                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                     Nos. 04-13-00837-CR; 04-14-00121-CR & 04-14-00122-CR

                                       Dorin James WALKER,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 187th Judicial District Court, Bexar County, Texas
                   Trial Court Nos. 2012CR8371B; 2012CR8370B & 2012CR8372B
                            Honorable Raymond Angelini, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: October 29, 2014

AFFIRMED

           In a single incident, Dorin James Walker shot three different victims. Two of those victims

died. Walker was charged with various offenses in relation to the three victims, and a jury

subsequently convicted Walker of murder, manslaughter, and aggravated assault. On appeal,

Walker raises several complaints relating to the jury charge and also contends the trial judge

committed reversible error in entering the jury’s deliberation room and communicating with the

jury regarding the status of their deliberations. We affirm the judgments in all three causes.
                                                     04-13-00837-CR; 04-14-00121-CR & 04-14-00122-CR


                                          BACKGROUND

       Walker’s brother, Donderick, was friends with Larry Williams. On June 28, 2012,

Williams invited Donderick to his apartment. Shortly after Donderick’s arrival, Williams left, and

Donderick remained in the apartment with Williams’s cousin, Stephen Kareem McGowan, and

another friend, Deandre Cameron. After Williams failed to respond to repeated phone calls from

Donderick over the next few hours, Donderick left and went to his own apartment. Upon arriving

at his apartment, Donderick discovered his apartment had been burglarized. Several items were

stolen, including a safe containing over $2,000 in cash.

       When Donderick accused Williams of the burglary, Williams became angry, and

Donderick felt threatened by the messages Williams texted to him. Donderick packed the rest of

his belongings and moved to his mother’s house where Walker also was living. Although the

direct communication between Donderick and Williams ended after a few days, Williams

continued to express his anger through social media. After Cameron followed Donderick to his

mother’s house on July 7, 2012, Donderick again felt threatened and purchased a semi-automatic

handgun for protection on July 9, 2012.

       On July 10, 2012, McGowan signaled for Donderick and Walker to stop at McGowan’s

car lot. After a brief conversation, Donderick and Walker left. McGowan called Donderick a

short time later and told him Williams would be calling him. Although Williams initially stated

that he was going to Donderick’s house, he later texted Donderick to meet him at the car lot.

       When Donderick and Walker drove to the car lot, Donderick took his new handgun. Upon

arriving at the car lot, Walker took the handgun from Donderick and placed the handgun in his

pocket. The two then walked up to the carport where McGowan, Williams, and their grandfather,

Alvin Mathis, Sr., were playing dominoes. A confrontation ensued, and Walker shot the three

men. McGowan was shot five times, and Williams was shot four times. Both men died at the
                                               -2-
                                                        04-13-00837-CR; 04-14-00121-CR & 04-14-00122-CR


scene. Mathis was shot once in the side. After the incident, Donderick and Walker fled to

Louisiana where they previously lived. Walker subsequently confessed to the shootings but

claimed to have acted in defense of himself and Donderick.

       After a consolidated trial that lasted several days, a jury found Walker guilty of: (1) murder

with regard to Williams; (2) manslaughter with regard to McGowan; and (3) aggravated assault

with regard to Mathis. Walker appeals all three convictions.

                                           JURY CHARGE

       Walker raises several complaints with regard to the jury charge. The State responds that

Walker failed to preserve several of the complaints he raises on appeal. The State further responds

that the trial court properly charged the jury.

       A.      Preservation and Standard of Review

       The trial judge has a duty to prepare a jury charge that accurately sets out the law applicable

to the specific offense charged. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007);

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) (“[T]he judge shall, before the argument

begins, deliver to the jury ... a written charge distinctly setting forth the law applicable to the

case.”). The trial judge has the duty to instruct the jury on the law applicable to the case even if

defense counsel fails to object to inclusions or exclusions in the charge. Taylor v. State, 332

S.W.3d 483, 487 (Tex. Crim. App. 2011). A jury instruction on a lesser-included offense,

however, is not “applicable to the case” absent a request by the defense for its inclusion in the jury

charge. See Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010). The judge does not

have a duty, sua sponte, to instruct the jury on lesser-included offenses. Id. Accordingly, a

defendant cannot complain on appeal about the trial judge’s failure to include a lesser-included-

offense instruction that he did not preserve by request or objection: “he has procedurally defaulted

any such complaint.” Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). Similarly, the
                                                  -3-
                                                       04-13-00837-CR; 04-14-00121-CR & 04-14-00122-CR


trial court has no affirmative duty to instruct the jury on unrequested defensive issues because such

defensive issues are not the “law applicable to the case” within the meaning of article 36.14 until

requested. Id. Therefore, “[a] defendant cannot complain on appeal about the trial judge’s failure

to include a defensive instruction that he did not preserve by request or objection.” Id. Finally, if

an appellant’s argument on appeal regarding a defensive issue or lesser-included offense does not

comport with his objection or request at trial, his complaint is not preserved for review. See Penry

v. State, 903 S.W.2d 715, 753 (Tex. Crim. App. 1995); Alcoser v. State, 256 S.W.3d 398, 400

(Tex. App.—San Antonio 2008, no pet.).

