here, no evidence was presented that Williams encouraged, aided, directed,

or acted with deadly force against the appellant; he did not have a weapon, there

was no gunshot residue found on his hands and he did not threaten or speak to

anyone, and there was no evidence that he was complicit with other’s actions

towards the appellant (3 RR 105, 158, 181). Cf. Cunningham v. State, 982 S.W.2d

513, 520 (Tex.App.—San Antonio 1998, pet. ref’d) (holding that appellant’s

presence at the time of the shooting and pointing towards the victims suggested he

acted in concert with the shooters; even if he did not shoot a gun himself and only

pointed, his action suggested he was encouraging those who were shooting); see

also Dickey, 22 S.W.3d at 493 (providing a hypothetical that deadly force may be

justified against a victim who only blocked the exit while other individuals

brandished firearms and attacked the defendant). Therefore, the appellant was not

justified in his actions against Williams because he could not be considered “a

party” to any group attack on the appellant.

      The lower court appears to conclude that merely being present with a group

of angry people is enough to garner responsibility for the group’s actions. See

Dugar, 2015 WL 1632690 at *12. The court of appeals relies on Williams being a

passenger in the Cadillac in order to support its contention that Williams partook in



                                         8
deadly force against the appellant. Id. But the court misstated the record on this

point.3 Williams was not a passenger in the Cadillac that “aggressively chased” the

appellant down; rather, the record indicated that Williams was a passenger in

Gibson’s Dodge Charger (3 RR 44, 87-88, 92, 166-67; 5 RR 126). The Charger

was not involved in the accident and Gibson only pulled into the parking lot after

he witnessed the accident behind him (3 RR 44, 87-88, 92, 166-67; 5 RR 126).

       The only evidence that connected Williams with the alleged “angry mob”

was that he was merely present in the parking lot. But mere presence has never

been held sufficient to determine any level of criminal responsibility. See, e.g.,

Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987) (holding that for

purposes of the law of parties mere presence of the defendant at the scene of the

offense will not support a conviction; but, it is a circumstance which, combined

with other facts, may show the defendant was a participant); Evans v. State, 202

S.W.3d 158, 162 (Tex.Crim.App. 2006) (holding that mere presence at the location

where drugs are found is insufficient, by itself, to establish possession of those

drugs).




3
 The court of appeals may have relied on Watson’s misstatement when he referred to the black
Cadillac as Tevin’s; however, Watson later clarified that the Cadillac belonged to Stallworth (3
RR 39, 44). And Watson, Gibson and King all testified that the complainant rode with them in
Gibson’s Charger (3 RR 44, 87-88, 92, 166-67). Even if the appellant was a passenger in the
Cadillac, finding that he encouraged the road rage or was a party to the aggression against the
appellant as a passenger would be speculation.

                                               9
      Moreover, courts that have addressed the issue have required more than

vague testimony that the crowd as a whole was hostile or that they were “all

coming after the defendant” to support a finding that the injured third party acted

in concert with the angry mob. Cf. State v. Sandoval, 258 P.3d 1016, 1021 (N.M.

2011) (finding that the defendant’s testimony that the victim looked as if he were

searching for something in the car was evidence to support providing an instruction

on self-defense from multiple attackers); Horn v. State, 647 S.W.2d 283, 285

(Tex.Crim.App. 1983) (finding the evidence showed the victim acted in concert

with two other assailants when the defendant testified that the victim kicked him

and there was undisputed testimony that he aided the other two assailants).

      The principle of self-defense against multiple assailants does “not give a

defendant carte blanche to kill anybody who is marginally associated with the

alleged assailant.” People v. Johnson, 316 N.W.2d 247, 249 (Mich. 1982).

Following the lower court’s logic, the appellant would have been justified in killing

anyone in the parking lot, including Javier’s nine-month-old child that was also

merely present in the crowd. See (3 RR 196-200). Therefore, the court of appeals

erred in holding otherwise.




                                         10
                          GROUND FOR REVIEW TWO

       The court of appeals erred in finding that the appellant was entitled
      to a self-defense instruction because there was no evidence that he
      reasonably apprehended an immediate danger.

      A defendant is not entitled to a self-defense instruction merely because he

asks for it and claims that he felt fear at the time he used deadly force; rather, the

fact that he reasonably believed his use of force was immediately necessary to

protect himself from another’s use or potential use of deadly force must be raised

by the evidence. Shaw v. State, 243 S.W.3d 647, 658 (Tex.Crim.App. 2007); TEX.

PENAL CODE §§ 9.31, 9.32 (West 2011). This belief is measured by a mixed

objective and subjective standard to determine whether a defendant was justified in

using deadly force. See Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996)

(noting that the “term ‘reasonably believes’ in § 9.32 encompasses the traditional

holding that a suspect is justified in defending against danger as he reasonably

apprehends it.”); TEX. PENAL CODE § 1.07(42) (West supp. 2014) (measuring

reasonableness of the belief by the objective standard of an “ordinary and prudent

man.”).

      An instruction on self-defense is not required when it is not raised by the

evidence. Id. And when the undisputed facts demonstrate a complete absence of

immediate necessity or harm, a trial court may deem it unreasonable as a matter of

law. Scroggs v. State, 396 S.W.3d 1, 13 (Tex.App.—Amarillo 2010, pet. ref’d,



                                         11
untimely filed); Wilson v. State, 777 S.W.2d 823, 825 (Tex.App.—Austin 1989),

aff’d, 853 S.W.2d 547 (Tex.Crim.App. 1993).

