                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00003-CR



             DUSTI KENNE LEE, Appellant

                            V.

              STATE OF TEXAS, Appellee



        On Appeal from the 102nd District Court
                Bowie County, Texas
            Trial Court No. 12F0202-102




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                          OPINION
       Dusti Kenne Lee admitted that she shot and killed Reggie Williams. During a pretrial

conference, the State told the trial court, “I think it’s pretty clear to everybody, that this is going

to be a self-defense case.” A jury convicted Lee of murder, and she was sentenced to seventy-

five years’ imprisonment.      Lee argues that the trial court erred in refusing to include her

requested jury charge language referencing self-defense and in submitting a jury charge on the

self-defense issue “that misstated the law.” While we find the submitted jury charge erroneous,

we conclude that the error was not harmful to Lee. We affirm the trial court’s judgment.

I.     The Jury Charge Was Erroneous

       Our review of alleged jury charge error involves a two-step process. Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim.

App. 2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Initially, we determine

whether an error occurred and then “determine whether sufficient harm resulted from the error to

require reversal.” Abdnor, 871 S.W.2d at 731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984) (op. on reh’g), reaff’d by Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.

App. 2003).

       “[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the

court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). A trial

court must submit a charge setting forth the “law applicable to the case.” TEX. CODE CRIM.

PROC. ANN. art. 36.14 (West 2007). “The purpose of the jury charge . . . is to inform the jury of

the applicable law and guide them in its application.” Delgado v. State, 235 S.W.3d 244, 249


                                                  2
(Tex. Crim. App. 2007). “It is not the function of the charge merely to avoid misleading or

confusing the jury: it is the function of the charge to lead and prevent confusion.” Id.

           Lee requested the inclusion of the following self-defense instructions, which substantially

tracked the language used in the 2010 Texas Criminal Pattern Jury Charges for Defenses 1:

           Presumption

                   Under certain circumstances, the law creates a presumption that the
           defendant’s belief—that the deadly force he used was immediately necessary—
           was reasonable. A presumption is a conclusion the law requires you to reach if
           certain other facts exist.

                  Therefore, you must find the defendant’s belief—that the deadly force she
           used was immediately necessary—was reasonable unless you find the state has
           proved, beyond a reasonable doubt, at least one of the following:

                    1.       The defendant neither knew nor had reason to believe that Reggie
                             Williams—
                                     a. unlawfully and with force entered, or was attempting to
                             enter unlawfully and with force, the defendant’s occupied
                             habitation, vehicle, or place of business or employment; or
                                     c. was committing or attempting to commit aggravated
                             kidnapping, murder, sexual assault, aggravated sexual assault,
                             robbery, or aggravated robbery;

                    2.       The defendant provoked Reggie Williams; or

                    3.       The defendant, at the time the deadly force was used, was engaged
                             in criminal activity other than a class C misdemeanor that is a
                             violation of a law or ordinance regulating traffic.

                   If you find the state has proved element 1, 2, or 3 listed above, the
           presumption does not apply and you are not required to find that the defendant’s
           belief was reasonable.

                  Whether or not the presumption applies, the state must prove, beyond a
           reasonable doubt, that self-defense does not apply to this case.

1
    State Bar of Tex., Texas Criminal Pattern Jury Charges: Defenses § B15.3 (2010).
                                                          3
            Application of Law to Facts

                   If you have found that the state has proved the offense beyond a
            reasonable doubt, you must next decide whether the state has proved that the
            defendant’s conduct was not justified by self-defense.

                   To decide the issue of self-defense, you must determine whether the state
            has proved, beyond a reasonable doubt, one of the following:

                     1.      The defendant did not believe his conduct was immediately
                             necessary to protect himself against Reggie Williams’s use or
                             attempted use of unlawful deadly force; or

                     2.      The defendant’s belief was not reasonable.

                    You must all agree that the state has proved, beyond a reasonable doubt,
            either element 1 or 2 listed above. You need not agree on which of these elements
            the state has proved.

