AFFIRM; and Opinion Filed January 24, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00124-CR

                            PATRICK LYNN RUSSELL, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 292nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1600779-V

                               MEMORANDUM OPINION
                       Before Justices Lang-Miers, Fillmore, and Stoddart
                                Opinion by Justice Lang-Miers

       Appellant was convicted of capital murder and sentenced to life imprisonment without the

possibility of parole. He appeals raising five issues: (1) whether the evidence was sufficient to

disprove that he killed Tavares Tell in self-defense, (2) whether the evidence was sufficient to

disprove that he killed Kenny Garcia in self-defense, (3) whether the evidence was sufficient to

prove that the murder was committed during the course of robbery or attempted robbery, (4)

whether the trial court erred and he suffered egregious harm because the court did not instruct the

jury that self-defense applies to robbery, and (5) whether the trial court’s jury charge authorized a

non-unanimous capital murder verdict. We affirm.
                                                      Background

           On September 5, 2013 Tavares Tell, a/k/a “Black,” and Kenny Garcia, were shot to death

while sitting in a parked car at an east Dallas apartment complex in an apparent “drug deal gone

bad.” Earlier that day, appellant and three accomplices – his brother Charles (a/k/a Carl) Russell,

Dewen Knight and Tevynn Boone1 – drove to Dallas in a borrowed red Nissan Versa from

Shreveport, Louisiana with the purported purpose of purchasing 9 ounces of cocaine for $8000

from Tell. All four accomplices were ultimately charged with the deaths of Tell and Garcia. Only

Boone testified at trial.

Setting Up the Drug Transaction

           Appellant had previously told Boone that he wanted a good price on some drugs. Boone

told appellant that he knew where to get some. Boone had recently lived in the Dallas area and

had some working knowledge of the “Dallas cocaine scene.” Boone had sold drugs in the Dallas

area and had also purchased drugs from Tell, a low level drug dealer selling mainly marijuana and

cocaine. Appellant told Boone “whenever we get a ride, we’ll go down there and pick it up.”

           Knight arranged to borrow a friend’s red Nissan Versa. He told her that he was going to

DeBerry, Texas with appellant and Russell and that he would be back.

           Appellant called Boone and told him that he had obtained a vehicle to take them to Dallas.

Appellant picked Boone up at his house. They, along with Knight and Russell, left Shreveport

about 5:00-5:30 p.m. Boone knew that the drive to Dallas takes between 2 hours and 2 hours and




    1
        Appellant’s brother Charles a/k/a Carl Russell will be referred to in this opinion as Russell.




                                                            –2–
15 minutes. Boone both called and sent text messages to Tell to arrange the drug transaction during

the drive.

           On the way to Dallas, appellant, who was driving the borrowed car, stopped at a travel

center off Interstate 20 near Canton, Texas. A photograph taken of Russell and Knight at that

location showed Russell holding a handgun with an extended magazine on the clip; the extension

would give the gun more “capacity” for bullets.2 Russell was wearing a white t-shirt and Knight

had on a red baseball cap with the letter “A.” This photograph was later recovered by the police

during a “dump” of Russell’s cell phone.

           Boone saw appellant with some money when appellant paid for the gas at the travel center

but he did not know how much money appellant had and it did not appear to be a large amount of

money. Boone, however, was not worried about the money because appellant had never given him

a “bad impression on money.” For his role in this transaction, appellant was going to take Boone

to check on his sick mother and give him some money, which Boone thought would probably be

a few hundred dollars.

           Once they arrived in the Dallas area, the four accomplices went to the Oats Creek

Apartments in Mesquite, Texas, where Boone had previously lived. They were supposed to meet

Tell there. When Boone called Tell to say that they had arrived, Tell said he was at his son’s

football game. They waited for about three hours before re-connecting with Tell.

Circumstances Leading to the Shootings

           During the time when Boone was calling and texting, Tell’s roommate, Chris Mutz, noticed

that Tell had been acting “really weird.” He said “These guys keep calling me, keep calling me.”




   2
       According to the lead detective, the extension gives this weapon “a bigger count on how many rounds you can actually fire.”


                                                                     –3–
Prior to leaving his home, Tell told Mutz to “stay home and wait for his call if he ran into some

trouble.” Tell left the house about 10:00 p.m. He had ingested cocaine earlier and was “really

antsy, nervous, kind of anxious.” Tell was known to have a .9 millimeter Glock pistol.