      In the present case, looking at the evidence from the appellant’s viewpoint,

the evidence failed to show a reasonable belief that he was in imminent danger. At

the time he fired the gun, the undisputed facts show that the appellant was driving

away in a vehicle from a crowd that was pursuing him on foot (5 RR 132-5, 157-

8). He was driving on a separate road, outside of the parking lot where the crowd

remained (5 RR 133). And as he drove away from the crowd, no one got in a

vehicle and no evidence was presented that the group would have been able to

catch the appellant in his vehicle as they pursued on foot. Although the appellant

stated he felt vulnerable and threatened because the crowd was acting “vicious”

and “ferocious” towards him, he did not testify that he feared for his life or that

firing the gun was immediately necessary to protect himself from harm (5 RR 131-

4). Moreover, in the three to five minutes he was in the parking lot, he testified that

there was no argument between the groups. And while he saw a gun, no one

pointed it at him or used it in a threatening manner (5 RR 133-4).

      Additionally, the appellant’s admission that he intended to fire over the

crowd, rather than into the crowd, shows that he did not think it was immediately

necessary to defend himself from another’s use or potential use of deadly force (5

RR 134-5). Rather, he testified that he wanted to “frighten the crowd to keep them



                                          12
from pursuing [him]” (5 RR 135). Because he did not testify that he feared for his

life and firing a gun over a crowd of people to frighten them is not evidence of a

belief harm was imminent, no rational factfinder could have determined that the

appellant’s use of deadly force was immediately necessary. Thus, the court of

appeals erred in holding that the appellant was entitled to an instruction on self-

defense.


                        GROUND FOR REVIEW THREE

      The trial court could determine as a matter of law that the victim was
      an innocent third person under Section 9.05 of the Texas Penal Code
      thus precluding an instruction on self-defense.

      The lower courts of appeals are split in their treatment of Section 9.05 of the

Texas Penal Code and its ability to preclude a self-defense instruction. Section 9.05

limits the justification of self-defense, indicating that a justification is

“unavailable” if while using or threatening justified deadly force against another,

the defendant recklessly injures or kills an innocent third person. TEX. PENAL CODE

§ 9.05 (West 2011). Although it is clear that there is no justification corollary to the

doctrine of transferred intent, it is unclear how Section 9.05 applies. See TEX.

PENAL CODE § 6.04 (West 2011).




                                          13
       The statute neither defines “unavailable” nor “innocent third person.”4 See

TEX. PENAL CODE § 9.05 (West 2011). More importantly, it is unclear who decides

whether a victim was an innocent bystander: is it a question of fact to be

determined by the jury or a question of law to be determined by the trial judge. See

id.

       Some courts treat Section 9.05 as question of law to be determined by the

trial court in its role as a gatekeeper, barring a self-defense instruction. See Banks v.

State, 955 S.W.2d 116, 119 (Tex.App.—Fort Worth 1997, no pet.) (affirming trial

court’s decision not to include an instruction on self-defense because appellant

killed an innocent third person under Section 9.05); Vidal v. State, 418 S.W.3d 907,

911 (Tex.App.—Houston [14th Dist.] 2013, pet. ref’d) (affirming trial court’s

decision to exclude self-defense instruction because the complainant was an

innocent bystander under Section 9.05); Thomas v. State, 05-96-01469-CR, 1998

WL 549070, at *4 (Tex.App.—Dallas Aug. 31, 1998, pet. ref’d) (mem. op., not

designated for publication) (finding that “the trial court does not err in refusing to

submit a jury charge on defense of third persons when it is the third person or some

other innocent third party that is injured or killed.”); Brown v. State, 10-07-00279-

CR, 2010 WL 138331, at *2 (Tex.App.—Waco Jan. 13, 2010, pet. ref’d, untimely

filed) (mem. op., not designated for publication) (affirming trial court’s decision to

4
 Section 9.05 is not one of the enumerated circumstances when self-defense is “not justified.”
See TEX. PENAL CODE. § 9.31(b) (West 2011).

                                             14
exclude self-defense instruction because the complainant was an innocent

bystander).

       Other courts treat Section 9.05 as an additional charge to be submitted to the

jury. See Sparks v. State, 177 S.W.3d 127, 134 n. 5 (Tex.App.—Houston [1st Dist.]

2005, no pet.) (holding that “[w]hen the evidence raises the issue whether an

innocent third person was killed recklessly during a defendant’s use of self-

defense, the trial court must first charge the jury on the law of [the] appellant’s

right to self-defense and then further charge the jury on the section 9.05 limitation

concerning reckless injury or death of an innocent third person.”); Arias v. State,

04-04-00247-CR, 2005 WL 1334536, at *5 (Tex.App.—San Antonio June 8, 2005,

pet. ref’d) (mem. op., not designated for publication) (holding that a jury

instruction on Section 9.05 as a limitation to the appellant’s self-defense

justification was proper).

       The present case shows why guidance on this issue is needed. The court of

appeals held that the trial judge could not determine if Section 9.05 applied as a

matter of law; that it was a question for the factfinder. Dugar, 2015 WL 1632690 at

*12. But without evidence that Williams used deadly force, attempted to use

deadly force, or complied with another’s use of deadly force, the trial court should

be able to determine as a matter of law whether he was an innocent bystander.5 See

5
 As previously stated, no evidence was presented of Williams’ actions (3 RR 105, 158, 181).
Moreover, the appellant admitted that he killed Williams by accident (5 RR 158-59).

                                              15
Brown, 2010 WL 138331 at *1 (holding Section 9.05 applied when there was no

evidence in the record that the complainant used or exhibited deadly force during

the altercation from a group at a bar which led to the fatal shooting; thus, appellant

was not entitled to a self-defense instruction).

      Additionally, the lower court contradicts its previous holding in Vidal, where

it held that Section 9.05 precluded an instruction on self-defense. Vidal, 418

S.W.3d at 911. In Vidal, the appellant pushed the intended victim’s truck into a

ditch causing injury to a child passenger. Vidal, 418 S.W.3d at 909-10. The lower

court distinguishes Vidal on the facts stating that there was no dispute the child was

an innocent third person. Dugar, 2015 WL 1632690 at *13. But Williams’ actions

are not different than the child-victim in Vidal, they both were merely present.