(Emphasis added). This proposed charge correctly sets forth the State’s burden of persuasion

and tracks the language of Section 9.32 of the Texas Penal Code. 2



2
    Section 9.32 of the Texas Penal Code, titled Deadly Force in Defense of Person, reads:

            (b)     The actor’s belief under Subsection (a)(2) that the deadly force was immediately
            necessary as described by that subdivision is presumed to be reasonable if the actor:

            (1)      knew or had reason to believe that the person against whom the force was used:
                     (A)      unlawfully and with force entered, or was attempting to enter unlawfully and
                     with force, the actor’s occupied habitation, vehicle, or place of business or employment;
                     (B)      unlawfully and with force removed, or was attempting to remove unlawfully and
                     with force, the actor from the actor’s habitation, vehicle, or place of business or
                     employment; or
                     (C)      was committing or attempting to commit an offense described by Subsection
                     (a)(2)(B);

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

            (3)       was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is
            a violation of a law or ordinance regulating traffic at the time the force was used.

                                                            4
       The charge submitted to the jury on the self-defense issue removed the underlined

language related to the State’s burden of persuasion and stated instead:

             The defendant’s belief that deadly force was immediately necessary is
       presumed to be reasonable if:

       The defendant neither knew nor had reason to believe that Reggie Williams

                1.    unlawfully and with force entered, or was attempting to enter
                unlawfully and with force, the defendant’s occupied habitation, vehicle, or
                place of business or employment; or

                         a.      was committing or attempting to commit aggravated
                         kidnapping, murder, sexual assault, aggravated sexual assault,
                         robbery, or aggravated robbery;

                2.    The defendant provoked Reggie Williams; or

                3. The defendant, at the time the deadly force was used, was engaged in
                criminal activity other than a class C misdemeanor that is a violation of a
                law or ordinance regulating traffic.

(Emphasis added).
       Texas law allows a person to use deadly force if he reasonably believes such force is

immediately necessary to protect himself from the other person’s use of deadly force. TEX.

PENAL CODE ANN. § 9.32. Many murder cases revolve around whether the actor was reasonable

in that belief when causing a death.            The jury is instructed that the defendant’s action is

        (c)     A person who has a right to be present at the location where the deadly force is used, who
       has not provoked the person against whom the deadly force is used, and who is not engaged in
       criminal activity at the time the deadly force is used is not required to retreat before using deadly
       force as described by this section.

       (d)      For purposes of Subsection (a)(2), in determining whether an actor described by
       Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may
       not consider whether the actor failed to retreat.

TEX. PENAL CODE ANN. § 9.32 (West 2011).

                                                        5
presumed to be reasonable when certain conditions are met. In recent years, the Legislature has

made a change in this instruction, which apparently was intended to provide more protection to

persons in their own homes. The general notion is that an individual who is protecting herself or

her family from an intruder is presumed to have acted reasonably in the use of deadly force if the

intruder is attempting to enter the individual’s habitation or commit certain other specific crimes.

Here, the instruction given to the jury completely reversed the legal requirement and instructed

that even if Lee neither knew nor had reason to believe that Williams was trying to enter her

home, her action in shooting Williams was presumptively reasonable. Essentially, this would

have allowed the jury to find Lee was presumptively reasonable in killing Williams even if

Williams was lawfully on the property and was not attempting to commit a crime. That is not

the law. But in this case, in spite of the erroneous instructions on self-defense, the jury found

Lee guilty.

       Self-defense is not an affirmative defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.

Crim. App. 2003). The defendant only has the burden of producing evidence that raises self-

defense; the State still has the “burden of persuasion to disprove the raised defense.” Id. “The

burden of persuasion is not one that requires the production of evidence, rather it requires only

that the State prove its case beyond a reasonable doubt.” Id.; see Muhammad v. State, 911

S.W.2d 823, 828 (Tex. App.—Texarkana 1995, no pet.). The Texas Criminal Pattern Jury

Charges for Defenses includes language referring to the State’s burden of persuasion. State Bar

of Tex., Texas Criminal Pattern Jury Charges: Defenses §B15.3 (2010).