       Tell met up with the four accomplices on Interstate 635 in traffic around 10:00 p.m. Boone

was now driving the borrowed car. Appellant and his accomplices were to follow Tell to some

apartments in East Dallas because Tell did not have the full amount of the drugs appellant wanted

to buy and needed to procure more.

       The accomplices followed Tell from Interstate 635 to Interstate 30, exiting on East Grand.

They continued to follow Tell to a neighborhood where Tell pulled over to the side of the road.

Boone got out the car and went to Tell’s car; Tell asked Boone if they wanted to continue to follow

him or have appellant get in Tell’s car. Appellant got in Tell’s car and, with Boone driving the

borrowed Versa, they continued to follow Tell to some apartments. On the way to the apartments,

another person, subsequently identified as Kenny Garcia, got in the back seat of Tell’s car. Boone

had never seen Garcia before. Garcia kept a Glock firearm and was into some “bad stuff,” i.e.,

selling drugs.

The Shootings

       Once at the apartment complex, Tell pulled into a parking spot; Boone followed, parking

about two spots away from Tell. At some point Russell, who had been in the back seat of the Versa

with Knight, got out of the car and walked over to Tell’s car. He was gone 15-20 minutes. Boone

occupied himself by scrolling through his phone. He looked over a few times and saw Tell and

Boone’s accomplices laughing and “stuff like that.” It seemed to Boone like everything was good.

       Russell got into the backseat of Tell’s car and about thirty seconds later Boone heard a

gunshot. Boone started the car, and was pulling it around when he heard a series of gunshots. He



                                               –4–
could not really say how many, but it was more than five. About thirty seconds or so later, he heard

another series of gunshots, possibly six or seven.

Flight from the Scene

        When Boone pulled the car around in the parking lot to try to get out, Russell ran back to

the car. Russell was holding his stomach, had blood on his shirt, and was asking to be taken to the

hospital. It was clear that he had been shot. Russell got into the passenger seat of the Versa. After

about thirty seconds or so there were another series of gunshots. Then appellant jumped in the car

and said that Boone had to get his little brother to the hospital. Appellant had a balled up white t-

shirt with him.

        Boone did not want to take Russell to either Baylor or Parkland because he thought they

were too close to the apartments but wanted to get Russell to a hospital off the George Bush

turnpike. Instead of taking Russell to a hospital, they dropped off Russell and Knight at a gas

station at Jupiter and Interstate 635. Knight volunteered to stay with Russell and Knight ran in

and called 911.

        Boone drove appellant back to Shreveport where they arrived between midnight and

probably closer to 1:00 a.m. They rode primarily in silence. When Boone asked appellant what

happened, appellant said “he shot my little brother.” Appellant also told Boone that he and Tell

had struggled over the firearm and that appellant was able to disarm Tell and use his own gun

against him. Boone saw what looked like two black guns in the rolled up t-shirt. Boone did not

know what became of those guns.

        Boone assured appellant that he would keep his mouth shut and they went their separate

ways. Boone had never been in a situation like this before and he was scared of both appellant and

of the police.



                                                –5–
         Appellant returned the borrowed car to its owner in Shreveport about 2:00 a.m., telling her

that his brother had been shot.

Police Response and Investigation

         Two women who both lived either at or near the apartment complex heard the gunshots

and called 911. One woman saw a young man wearing a white t-shirt; he was bending over and

said he was shot. Both women described the gunfire as sporadic, with pauses between groups of

shots.

         Dallas police officer William McCluskey responded to the shooting call at the apartment

complex about 11:00 p.m. Tell was in the driver’s seat and Garcia was in the back passenger side

seat of a black Ford Focus. They had both sustained multiple gunshot wounds. Tell was dead.

Garcia was transported to a hospital by paramedics and later pronounced dead.

         The officer saw that Tell’s seat was reclined back. His phone was in his lap and his shoes

were on the floorboard next to his feet. It was apparent that there had been a big gun battle because

there were fired casings all around the car and live rounds on the ground. It was later determined

that at least three guns had been involved.