      Moreover, the lower court concludes that even assuming Williams was an

innocent bystander the jury should still determine whether the appellant acted

recklessly in killing him, thereby determining whether his killing was justified.

Dugar, 2015 WL 1632690 at *12. But this conclusion is untenable. If the appellant

intentionally killed an innocent third person it would be an unjustifiable homicide.

See TEX. PENAL CODE § 19.02 (West 2011). And to receive a self-defense

instruction for the use of a firearm against another, the defendant cannot claim an

accidently firing; he must admit he intentionally fired the weapon. Shaw, 243




                                          16
S.W.3d at 658. Therefore, because the lower courts are split on the treatment of

Section 9.05 and need guidance, this Court should grant discretionary review.


                        GROUND FOR REVIEW FOUR

       The court of appeals erred in finding that the appellant was harmed
      by the failure to include a self-defense instruction because evidence
      sufficiently established beyond a reasonable doubt that there was no
      justification for protection against deadly force.

      The appellant was not harmed by any potential jury charge error based on

the lack of a multiple assailants self-defense instruction. The remainder of the jury

charge was correct, and the appellant did not complain about any other charge error

on appeal. The state of the evidence was strongly in favor of a conviction. The

State’s witnesses testified that, though they were upset, no threats were made or

weapons drawn (3 RR 55-56, 103, 175). All witnesses were clear that Williams

was merely present on the scene at the time and had no altercation with the

appellant (3 RR 105, 181; 5 RR 158). And the forensic evidence showed that

Williams was killed by a bullet from the appellant’s gun (5 RR 30-32, 47).

      The appellant testified he felt vulnerable, but the lower court recognized that

“[b]ecause [the] appellant gave more than one story of the events, his claim of self-

defense may not strike all as especially strong or convincing.” Dugar, 2015 WL

1632690 at *11. And other evidence supporting the appellant’s fear of a group

attack was vague testimony that the crowd as a whole was hostile (5 RR 101).



                                         17
Moreover, the appellant testified that he intended to only warn the crowd by

shooting “over” it (5 RR 154-57). Therefore, no rational factfinder could determine

that the appellant reasonably believed he was in imminent danger. See Dickey, 22

S.W.3d at 492-93 (holding there was no harm for exclusion of a multiple assailants

instruction because the evidence that the deceased and another were acting in

concert was ambiguous at best).

      Finally, the lack of an instruction on self-defense did not foreclose all other

defenses. See Dugar, 2015 WL 1632690 at *16. The appellant still had evidence

that he fired over the crowd, which he could claim was not an act clearly

dangerous to human life. Therefore, the appellant could not show that he was

harmed by any error in the jury charge, and the court of appeals erred in holding to

the contrary.


                             PRAYER FOR RELIEF

      It is respectfully requested that this petition should be granted and that the

opinion of the court of appeals should be reversed.



                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas

                                                      /S/ _Katie Davis_________
                                                      KATIE M. DAVIS
                                                      Assistant District Attorney


                                         18
     Harris County, Texas
     1201 Franklin Street, Suite 600
     Houston, Texas 77002
     Telephone (713) 755-5826
     Fax Number (713) 755-5809
     Davis_Katie@dao.hctx.net
     State Bar Number: 24070242




19
             CERTIFICATE OF SERVICE AND COMPLIANCE

      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 4,487 words in the relevant
sections; and (b) a copy of the foregoing instrument will be emailed through
TexFile to:

Marc C. Kratovil                          Lisa McMinn
Harris County Public Defender’s Office    State Prosecuting Attorney
1201 Franklin, 13th Floor                 P.O. Box 13046
Houston, TX 77002                         Austin, Texas 78711
Mark.Kratovil@pdo.hctx.net                Lisa.McMinn@SPA.texas.gov


                                                  /S/ _ Katie Davis ________
                                                  KATIE M. DAVIS
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin Street, Suite 600
                                                  Houston, Texas 77002
                                                  Telephone (713) 755-5826
                                                  Fax Number (713) 755-5809
                                                  Davis_Katie@dao.hctx.net
                                                  State Bar Number: 24070242

Date: May 1, 2015




                                         20
                      Appendix A

                  Dugar v. State,
         14-14-00245-CR, 2015 WL 1632690
(Tex.App.—Houston [14th Dist.] April 9, 2015, pet. filed)
Dugar v. State, --- S.W.3d ---- (2015)
2015 WL 1632690