                                                 6
         Other instructions in the trial court’s charge correctly reference the State’s ultimate

burden of production in its case-in-chief and the burden of persuasion with respect to self-

defense. 3 Thus, Lee does not complain about the exclusion of the burden of persuasion language

from the excerpts referenced above. Instead, Lee argues, “The way this jury charge reads,

Dusti’s use of deadly force is presumed reasonable if she knew Reggie lawfully entered her

house or if she did not know Reggie was committing or about to commit one of the crimes

outlined in (a).” Lee is correct. The trial court’s charge in this case instructed the jury, in

relevant part, that Lee was entitled to the presumption of reasonableness if (1) Lee neither knew

nor had reason to believe that Williams was unlawfully and forcibly entering or attempting to

enter her home, (2) Lee neither knew nor had reason to believe that she provoked Williams, or

(3) Lee neither knew nor had reason to believe that she was engaged in criminal activity other

than a traffic violation at the time the deadly force was used. Here, the State acknowledge[d]

that as a result of typographical errors, the jury charge did not properly track the language of

Texas Penal Code Section 9.32. 4 We agree the charge was erroneous, but not as a result of

typographical errors.

II.      The Jury–Charge Error Claim Was Preserved

         Although the State concedes error in the jury charge, it argues that the error was not

raised before the trial court. The level of harm that must be shown as having resulted from the

3
 The court instructed, “The burden of proof is upon the State and never shifts to the Defendant throughout the course
of the trial.”
4
 The State suggested that the instruction could be corrected by replacing the word “if” with the word “unless.”
However, this modification does not correct the inappropriate use of the phrase “[t]he defendant neither knew nor
had reason to believe that Reggie Williams” to modify Lee’s entitlement to the presumption of reasonableness in
Sections 9.32(b)(2) and (3).
                                                         7
erroneous jury instruction depends on whether the appellant properly objected to the error.

Abdnor, 871 S.W.2d at 732. When a proper objection is made at trial, reversal is required if

there is “some harm” “calculated to injure the rights of defendant.” Id.; see Almanza, 686

S.W.2d at 171. But, when the defendant fails to object to the charge, we will not reverse for

jury-charge error unless the record shows “egregious harm” to the defendant. Ngo, 175 S.W.3d

at 743–44 (citing Almanza, 686 S.W.2d at 171); see also Bluitt v. State, 137 S.W.3d 51, 53 (Tex.

Crim. App. 2004). In determining whether the error caused egregious harm, we must decide

whether the error created such harm that the appellant did not have a “fair and impartial trial.”

TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006); see Allen v. State, 253 S.W.3d 260, 264

(Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171; Boones v. State, 170 S.W.3d 653, 660

(Tex. App.—Texarkana 2005, no pet.). “Neither the State nor the defendant has a burden to

prove harm.” Reeves v. State, No. PD-1171-12, 2013 WL 5221142, at *2 (Tex. Crim. App. Sept.

18, 2013).

       In order to preserve error relating to a jury charge, there must either be an objection or a

requested charge. Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996). Texas Rule

of Appellate Procedure 33.1 requires that a complaint be made “with sufficient specificity to

make the trial court aware of the complaint, unless the specific grounds were apparent from the

context.” TEX. R. APP. P. 33.1(a)(1)(A). “No talismanic words are needed to preserve error as

long as the court can understand from the context what the complaint is.” Clark v. State, 365

S.W.3d 333, 337 (Tex. Crim. App. 2012).




                                                8
       Lee complained of the “omission of certain parts on Page 6 of the defense’s proposed

charge.” This page included Lee’s proposed charge on the issue of self-defense, which included

the State’s burden of persuasion. The trial court explained:

              THE COURT: . . . I think specifically the part that I thought was
       extremely confusing . . . was the part that basically reads, therefore, you must find
       the defendant’s belief that the deadly force she used was immediately necessary,
       and this was the part I didn’t like, was reasonable unless you find the State has
       proved beyond a reasonable doubt at least one of the following: And then it goes
       into basically three things the State, I think, must show. That part is all in the
       charge that the State’s prepared. The only part that I think I’ve left out, or I
       ordered to be left out, was that was reasonable unless you find the State has
       proved beyond a reasonable doubt. And, [Mr. Williams], it was my opinion that
       Page 7 or 8 of the charge the State submitted pretty well took care of that in much
       simpler language. Was that not what you and I discussed?