         The front driver’s seat had cocaine residue. A piece of what ultimately proved to be rock

cocaine weighing 42.30 grams was found under Tell’s body. Cocaine in an amount of

approximately 28.2 grams was found in Garcia’s pocket at the hospital. The police believed these

amounts were indicative of drug transactions. In the lead detective’s opinion, it would take a lot

of money to buy this large amount of drugs. The presence and amount of the drugs confirmed in

the detective’s mind that a drug transaction was occurring at the time the shooting took place.

         A Glock .9 millimeter firearm was found on the right rear floorboard of the vehicle near

where Garcia had been sitting. From this, the police concluded that Garcia had been armed. Also

found in the car was a recoil spring from a Glock firearm and an unfired bullet; this indicated to
                                                –6–
the police that the gun may have malfunctioned, though it was later found to be mechanically

functional. It was subsequently determined that six cartridge cases were fired by this gun. Nine

cartridge cases were all fired from the same gun, but not from the recovered Glock. Eight more

cartridge cases were fired from the same gun, but not from the recovered Glock or from the gun

which had fired the nine cartridge cases.

       While the Dallas police were working the shooting scene at the apartment complex, a call

came out that the Garland police had reported a gunshot victim and another individual at the

parking lot of a 7-Eleven on Shiloh and LBJ. The gunshot victim was Russell, appellant’s brother.

There were reports that a small red car dropped Russell off along with another man, Knight, who

was wearing the same red baseball cap with an “A” as he had worn in the photograph taken with

Russell that showed the gun with the extended clip. Both Russell and Knight were arrested. Knight

subsequently tested negative for gunshot residue on his hands.

       It was later determined that the cause of death for Tell and Garcia was multiple gunshot

wounds. Tell suffered twelve different gunshot wounds while Garcia had eight different gunshot

wounds.

       Both Tell and Garcia tested positive for gunshot residue. These results indicated that they

either fired a firearm, were in the vicinity of the firearm when it was fired, or that they handled a

firearm or firearm component that was previously fired or had gunshot residue on it. None of Tell’s

wounds had any stippling, which could mean either that there was something interposed between

Tell and the gun, or that the gunshots were fired at a distance of more than three feet. Only one of

Garcia’s wounds had very sparse stippling, indicating a close proximity to the gun which shot him.

       No drugs or alcohol were found in Garcia’s body. Tell’s toxicology test results were

positive for cocaine and substances indicating marijuana use. The levels of cocaine were consistent



                                                –7–
with use in the hours prior to his death. Because marijuana has a very long half-life, however, it

could not be determined if Tell had used marijuana that day or several days prior to the shooting.

         Tell’s car was processed for both fingerprints and DNA. Some of the fingerprints from

Tell’s car were identified as appellant’s. Specifically, six of appellant’s fingerprints prints were

found in various places on the exterior passenger side of Tell’s car. Appellant was also a

contributor of some of the DNA found in Tell’s car.

         The owner of the red Versa later learned that her car may have been involved in this

shooting. She contacted the detective in charge, telling him that it was appellant who had returned

her car to her. The Versa was processed for evidence. The car tested positive for the presence of

blood.

Statements Appellant Made in Jail

         Jeffrey Arrington, an inmate with the Dallas County jail, had a conversation with appellant

in which appellant asked Arrington what the difference was between physical evidence and

circumstantial evidence; he was worried about “the fingerprints.” Arrington knew appellant was

referring to his “case of capital murder during the commission of an aggravated robbery.”

Arrington also claimed to have heard appellant make the following remarks: “I should have

whacked the bitch while I had the chance;” and “Damn, if I would have gotten rid of the hoe, I

wouldn’t be sitting here now.” Appellant also talked about how he was going to “have to take care

of his business in East Dallas and cap a hoe because of the disrespect.”

                                     Rejection of Self-Defense

         In issues one and two, appellant challenges the sufficiency of the evidence to support the

jury’s implied rejection of his claims of self-defense regarding the homicides of Tell and Garcia.

The jury was charged on the law of self-defense and the self-defense theory was argued by both



                                                –8–
the prosecutor and by defense counsel during final jury argument. By returning a verdict of guilty

on the charge of capital murder, the jury impliedly rejected the self-defense theory.