                                                               to attend the party because he was Pop’s brother-in-law.
                2015 WL 1632690
  Only the Westlaw citation is currently available.            The party was located in the parking lot of an abandoned
                                                               K-mart. When appellant arrived, more than a hundred
     NOTICE: THIS OPINION HAS NOT BEEN                         people were in attendance and the crowd was acting
     RELEASED FOR PUBLICATION IN THE                           disorderly. Police were eventually called to the scene and
PERMANENT LAW REPORTS. UNTIL RELEASED,                         told the crowd to disperse because they did not have a
IT IS SUBJECT TO REVISION OR WITHDRAWAL.                       valid permit.
           Court of Appeals of Texas,
              Houston (14th Dist.                              Pop encouraged everyone to move the party to a nearby
                                                               park. Appellant’s two brothers were at the party and they
       Jeremy Deshawn Dugar, Appellant                         all agreed to drive to the park in their own separate
                        v.                                     vehicles. The plan was to follow a black Dodge Charger,
          The State of Texas, Appellee                         in which Pop was believed to be a passenger. As they
NO. 14–14–00245–CR | Opinion filed April 9, 2015               were leaving the K-mart, some jostling occurred near the
                                                               exits and several drivers tried to maneuver their vehicles
On Appeal from the 263rd District Court, Harris                in front of each other. Appellant and one of his brothers
County, Texas, Trial Court Cause No. 1407238                   happened to cut off a black Cadillac, which then ignited a
                                                               fit of road rage.
Attorneys and Law Firms
Kathryn Davis, Devon Anderson, Alan Curry, for the             Appellant was chased down on a main thoroughfare by
State of Texas.                                                the Cadillac and a red Ford Focus, which had also been at
                                                               the farewell party. The Cadillac moved into the left-hand
Mark Kratovil, for Jeremy Deshawn Dugar.                       lane, adjacent to appellant, and the Focus moved into the
                                                               shoulder on appellant’s right side. Appellant was
Panel consists of Justices Christopher, Donovan, and
                                                               effectively “sandwiched” between the two vehicles. The
Wise.
                                                               situation was made especially tense because appellant was
                                                               driving a Jeep Wrangler with the top down, and his wife
                                                               was riding as a passenger. With the Jeep’s open cover,
                                                               appellant could hear that the driver of the Cadillac was
                                                               yelling at him.
                        OPINION
                                                               At some point, appellant hit the Focus—unintentionally,
Tracy Christopher, Justice                                     he claimed—causing the Focus to spin out of control and
*1 In this appeal from a conviction for murder, the            collide with a green Ford Explorer. The driver of the
question is whether the trial court reversibly erred when it   Explorer had no prior affiliation with Pop or any of the
omitted an instruction on the law of self-defense. The trial   parties involved with this case.
court ruled that appellant was not entitled to the
instruction because he shot and killed an innocent             The driver of the Charger, who thought that he was
bystander. We conclude that the trial court’s reasoning        leading a group of cars, saw that a “big wreck” had
was erroneous, that the instruction should have been           happened behind him. Suspecting that some of the
given, and that the omission of the instruction resulted in    affected cars were from his caravan, the driver of the
some harm. We therefore reverse the trial court’s              Charger pulled into the empty parking lot of a local
judgment and remand for a new trial.                           employment office. Many cars followed him into the
                                                               parking lot, including the Cadillac, the Focus, and the
                                                               Explorer. Appellant and his two brothers drove away, but
                                                               they circled back after a few minutes, believing that Pop
                                                               was still in the Charger.
                    BACKGROUND
On the evening of May 2, 2010, appellant drove to a            *2 When appellant entered the parking lot, he estimated
farewell party for Edrick “Pop” Cole, who was                  that fifteen or sixteen people were standing outside of
celebrating one of his last nights of freedom before           their vehicles. Pop was not among the crowd, which by
turning himself in for a period of incarceration. Appellant    then was quite upset. Appellant described the crowd as
disapproved of Pop and his lifestyle, but appellant chose
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   22
Dugar v. State, --- S.W.3d ---- (2015)
2015 WL 1632690

“vicious” and “ferocious.” People were arguing, using            felt threatened at the time of the shooting because
derogatory words, and generally accusing appellant of            members of the crowd were armed.
having caused the accident.
                                                                 The State’s witnesses testified at trial that the complainant
The accounts vary as to whether appellant and his                was an aspiring young rapper who was scheduled to
brothers stayed inside of their vehicles, but it is clear that   perform at Pop’s farewell party. Witnesses said that the
tensions continued to escalate. Appellant saw that one           complainant was not armed at the time of the shooting
man in the crowd had a handgun, though he was not                and had played no part in the arguments after the
pointing it at anyone. Appellant cracked open his door           accident. One witness specifically reported that the
and exhibited a handgun of his own, but he did not point         complainant had never acted in a threatening manner, and
it at anyone either. Another man in the crowd saw                that he had been quiet the entire time.
appellant’s weapon and responded, “Oh, well we got
weapons too!”                                                    The defense witnesses included one of appellant’s
                                                                 brothers, who claimed that there were several guns in the
Sensing hostility, appellant thought that some members of        crowd. The brother also testified that he could see the
the crowd were preparing to rob him or carjack his               crowd coming towards him as he was trying to leave. A
brothers for the valuable rims on their vehicles. Appellant      passenger in the brother’s car added to this testimony by
also suspected that the arguments over the accident were         saying, “They were all after us when we were out of the
going nowhere. Believing that he was ultimately faultless        parking lot.”
with respect to the accident, appellant told his brothers
that they should all leave. The three of them then drove         *3 Appellant testified that he fired the first shots, even
away in single file, with appellant at the rear.                 though he did not believe that a gun was pointed at him at
                                                                 the time of the shooting. Appellant explained, however,
As he was exiting the parking lot, appellant turned his          that he felt vulnerable because he and his wife were
head and saw that members of the crowd were pursuing             exposed, and he was in a high state of anxiety. Appellant
him on foot. Appellant believed that his pursuers intended       stated that he only intended to scare the crowd, not kill
to cause him harm, so he grabbed his weapon, aimed               anybody.
above the crowd, and fired two or three times, hoping to
scare the crowd away. Appellant was quickly met with             The trial court drafted a charge that originally included a
return fire from a shooter in the crowd, who was later           self-defense instruction, but during the charge conference,
identified as Justin Harris. Appellant kept driving and did      the State objected that appellant was not entitled to the
not return.                                                      instruction.1 The State argued that there was no evidence
                                                                 to support the instruction because appellant did not face
One of appellant’s shots hit the complainant, Tevin              an immediate threat from the complainant. The State also
Williams, who had previously been a passenger in the             argued that there was a statutory bar to self-defense
Cadillac. The bullet entered through the top part of the         because the complainant was an innocent bystander. The
complainant’s chest, traveled through his right lung in a        latter argument invoked section 9.05 of the Texas Penal
downward direction, and exited through his mid-back.             Code, which provides that self-defense is not available in
The trajectory was fatal. The medical examiner opined            a prosecution for the reckless injury or killing of an
that the complainant may have been bending over at the           innocent third party.
waist when he was struck.
                                                                 Appellant responded that, under the circumstances, he
Appellant learned of the complainant’s death shortly after       was allowed to use either deadly force or the threat of
the shooting, but he never reported the incident to              deadly force, and that the evidence was therefore
authorities or surrendered himself for questioning. Several      sufficient to support a self-defense instruction. Appellant
days later, he was tracked down by police and arrested for       also argued that Section 9.05 did not preclude the giving
murder.                                                          of the instruction. Appellant explained that the
                                                                 complainant was a member of a larger group, and because
During his custodial interrogation, appellant gave               that group had intimidated appellant, there was at least a
conflicting versions of the events. He initially denied that     fact question as to whether the complainant was an
he owned a gun or had fired at the complainant, but when         innocent third party. Appellant also explained that Section
police raised the question of self-defense, appellant            9.05 applied only to cases involving reckless killings,
confessed that he had discharged several rounds in the           meaning that he would still be justified by acting in self-
direction of the crowd. Appellant explained that he had          defense if recklessness were not shown. Appellant