               [Defense Attorney]: Yes, Your Honor.

               THE COURT: Pretty much, I mean --

               [Defense Attorney]: That was our discussion and just --

               THE COURT: And you still objected to it, I understand that.

              [Defense Attorney]: Yes, Your Honor. And just for record purposes, the
       charge that the defense submitted tracks the State Bar’s pattern jury charges on
       defenses almost word for word, except where you have to fill in the specific
       applicability to this case or the facts in this case. It’s from the 2011 pattern jury
       charge book on defenses from the State Bar of Texas.

               THE COURT: Yes. You showed me that. I’m aware of that. Again, I
       just think it’s way too confusing. I thought the language that the State included in
       there took care of that, maybe in two different places in the charge, but I thought
       it was much more simple put. And it, in my opinion, allowed the jury to reach the
       same conclusion that she was acting in self-defense.

       Lee argued that the trial court’s charge contained “omissions of certain parts.” Although

she failed to specify what the omissions were, the trial court understood that the complaint was

                                                9
related to the State’s burden of persuasion. The State concedes as much but maintains that Lee’s

“objection [at trial] was not that the charge misstated the law.” Because the complaint was that

“the presumption related to the use of deadly force had been omitted from the charge,” the State

argues that Lee cannot raise a point of error on the “misstatement of the law.”

       However, the court also noted that the proposed charge “goes into basically three things

the State, I think, must show,” and believed “[t]hat part is all in the charge that the State’s

prepared. . . . in much simpler language.” The “three things” referenced by the court were the

misstatements of law regarding situations which would entitle Lee to the presumption of

reasonableness.   The court referenced an unrecorded bench conference in which Lee “still

objected” to the court’s charge despite the judge’s discussion that “the charge the State submitted

pretty well took care of” the presumption of reasonableness instruction “in much simpler

language.” Thus, it appears that the trial court specifically included the misstatements

complained of after noting Lee’s disagreement with its wording.

        Although the statute governing the preservation of jury-charge error specifies that “in no

event shall it be necessary for the defendant or his counsel to present special requested charges to

preserve or maintain any error,” Lee submitted the requested charges which contained the correct

language referencing the presumption of reasonableness. TEX. CODE CRIM. PROC. ANN. art.

36.14 (West 2007). We conclude that error has been preserved.




                                                10
III.   No Actual Harm Resulted From the Jury Charge Error

       As we have previously stated, “The harm caused by the error must be considered ‘in light

of the entire jury charge, the state of the evidence, including the contested issues and the weight

of probative evidence, the arguments of counsel and any other relevant information revealed by

the record of the trial as a whole.’” Kihega v. State, 392 S.W.3d 828, 835 (Tex. App.—

Texarkana 2013, no pet.) (quoting Almanza, 686 S.W.2d at 171); (citing TEX. CODE CRIM. PROC.

ANN. art. 36.19). Additionally, Lee must have suffered actual harm, not merely theoretical harm.

Id.

       A.      The Jury Charge

       We first look to the court’s jury charge. The charge allowed the jury to presume that Lee

acted reasonably even if she knew or had reason to believe that Williams was lawfully entering

her home and was not committing or attempting to commit a crime. This written instruction was

corrected when the court read the charge to the jury, which tracked Section 9.32 of the Texas

Penal Code:

       The defendant’s belief that deadly force was immediately necessary is presumed
       to be reasonable if the defendant knew or had reason to believe that Reggie
       Williams, one, unlawfully and with force entered or was attempting to enter
       unlawfully and with force the defendant’s occupied habitation, vehicle, or place
       of business or employment, or, A, was committing or attempting to commit
       aggravated kidnapping, murder, sexual assault, aggravated sexual assault,
       robbery, or aggravated robbery.