       After determining that a claim of jury charge error has been preserved for our review, our

next step is to determine whether the jury charge contains error. Barrios v. State, 283 S.W.3d 348,

350 (Tex. Crim. App. 2009). For example, if the jury charge contains an instruction on a defensive

issue, but the instruction is incorrect, the charge contains error. Vega, 394 S.W.3d at 519. If there

was an objection to the error, reversal is required if the accused suffered “some harm;” however,

if no objection was made regarding the error, reversal is required only if the error caused

“egregious harm.” Id.

       B.      Limiting Instruction

       Walker asserts that the trial court erred in including a limiting instruction on the defensive

issues of self-defense and defense of third person as it related to the charge involving Williams.

The instruction about which Walker complains stated:

               The use of force against another is not justified if the actor sought an
       explanation from or discussion with the other person concerning the actor’s
       differences with the other person while the actor was carrying a weapon unlawfully.

       A charge limiting a defendant’s right to self-defense or defense of third person is properly

given when: (1) self-defense or defense of a third person is an issue; (2) there are facts in evidence

to show that the defendant sought an explanation from or discussion with the victim concerning
                                                 -4-
                                                      04-13-00837-CR; 04-14-00121-CR & 04-14-00122-CR


their differences; and (3) the defendant was unlawfully carrying a weapon. Hernandez v. State,

309 S.W.3d 661, 664 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); Lee v. State, 259 S.W.3d

785, 789 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); see also TEX. PENAL CODE ANN.

§ 9.31(b)(5)(A) (West 2011). On appeal, Walker contends the limiting instruction was improperly

given because the evidence contained no fact to show that Walker sought an explanation from or

discussion with Williams concerning their differences. Instead, Walker asserts he went to the car

lot with Donderick after Williams directed Donderick to go to the car lot.

       In Walker’s confession, however, he states that he went to the car lot in an effort to talk

about the dispute. Walker stated that Williams called his brother, and they were arguing. Walker

stated that he took the phone from his brother in an effort to be a peacemaker and invited Williams

to their house to talk. Walker then stated that he agreed to meet Williams at the car lot to talk.

Walker further stated that he took the gun away from his brother when they arrived at the car lot

and told his brother to let him do the talking. Similarly, Donderick testified that he was going to

the car lot to confront Williams about the stolen money. Regardless of whether Williams chose

the location to continue the discussion, there were “facts in evidence” to show that Walker was

seeking a discussion with Williams in an effort to resolve the situation.

       C.      Inclusion of Parties’ Language in Limiting Instruction

       Walker next contends the trial court erred in including parties’ language in the limiting

instruction. Walker asserts that the differences that existed were between Williams and Donderick,

and the limiting instruction should have applied only if Walker sought a discussion regarding

differences between Williams and himself, not between Williams and Donderick. The following

is the specific language in the charge about which Walker complains:

              … or if you find from the evidence beyond a reasonable doubt that Dorin
       James Walker sought an explanation from or discussion with Larry Williams
       concerning Dorin James Walker’s, (either acting alone or as a party with Donderick
                                                -5-
                                                      04-13-00837-CR; 04-14-00121-CR & 04-14-00122-CR


       Renee Walker), differences with Larry Williams while Dorin James Walker was
       carrying a weapon unlawfully, then you should find against the defendant on the
       issues of self-defense and defense of a third person…

       We reject Walker’s argument for three reasons. First, Walker cites no case law that would

preclude the trial court from including the parties’ language in the limiting instruction, and we

could find none. Second, Walker’s argument assumes that the dispute between Williams and

Donderick had not become a “difference” that Walker had with Williams. Difference is defined

as a disagreement of opinion. Hernandez, 309 S.W.3d at 664. The evidence at trial established

that Walker chose to insert himself in the dispute when Williams began threatening violence

against Donderick. Walker clearly had a disagreement of opinion as to whether Williams should

use violence against his brother Donderick.           Finally, although the charge contained the

parenthetical reference to acting as a party with Donderick, the charge still instructed the jury to

consider “Walker’s” differences with Williams. Accordingly, we overrule this issue.

       D.      Defense of Necessity

       Walker also contends the trial court erred in refusing his request for an instruction on the

defense of necessity pursuant to section 9.22 of the Texas Penal Code. In his brief, Walker argues,

“The jury in this case could well have found that [Walker] acted out of necessity in shooting

Williams to prevent Williams from killing his brother.” The State responds that Walker’s

complaint on appeal does not comport with the request he made at trial. We agree.

       In arguing whether to include a self-defense instruction in the charge because Walker was

illegally carrying a gun in seeking a discussion with Williams about their differences, defense

counsel argued, “His brother had the gun. He took the gun away from his brother out of necessity.”

Defense counsel then made the following request:

             I’d also request a necessity charge for the unlawful carrying of a weapon.
       When the Court puts in there that the unlawful carrying of a weapon description


                                                -6-
                                                       04-13-00837-CR; 04-14-00121-CR & 04-14-00122-CR


       [sic], then it could be a necessity charge applied to that, that there was necessity to,
       uh, unlawfully carry that weapon.