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       23
Dugar v. State, --- S.W.3d ---- (2015)
2015 WL 1632690

accordingly suggested that recklessness was another fact       the jury, would support a rational inference that the
question for the jury to decide.                               element is true. SeeShaw v. State, 243 S.W.3d 647, 657–
                                                               58 (Tex.Crim.App.2007).
The trial court determined that “there’s certainly nothing
there to indicate that [the complainant] was anything but      When deciding whether a defensive issue has been raised
an innocent bystander.” Without commenting on whether          by the evidence, a court must rely on its own judgment,
appellant had killed the complainant recklessly, the court     formed in the light of its own common sense and
accepted the State’s argument under Section 9.05 and           experience, as to the limits of rational inference from the
held that appellant was not entitled to a self-defense         facts that have been proven. Id. at 658. The defendant is
instruction. The court deleted the instruction from its        entitled to an instruction on a defense when there is
original draft and submitted a final charge that contained     legally sufficient evidence to raise the defense, regardless
no law regarding a justification defense.                      of whether the evidence supporting the defense is weak or
                                                               contradicted, and even if the trial court is of the opinion
                                                               that the evidence is not credible. Id. Whether the record
                                                               contains such evidence is a question of law, which means
                                                               that we do not apply the usual rule of appellate deference
                       ANALYSIS                                to the trial court’s ruling. Id.“Quite the reverse, we view
We review a complaint of jury-charge error under a two-        the evidence in the light most favorable to the defendant’s
step process, considering first whether error exists.          requested submission.” Bufkin v. State, 207 S.W.3d 779,
SeeNgo      v.   State,   175    S.W.3d       738,    743      782 (Tex.Crim.App.2006).
(Tex.Crim.App.2005). If error does exist, we then analyze
that error for harm under the procedural framework of          A person is justified in using deadly force against another
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984).          when and to the extent that he reasonably believes that
                                                               deadly force is immediately necessary to protect himself
                                                               from the other’s use or attempted use of unlawful deadly
                                                               force. SeeTex. Penal Code § 9.32. The State argues on
I. Did the trial court err by omitting a self-defense          appeal, as it did at trial, that there is no evidence to
instruction?                                                   support a self-defense instruction because the record
The trial court did not expressly rule on the State’s first    shows that appellant did not face an immediate threat
charge objection that the evidence failed to raise the issue   from the complainant individually. We do not take such a
of self-defense. Instead, the court concluded that the         narrow view of the right to self-defense.
complainant was an innocent bystander as a matter of law,
and based on that conclusion, the court held that appellant    When there is evidence, viewed from the standpoint of the
should not receive a self-defense instruction because of       defendant, that he was in danger of an unlawful attack or
Section 9.05.                                                  a threatened attack at the hands of more than one
                                                               assailant, the trial court should instruct the jury that the
The State asserts on appeal that the trial court made the      defendant had a right to protect himself against the
correct decision by omitting the instruction from the          multiple assailants. SeeFrank v. State, 688 S.W.2d 863,
charge, regardless of which objection it actually              868 (Tex.Crim.App.1985); Wilson v. State, 140 Tex.Crim.
sustained. We begin by addressing the State’s evidentiary      424, 429, 145 S.W.2d 890, 893 (1940). The point is well-
objection, because if self-defense was not raised by the       demonstrated by the case of Sanders v. State, 632 S.W.2d
evidence, then our error analysis is over, and there is no     346 (Tex.Crim.App. [Panel Op.] 1982). There, the
need to determine whether Section 9.05 had any                 defendant was attacked inside a beer joint, and then
preclusive effect on the giving of a self-defense              pursued outside by a group of several men. Id. at 346. The
instruction.                                                   defendant obtained a rifle and, from a distance of more
                                                               than thirty feet, shot towards the group to scare the men
                                                               away. Id. at 347. One of the shots struck the decedent, a
                                                               man who had not attacked the defendant. Id. at 346. The
A. The evidence raised the issue of self-defense.
                                                               trial court instructed the jury that it could acquit on the
*4 The trial court must give a requested instruction on
                                                               grounds of self-defense, but only if the jury found that the
every defensive issue that is raised by the evidence.
                                                               defendant reasonably believed that the decedent—and
SeeKrajcovic v. State, 393 S.W.3d 282, 286
                                                               only the decedent—was using or attempting to use
(Tex.Crim.App.2013). A defensive issue is raised by the
                                                               unlawful deadly force. Id. at 347. The Court of Criminal
evidence if there is some evidence, regardless of its
                                                               Appeals held that the charge was too restrictive, and that
source, on each element of a defense that, if believed by