Moreover, the written instruction increased, rather than lessened, the State’s burden of

persuasion.




                                                11
           In order for the presumption of reasonableness to apply, the Texas Penal Code requires a

finding that the actor did not provoke the victim and was not involved in criminal activity

described in Section 9.32(b)(3). See TEX. PENAL CODE ANN. § 9.32(b)(3). The court’s charge,

however, only required the jury to find that Lee did not believe she provoked the victim or did

not believe she was engaged in criminal activity. 5 The court’s instructions made the self-defense

justification more attainable for Lee. 6 Thus, the misstatements of the law that Lee complains of

actually favored her at trial and cannot be seen as harmful.

           The jury charge also contained the following proper language, mitigating the error caused

by the erroneous submission:

                   A person who has a right to be present at a location where the person uses
           deadly force against another is not required to retreat before using deadly force in
           self-defense if both:

                    1.      the person with the right to be present did not provoke the person
                         against whom the deadly force is used; and

                    2.        the person is not engaged in criminal activity at the time the deadly
                         force is used.

                    ....

           When a person is attacked with unlawful deadly force, or he reasonably believes
           he is under attack or attempted attack with unlawful deadly force, and there is
5
    Lee argues,

           The way the trial court read the charge is a misstatement of the law because the jury was permitted
           to find that [Lee’s] actions were presumed reasonable if she knew or had reason to believe that
           Reggie Williams . . . (2) the defendant provoked Reggie Williams, or (3) the defendant at the time
           the deadly force was used was engaged in criminal activity other than a Class C misdemeanor that
           is a violation of the law or ordinance regulating traffic. This is incorrect, confusing, and a
           misstatement of the law.
6
 The jury was only required to make a finding on provocation or criminal activity based on weighing Lee’s belief as
to whether she engaged in conduct that would remove the presumption of reasonableness.
                                                           12
        created in the mind of such person a reasonable expectation or fear of death or
        serious bodily injury, then the law excuses or justifies such person in resorting to
        deadly force by any means at his command to the degree that he reasonably
        believes immediately necessary, viewed from his standpoint at the time, to protect
        himself from such attack or attempted attack.

                 ....

        Now, if you find from the evidence beyond a reasonable doubt that on the
        occasion in question the defendant, DUSTI LEE, did commit the offense of
        murder, as alleged in the indictment, but you further find from the evidence, as
        viewed from the standpoint of the defendant at the time that from the words or
        conduct, or both, of Reggie Williams it reasonably appeared to the defendant that
        her life or person was in danger and there was created in her mind a reasonable
        expectation or fear of death or serious bodily injury from the use of unlawful
        deadly force at the hands of Reggie Williams, and that acting under such
        apprehension and reasonably believing that the use of deadly force on [her] part
        was immediately necessary to protect herself against Reggie Williams’s use or
        attempted use of unlawful deadly force, she shot Reggie Williams with a gun, or
        if you have a reasonable doubt thereof, then you should acquit the defendant on
        the grounds of self-defense on said occasion and under the circumstances, then
        you should give the defendant the benefit of the doubt and say by your verdict not
        guilty. 7

        When considered as a whole, we find that the jury charge, while erroneous, was not

harmful to the defendant, and the errors in the charge resulted in a more favorable jury charge for

the defendant.

                 B.       The State of the Evidence

        The evidence as to whether Lee shot Williams to protect herself was contested. Lee

testified that she shot Williams in self-defense. The statements of an eyewitness and an inmate

supported this defense. Two other eyewitnesses and five inmates testified that Lee did not shoot
7
 “The application paragraph is what explains to the jury, in concrete terms, how to apply the law to the facts of the
case. We look at the wording of the application paragraph to determine whether the jury was correctly instructed in
accordance with the indictment and also what the jury likely relied upon in arriving at its verdict, which can help
resolve a harm analysis.” Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013).