As previously noted, if an appellant’s argument on appeal regarding a defensive issue does not

comport with his objection or request at trial, his complaint is not preserved for review. See Penry,

903 S.W.2d at 753; Alcoser, 256 S.W.3d at 400. In the instant case, defense counsel argued for a

necessity defense with regard to Walker carrying the handgun, not necessity with regard to Walker

shooting Williams. Because the argument on appeal does not comport with the request made at

trial, this complaint is not preserved for our review.

       E.      Defense of Third Party

       Walker next contends the trial court erred in denying his request for an instruction on

defense of third party in the jury charges relating to the shooting of McGowan and Mathis. In

order for Walker to be entitled to the requested defense, however, the record had to contain

evidence that McGowan and Mathis had used or attempted to use force against Donderick. TEX.

PENAL CODE ANN. § 9.33 (West 2011); see also Lee v. State, No. 2014 WL 3734188, at *6 (Tex.

App.—San Antonio July 30, 2014, no pet.); Sanchez v. State, 418 S.W.3d 302, 310 (Tex. App.—

Fort Worth 2013, pet. ref’d). In this case, the record contained no evidence that either McGowan

or Mathis used or attempted to use any force against Donderick. Accordingly, the trial court did

not err in denying the requested defensive instruction.

       F.      Deadly Conduct

       In discussing defense counsel’s request for the trial court to include the lesser-included

offense of deadly conduct in the jury charges relating to the shootings of McGowan and Mathis,

defense counsel argued the evidence established that Walker shot the gun recklessly. The offense

of deadly conduct can be committed in two ways. TEX. PENAL CODE ANN. § 22.05 (West 2011).

First, a person commits the misdemeanor offense of deadly conduct if the person “recklessly


                                                 -7-
                                                      04-13-00837-CR; 04-14-00121-CR & 04-14-00122-CR


engages in conduct that places another in imminent danger of serious bodily injury.” Id. at

§ 22.05(a), (e). Second, a person commits the felony offense of deadly conduct if the person

“knowingly discharges a firearm at or in the direction of one or more individuals.” Id. at

§ 22.05(b), (e). Although defense counsel requested the lesser-included offense of misdemeanor

deadly conduct, Walker complains on appeal of the trial court’s failure to include the lesser-

included offense of felony deadly conduct. Accordingly, because Walker’s complaint on appeal

does not comport with his request at trial, he has not preserved this complaint for our review. See

Penry, 903 S.W.2d at 753; Alcoser, 256 S.W.3d at 400; see also Morris v. State, No. 14-06-00564-

CR, 2007 WL 2089290, at *4 (Tex. App.—Houston [14th Dist.] 2007, Jul. 24, 2007, no pet.)

(holding complaint waived when appellant requested lesser-included offense instruction for felony

deadly conduct but complained that trial court erred in refusing to include lesser-included offense

instruction for misdemeanor deadly conduct) (not designated for publication). Furthermore,

Walker would only be entitled to a charge on the lesser-included offense of felony deadly conduct

if there is some evidence in the record that would permit a rational jury to find that, if Walker was

guilty, he was guilty only of the lesser offense. Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim.

App. 2012). With regard to Mathis, Walker’s testimony established that he intentionally shot at

Williams; therefore, the record contains no evidence that would support a finding that Walker did

not act intentionally in discharging the firearm and acted only knowingly. See Hage v. State, No.

08-10-00270-CR, 2013 WL 1846669, at *6 (Tex. App.—El Paso Apr. 30, 2013, no pet.) (holding

trial court did not err in denying lesser-included offense of felony deadly conduct to charge of

aggravated assault because evidence showed appellant intentionally fired the weapon and no

evidence supported finding that he did not act intentionally) (not designated for publication).

Similarly, with regard to McGowan, “[t]here is no evidence at all that [Walker] did anything other

than cause [McGowan’s] death, so no rational jury could find him guilty of deadly conduct without
                                                -8-
                                                      04-13-00837-CR; 04-14-00121-CR & 04-14-00122-CR


finding him guilty of homicide.” Price v. State, No. 14-11-00378-CR, 2012 WL 1964586, at *2

(Tex. App.—Houston [14th Dist.] May 31, 2012, pet. ref’d) (not designated for publication).

                                STATUS OF JURY DELIBERATIONS

       In his final issue, Walker contends the trial judge erred in entering the jury’s deliberation

room and inquiring about the status of the jury’s deliberations. As Walker’s brief notes, the trial

judge noted on the record each time he spoke with the jury regarding their status during both phases

of the trial. As the State notes, however, defense counsel did not make any objection to the trial

judge making these inquiries.

       In order to preserve a complaint for appellate review, the record must show that the

complaint was made to the trial court by a timely request, objection or motion which was ruled

upon by the trial court. TEX. R. APP. P. 33.1. Because the record does not show that any timely

request, objection, or motion was made when the trial judge mentioned the inquiries, Walker’s

complaint has not been preserved for our review.

                                          CONCLUSION

       The trial court’s judgments are affirmed.

                                                   Sandee Bryan Marion, Justice

DO NOT PUBLISH




                                                -9-