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     24
Dugar v. State, --- S.W.3d ---- (2015)
2015 WL 1632690

the defendant was entitled to a self-defense instruction as
it relates to multiple assailants. Id. at 348.                 The reasonableness of a person’s belief that force is
                                                               immediately necessary is viewed from the person’s
In this case, appellant testified that he was being pursued    standpoint at the time that he acted. SeeJones, 544 S.W.2d
by a group of a men, just like the defendant in Sanders.       at 142; Kolliner v. State, 516 S.W.2d 671, 674
Appellant also testified that the group was “vicious” and      (Tex.Crim.App.1974). Here, the facts showed that
“ferocious,” and he believed the men were out to cause         appellant was placed in a hostile situation in the moments
him harm. If appellant reasonably believed that deadly         before the shooting. Two cars had chased and
force was immediately necessary to protect himself from        “sandwiched” him on the road, which was highly
the use or attempted use of unlawful deadly force from         aggressive behavior. During the chase, appellant heard
the group at large, then the evidence raised the issue of      that the driver of one of the cars was yelling at him, and
self-defense, regardless of the complainant’s individual       the aggressive driving contributed to an accident
actions. SeeFrank, 688 S.W.2d at 868; Sanders, 632             involving multiple vehicles.
S.W.2d at 348; see alsoDickey v. State, 22 S.W.3d 490,
493 (Tex.Crim.App.1999) (Keller, J., concurring) (noting       After the accident, the arguments escalated in a parking
that a person would be entitled to use deadly force in self-   lot. Many people exited their cars, and according to
defense against another, even if the other was unarmed         appellant, they were “vicious,” “ferocious,” and blaming
and made no threatening moves, provided that the other         him for the accident. The testimony supported a finding
was a party to a hostile group).                               that the crowd was akin to an angry mob. Appellant saw
                                                               that at least one person in the crowd had a gun, and he
*5 The State argues next that, even when the actions of        heard a statement that more weapons were present.
the group are examined, the evidence is still insufficient
to raise the issue of self-defense. The State emphasizes       Appellant decided to leave the parking lot, without regard
that there is no evidence that any member of the group         to the crowd’s belief that he was responsible for the
verbally threatened appellant with his life. The State also    accident. As he drove away, appellant saw that members
points out that, before the shooting, there was no history     of the crowd were pursuing him on foot. Even though he
of physical abuse between appellant and any member of          did not specifically see a gun pointed at him, appellant
the group, and no one had actually used or attempted to        could have reasonably believed that the crowd was
use deadly force against appellant. The State seems to         pursuing him for a sinister purpose: to shoot him while he
contend that an actual danger is required before a person      was exposed and still within range.
may act in self-defense. But again, that view is too
narrow.                                                        Because appellant gave more than one story of the events,
                                                               his claim of self-defense may not strike all as especially
“A person has the right to defend himself from apparent        strong or convincing. However, a defense can be raised
danger to the same extent as he would if the danger were       even when its supporting evidence has been impeached or
real.” Hamel v. State, 916 S.W.2d 491, 493                     contradicted. SeeSmith v. State, 676 S.W.2d 584, 586–87
(Tex.Crim.App.1996). Thus, under certain circumstances,        (Tex.Crim.App.1984).
a person may use deadly force against another, even if the
other was not actually using or attempting to use unlawful     Appellant testified that, in the heat of the moment, he was
deadly force. SeeJones v. State, 544 S.W.2d 139, 142           afraid of being harmed. The fact that a shooter in the
(Tex.Crim.App.1976); see alsoBurke v. State, 652 S.W.2d        crowd was able to quickly return fire suggests that a gun
788, 790 (Tex.Crim.App.1983) (noting that a person is          may have been at the ready, which lends some credibility
not required to wait until he is actually attacked before he   to the belief that harm was imminent. We conclude that it
may lawfully protect himself), superseded by rule and on       was reasonable for appellant to apprehend an immediate
other grounds as stated inWhiting v. State, 797 S.W.2d 45      danger under the circumstances, and that the evidence
(Tex.Crim.App.1990). The only requirement is that the          was therefore sufficient to raise the issue of self-defense.
person must be justified by acting against the danger “as      SeeSanders, 632 S.W.2d at 348.
he reasonably apprehends it.” SeeHamel, 916 S.W.2d at
493; see alsoDyson v. State, 672 S.W.2d 460, 463
(Tex.Crim.App.1984) (noting that the defendant would be
entitled to a self-defense instruction if he reasonably        B. Section 9.05 did not preclude a self-defense
believed that his brother was using or attempting to use       instruction.
unlawful force, and it was “immaterial” that the defendant     *6 We now consider what effect, if any, that Section 9.05
was not in fact attacked by his brother).                      has on the giving of a self-defense instruction. The statute
                                                               provides as follows:
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     25
Dugar v. State, --- S.W.3d ---- (2015)
2015 WL 1632690