                                                        13
Williams in self-defense. However, all of the eyewitness testified that Lee was their drug dealer,

removing her entitlement to the presumption of reasonableness. 8

        Lee testified that Williams, who likely purchased drugs from a former roommate, visited

the home at a time when she was entertaining Roberts, Porsha Jones, and Ronnie Humble. Lee

claimed that Williams, who “had a problem with” Jones and Roberts, “was being real loud and

demanding me to run [Roberts and Jones] off.” Williams was “trying to get $50 . . . to get his

wife out of jail.” Lee denied Williams the money and refused to ask her company to leave,

causing Williams to “get madder and madder.” She advised Williams, “[T]he best thing for you

to do, is to leave and not ever come back, because if you’re going to come here with this type of

attitude, I don’t need this type of attitude here.” Lee pointed to a “no trespassing” sign affixed to

her mailbox and told Williams he would be trespassing if he returned.

        Lee testified that after this encounter, “everybody left,” and she began cleaning her home.

While cleaning, Lee heard her door open, picked up her gun because she was startled, saw

Williams “coming in . . . walking rather fast,” and “confronted him as to why.” Lee testified,

“[I] demanded to know why he was back there because I had told him to leave and to not return.”

Lee testified that Williams was “hitting his chest and throwing his arms out and telling me he

couldn’t believe that I was acting this way towards him.” She asked Williams to leave “two to

three times at least.” According to Lee, when Williams saw her gun, he said that “he’d be back

the next day with his [gun].” Lee testified, “As far as him coming towards me . . . to taking an



8
Mary Denton, the victim’s sister-in-law, testified that Williams went to Lee’s house to buy drugs for Denton. Jason
Roberts testified that he and Lee were both “doing methampethamines that day.”
                                                        14
actual step, I can’t 100 percent say for sure he was taking a step, but my perception he was

coming to me.” However, she then said, “[H]e lunged, and I actually had pulled the trigger.”

       Jones testified that she witnessed the shooting. She explained that she was in Lee’s home

along with Roberts and Humble because Lee was their methamphetamine dealer.               Jones

corroborated the argument between Lee and Williams during the first encounter but stated the

argument ensued when Lee refused to give Williams drugs on credit. She said, “Hours later,

[Williams] called asking if he can come back, and [Lee] said yeah.” According to Jones,

Williams was returning in hopes of exchanging a ring for Lee’s drugs. Jones testified that Lee

shot Williams while the two were “just talking, conversation.” Jones said there was no yelling,

screaming, lunging, or other aggressive behavior being exhibited by Williams. Lee “kind of just

walked to the, you know, outside her door and peeked her head in the living room and was like,

you know, come look at all this blood.” Jones said the shooting did not “bother” Lee. Before

Jones left, Lee asked her to falsely confirm a story of self-defense if asked.

       Roberts corroborated Jones’ version of events, adding that Lee informed Roberts that

Williams would not be leaving Lee’s home. Roberts understood this statement to mean that Lee

was going to kill Williams. While the two were having a conversation, Roberts testified that

while Lee and Williams were having a conversation, Lee said, “[Williams], I told you not to

come back.” Roberts continued “[T[hat’s when she drew the gun. And then [Jones] put her head

in my, you know, in my side, and then [Lee] fired one shot.” According to Roberts, Williams

asked them to “help him” before he “hit the wall and the chair and then ran through her bedroom

door.” Roberts testified that Lee was “just laughing, walking back and forth laughing, talking

                                                 15
about the blood that was running from under the door. And then she said she was going to let

him bleed out before she called the police.” Roberts heard Lee ask Jones “if she would say that

he tried to jump on her so it would be . . . self-defense.”

       Humble testified that Williams and Lee “got into it a little bit, and he turned around and

kind of lunged at her a little bit. And then that’s when she shot him.” Although this aided Lee’s

defense, Humble testified that Lee gave him drugs in exchange for a ride in his vehicle.