             Even though an actor is justified                   Banks v. State, 955 S.W.2d 116 (Tex.App.–Fort Worth
             under this chapter in threatening or                1997, no pet.) and Vidal v. State, 418 S.W.3d 907
             using force or deadly force against                 (Tex.App.–Houston [14th Dist.] 2013, pet. ref’d). In both
             another, if in doing so he also                     cases, Section 9.05 was cited as authority for denying an
             recklessly injures or kills an                      instruction on a justification defense. SeeBanks, 955
             innocent     third    person,    the                S.W.2d at 118; Vidal, 418 S.W.3d at 911.
             justification afforded by this
             chapter is unavailable in a                         *7 Banks is not binding on this court, and Vidal is
             prosecution for the reckless injury                 distinguishable on the facts. In Vidal, the defendant was
             or killing of the innocent third                    charged with reckless injury to a child, and there was no
             person.                                             dispute that the child was an innocent third person.
                                                                 SeeVidal, 418 S.W.3d at 911. In this case, there was at
Tex. Penal Code § 9.05.                                          least a fact question regarding the complainant’s
                                                                 bystander status, and appellant was charged with more
The State argued that appellant could not receive a self-        than just reckless conduct. The jury was asked to decide
defense instruction because of Section 9.05, and the trial       whether appellant acted intentionally, knowingly, or
court agreed, having concluded as a matter of law that the       recklessly. Moreover, the Court of Criminal Appeals has
complainant was an innocent bystander. The trial court’s         held that the jury may be instructed on the law of self-
conclusion was erroneous for at least two reasons.               defense, even when the defendant is charged with a crime
                                                                 in which the culpable mental state is recklessness.
First, as appellant argued at trial, there was at least a fact   SeeAlonzo v. State, 353 S.W.3d 778, 782
question as to whether the complainant was an innocent           (Tex.Crim.App.2011).
bystander. The evidence showed that the complainant was
a passenger in the same Cadillac that had aggressively           During the charge conference, appellant requested an
chased appellant down the road. After the accident, the          instruction on self-defense that included a statement under
complainant exited the Cadillac and joined the larger            Section 9.05 that the jury should convict him if he
crowd that appellant described as “vicious” and                  recklessly used deadly force against the complainant. 3 We
“ferocious.” The State’s witnesses testified that the            conclude that appellant was entitled to the instruction, and
complainant was quiet and never made any threats, but            that the trial court erred by refusing to give it.
the defense witnesses testified that the crowd as a whole
was hostile. One defense witness specifically testified that
the entire crowd was in pursuit of appellant as he was
leaving the parking lot: “They were all after us.” Thus,         II. Did the trial court’s error result in some harm?
there was a conflict in the evidence. The jury could have        Not all jury-charge errors require reversal. SeeReeves v.
found that the complainant was pursuing appellant on             State, 420 S.W.3d 812, 816 (Tex.Crim.App.2013). If the
foot, or that he was at least a party to an attempted attack.2   defendant did not object to the erroneous charge, he must
                                                                 show that the error was “fundamental” and that he
Second, even if we assumed that the complainant was an           suffered “egregious harm” before the judgment may be
innocent third person, his bystander status alone would          reversed. Id. Conversely, if the defendant did object at
not preclude the giving of a self-defense instruction.           trial, as appellant did here, then he will obtain relief if the
Section 9.05 states that a justification defense is              record shows that he suffered “some harm.” Id.
unavailable when the actor “recklessly” injures or kills an
innocent third person. Whether a person acts recklessly is       When applying the “some harm” standard, a reviewing
a determination that can be made only by the finder of           court must determine whether the defendant “suffered
fact, which in this case was the jury. SeeBrown v. State,        some actual, rather than merely theoretical, harm from the
122 S.W.3d 794, 800 (Tex.Crim.App.2003) (“[I]n                   error.” Id. We consider several factors: (1) the jury charge
homicide prosecutions, the defendant’s state of mind is a        as a whole, (2) the arguments of counsel, (3) the entirety
question of fact that must be determined by the jury.”). It      of the evidence, and (4) any other information that is
necessarily follows that the trial court could not make a        relevant and contained within the record. Id.
preliminary determination that appellant shot the
complainant recklessly, and was therefore ineligible to          As stated above, the charge did not instruct the jury on
claim self-defense.                                              any justification defenses. The jury was asked to
                                                                 determine only whether appellant was guilty of felony
The State contends that we must follow the decisions in          murder. The charge gave two alternative theories on
                                                                 which the jury could convict, and the theories stated as
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        26
Dugar v. State, --- S.W.3d ---- (2015)
2015 WL 1632690

follows:                                                      its closing arguments, and the first legal issue that the
                                                              prosecutor addressed was the omission of a self-defense
  Now, if you find from the evidence beyond a                 instruction. The prosecutor told the jury:
  reasonable doubt that on or about the 2nd day of May,
  2010, in Harris County, Texas, the defendant, Jeremy                     You are not going to see self-
  Deshawn Dugar, did then and there unlawfully, commit                     defense in this jury charge. You
  the felony offense of aggravated assault by                              didn’t just hear the Judge read it
  intentionally, knowingly or recklessly causing serious                   and there is a reason for that.
  bodily injury to Tevin Williams by firing a firearm into                 Because it is not appropriate.
  the vicinity of a group of people, and while in the                      Because Tevin Williams was an
  course of and furtherance of the commission of said                      innocent bystander. Because his
  offense did commit an act clearly dangerous to human                     presence there didn’t create the
  life, to-wit: firing a deadly weapon, namely a firearm,                  excuse for unlawful [sic] deadly
  into the vicinity of a group of people and did thereby                   force. Because the defendant was
  cause the death of Tevin Williams; or                                    not entitled to self-defense against
                                                                           Tevin Williams.
  If you find from the evidence beyond a reasonable
  doubt that on or about the 2nd day of May, 2010, in
  Harris County, Texas, the defendant, Jeremy Deshawn         Defense counsel was left to argue in her closing
  Dugar, did then and there unlawfully, commit the            statements that appellant did not act with the requisite
                                                              mens rea. Counsel argued, for instance, that appellant did
  felony offense of deadly conduct by intentionally,
                                                              not intend to shoot the complainant; rather, appellant
  knowingly, or recklessly discharging a firearm at or in
                                                              intended only to scare the group, and he was not aware
  the direction of Tevin Williams, and while in the course
  of and furtherance of the commission of said offense,       that his bullets would strike anyone in particular. These
  did commit an act clearly dangerous to human life, to-      arguments provided no answer to the portion of the
                                                              charge that asked the more general question of whether
  wit: by firing a deadly weapon, namely a firearm, into
                                                              appellant intentionally or knowingly “discharg[ed] a
  the vicinity of a group of people and did thereby cause
                                                              firearm at or in the direction of” the complainant, a fact
  the death of Tevin Williams, then you will find the
                                                              which was conclusively established by appellant’s own
  defendant guilty of felony murder, as charged in the
  indictment.                                                 testimony. The only answer that appellant could have
                                                              provided to that portion of the charge was a justification
                                                              defense, but in this case, none was allowed.4
*8 The evidence left little doubt that appellant committed
the actus reus. The bullet that struck the complainant was
                                                              The Court of Criminal Appeals has recognized that the
consistent with a bullet from appellant’s firearm. And, of
                                                              erroneous omission of a confession-and-avoidance
course, appellant admitted that he discharged his weapon
in the direction of the group of people where the             defense, such as self-defense, “is generally harmful
complainant was ultimately shot.                              because its omission leaves the jury without a vehicle by
                                                              which to acquit a defendant who has admitted to all the
                                                              elements of the offense.” SeeCornet v. State, 417 S.W.3d
Appellant freely gave his testimony in anticipation that he
                                                              446, 451 (Tex.Crim.App.2013). That appears to have
would receive a self-defense instruction. His entire
defense was built around that theory, which he made           been what happened here. Appellant pitched this case as a
aware to the jury before any witnesses had taken the          question of self-defense, and he admitted to the conduct
                                                              that formed the basis of the offense in order to receive a
stand. During voir dire, defense counsel questioned the
                                                              self-defense instruction. When that instruction was taken
venire panel about self-defense, and even elicited stories
                                                              away from the jury, appellant was left without his only
from the panel about how some had been involved in bar
                                                              defensive theory, making his conviction a virtual
fights or other personal attacks. And during opening
statements, defense counsel clearly signaled that self-       inevitability.
defense was the ultimate issue in the case. Counsel began
                                                              *9 We cannot know for certain whether the jury would
her opening statement as follows: “Good morning, ladies
                                                              have accepted appellant’s claim of self-defense had that
and gentlemen. Jeremy Dugar is not guilty of murder. He
                                                              issue been submitted. As we indicated above, appellant
did not know the decedent in this case. What took place is
                                                              initially denied to police that he was involved in the
a tragic accident that was in the course of justified self-
defense.”                                                     shooting, which casts doubt on his defensive theory.
                                                              Nevertheless, appellant testified to facts that, if believed,
                                                              raised the issue of self-defense, and it is not for this court
After the charge conference, the State was first to present
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Dugar v. State, --- S.W.3d ---- (2015)
2015 WL 1632690

to decide whether that claim was credible.                            evidence showed that appellant was entitled to an
                                                                      instruction on self-defense, and there is at least some
The evidence shows an unfortunate sequence of events in               indication that the jury found that appellant was not
which there seems to have been some level of aggression               significantly blameworthy. Having considered all of the
directed towards appellant. The jury appeared to                      pertinent factors, we conclude that the trial court’s error
sympathize with him. During the punishment stage,                     resulted in some harm, not merely theoretical harm.
appellant requested a five-year sentence, the minimum for             SeeCarmen v. State, 276 S.W.3d 538, 546–47 (Tex.App.–
a felony in the first degree. The State sought no less than           Houston [1st Dist.] 2008, pet. ref’d) (concluding that the
thirty years. The jury sentenced appellant to only twelve             erroneous omission of a self-defense instruction resulted
years, which suggests a belief that he was not                        in some harm); Johnson v. State, 271 S.W.3d 359, 368–69
significantly blameworthy. Cf.State v. Warden, No. PD–                (Tex.App.–Beaumont 2008, pet. ref’d) (same); Guilbeau
1502–10, 2011 WL 1157562, at *1 (Tex.Crim.App. Feb.                   v. State, 193 S.W.3d 156, 161 (Tex.App.–Houston [1st
9, 2011, not designated for publication) (Keller, P.J.,               Dist.] 2006, pet. ref’d) (same); VanBrackle v. State, 179
dissenting from the refusal of a petition for discretionary           S.W.3d 708, 716–17 (Tex.App.–Austin 2005, no
for review) (opining that the erroneous omission of a self-           pet.)(same).
defense instruction was probably harmless because the
jury assessed punishment at sixty-five years’
imprisonment, indicating a belief that the defendant was
significantly blameworthy).
                                                                                          CONCLUSION
To summarize, appellant had only a single defense, and it             The trial court’s judgment is reversed and the case is
was a justification defense that required him to first prove          remanded for a new trial.
the facts that comprised the charged offense. When the
trial court denied an instruction on appellant’s sole
defensive theory, the jury was given a charge that
contained no vehicle with which it could acquit. The

Footnotes
1        The original draft of the trial court’s charge is not in our record, but we can deduce that it contained a self-defense
         instruction because appellant submitted a written request during the charge conference to “edit” the court’s instruction
         on self-defense.
2        The State points out that the complainant was found without a weapon on his person and that his hands tested
         negative for the presence of gunshot residue. But the defense witnesses testified that there were multiple guns in the
         crowd. Furthermore, one police detective testified that he was never able to locate the Focus or its occupants, which
         raises the suggestion that the crime scene had not been preserved by the time police arrived.
3        The requested instruction provided as follows: “Furthermore, if you find that in using or threatening to use force or
         deadly force in self defense or defense of a third person, Jeremy Desha[w]n Dugar recklessly injured or killed an
         innocent third person, then you should find against the defendant on the issue of self defense and on the issue of
         defense of a third person.”
4        Defense counsel also responded to the charge of recklessness, but the argument essentially consisted of just a
         definition of that mental state. Counsel quickly shifted her discussion to omissions in the State’s case, like the absence
         of scene diagrams and videos.




    End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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