       The jury next heard from a series of inmates who testified about statements made by Lee

during her pretrial incarceration. Inmate Kenyetta Nicole James testified that Lee “was bragging

about how she killed . . . a bastard” and “just left him for dead.” James said that Lee “was glad

she killed him” and did not appear to be upset. Inmate Jennifer Lemmen testified that Lee “said

that she had shot the nigger and that the mother f***er had to go in her room and die and that he

said that he was going to get his piece, his gun, and that he would be back. And so [Lee] said

that she got her piece, her gun, and that she waited for him.” Lee told Lemmen that she

murdered Williams and that she was going to get away with it.

        The remaining inmate witnesses, Kimberley Minniefield, Jacqueline Fagan, Donna Rae

Harris, and Kathy Hamilton, also reported similar statements made by Lee. Each inmate witness,

except for Hamilton, testified that Lee never claimed she shot Williams in self-defense.

Hamilton testified, “I’m going to be honest with you. She said he came towards her. She kept

telling him to get out, and, you know, he came back or something.” Fagan testified that Lee

believed Williams “deserved to die” because Lee thought he was stealing from her and “was

trying to play her.”

                                                  16
       Although a few witnesses supported the self-defense theory, all of the eyewitnesses to the

shooting claimed that Lee was actively distributing drugs that day; thus, she would not be

entitled to the presumption of reasonableness. The strength of the evidence weighs against a

finding of some harm.

       C.     Arguments of counsel

       Lee’s counsel set forth the correct law during his voir dire of the prospective jurors. The

misstatement in the jury charge was also corrected by Lee’s counsel when he argued,

        The law allows us to defend ourselves in our own home to a greater extent than it
allows us to defend ourselves anywhere else. They have to disprove that. They have to
prove to you beyond a reasonable doubt that she was not allowed to be there, that she
wasn’t present lawfully. They have to prove to you beyond a reasonable doubt that he
didn’t enter that home unlawfully with force. . . . He entered that home unlawfully. He
knew he didn’t have the right to be there. Even their witnesses, that’s the part we all
agree on, is that they were there at one point in time, and they heard her say, never come
back, you’ll be trespassing. That is without question in this trial. The law presumes, the
law presumes that she acted reasonably. You don’t -- the law takes it out of your hands.
The law tells you that unless they prove she wasn’t there lawfully, and she didn’t -- she
wasn’t there lawfully, and she was engaged, and they can’t prove -- they have to prove
that she was engaged in criminal activity at the time the force was used. If they don’t
prove to you beyond a reasonable doubt either one of those two things, it takes it out of
your hands. The law tells you, you’re supposed to presume that she acted reasonably.
You don’t have to even determine if it was reasonable. All you have to determine is did
they prove to me that she wasn’t in her home lawfully, did they prove to me beyond a
reasonable doubt that he was there lawfully. They have to prove to you that he was there
lawfully and that he didn’t enter that home unlawfully with force. Then they have to
prove to you beyond a reasonable doubt that she was involved in criminal activity at the
time the force was used. They can’t do that. There was no evidence she was involved in
any criminal activity. The police found nothing. She signed a consent to search. They
didn’t find anything. They didn’t find anything. So it’s out of your hands, ladies and
gentlemen. She is presumed reasonable. The law allows us to do that. The law allows
each and every citizen of the great State of Texas to be able to defend ourselves in our
own home and doesn’t let anybody second-guess them unless the State can prove beyond
a reasonable doubt, beyond a reasonable doubt those things I just told you about. And
they’re not going to be able to do this in this case.

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       The misstatements of law in the jury charge were corrected during voir dire and clarified

in closing argument. The arguments of counsel weigh against a finding of harm.

       After reviewing the entire jury charge, the state of the evidence—including the contested

issues and the weight of the probative evidence; the arguments of counsel, and other relevant

information, we conclude that the record fails to demonstrate any harm calculated to injure Lee’s

rights. Lee’s point of error is overruled.

IV.    Conclusion

       We affirm the trial court’s judgment.




                                                    Jack Carter
                                                    Justice

Date Submitted:        November 4, 2013
Date Decided:          November 22, 2013

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