       A person commits capital murder if he intentionally or knowingly commits murder and

murders more than one person during the same criminal transaction. TEX. PENAL CODE §

19.03(a)(7)(A). Capital murder is also committed if a person intentionally commits murder during

the course of committing or attempting to commit robbery. TEX. PENAL CODE § 19.03(a)(2).

Appellant does not challenge the sufficiency of the evidence to support the jury’s finding of the

essential elements of the murder portion of the offense beyond a reasonable doubt. Instead, he

challenges the sufficiency of the evidence to support the jury’s rejection of his self-defense claim.

Self-Defense

       A person is justified in using deadly force against another (1) if he would be justified in

using force against that person under Section 9.31, and (2) when and to the degree he reasonably

believes the deadly force is immediately necessary to protect himself against the other person’s

use or attempted use of unlawful deadly force. TEX. PENAL CODE §§ 9.31(a), 9.32(a). “Deadly

force” means “force that is intended or known by the actor to cause, or in the manner of its use or

intended use is capable of causing, death or serious bodily injury.” TEX. PENAL CODE § 9.01(3).

       A defendant is not required to testify in order to raise the issue of self-defense; rather, the

issue may be raised by the testimony of witnesses who testify to the defendant’s acts and words at

the time of the offense. Reed v. State, 703 S.W.2d 380, 384–85 (Tex. App. – Dallas 1986, pet.

ref’d) (citing Smith v. State, 676 S.W.2d 584, 587 (Tex. Crim. App.1984)). Evidence from any

source may raise the defensive issue of self-defense. See Mendoza v. State, 88 S.W.3d 236, 239

(Tex. Crim. App. 2002).

       When some evidence raising the issue of self-defense is produced, the State bears the

burden of persuasion to show beyond a reasonable doubt that the defendant’s actions were not
                                                –9–
justified. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d

910, 913 (Tex. Crim. App. 1991). The State does not bear a burden of production to affirmatively

produce evidence refuting a self-defense claim; rather, the State is required to prove its case beyond

a reasonable doubt. Saxton, 804 S.W.2d at 913. A jury impliedly rejects a claim of self-defense by

finding a defendant guilty. Id. at 914; see also Zuliani, 97 S.W.3d at 594.

       When, as here, an appellant challenges the legal sufficiency of the evidence to support the

jury’s implied rejection of his self-defense claim, this Court looks not to whether the State

presented evidence which refuted appellant’s self-defense theory, but rather determines, after

viewing all the evidence in the light most favorable to the prosecution, whether any rational trier

of fact would have found the essential elements of murder beyond a reasonable doubt and also

would have found against appellant on the self-defense issue beyond a reasonable doubt. Saxton,

804 S.W.2d at 914; see also Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Smith v. State, 355

S.W.3d 138, 145 (Tex. App. – Houston [1st Dist.] 2011 pet. ref’d) (applying the Jackson v. Virginia

standard to jury’s rejection of self-defense claim). In conducting a legal sufficiency review, this

Court defers to the jury’s assessment of the credibility of the witnesses and the weight to be given

their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).

Jury Properly Rejected Self-Defense

       Appellant did not testify at trial, nor did he present any defensive evidence. There was no

admission by appellant of his involvement in this case. Any evidence of self-defense came from

the State’s witnesses, particularly from Boone, an accomplice.

       Boone testified that, when he asked appellant what happened on the drive back to

Shreveport, appellant told him that Tell went for his gun and appellant tried to grab it from him

and that is when the shooting started. The two men struggled over the gun but appellant was able



                                                –10–
to disarm Tell. The jury could reasonably infer that appellant then used Tell’s gun against Tell

and Garcia.

        Appellant’s connection to the scene of the shooting, and to Tell’s car, was firmly

established. Boone placed appellant in Tell’s car at the scene of the shooting and leaving the scene

of the shooting with two guns concealed in a t-shirt. Even without Boone’s testimony, however,

appellant was connected to the scene of the shooting because his fingerprints were on Tell’s car

and he was identified as a contributor of DNA tested in Tell’s car. Although a defendant’s mere

presence at the scene of the crime is, by itself, insufficient evidence to establish guilt, his presence

combined with other suspicious circumstances may be sufficient to connect the defendant to the

crime. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Cox v. State, 830 S.W.2d

609, 611 (Tex. Crim. App. 1992). Similarly, while mere presence is insufficient to corroborate the

testimony of an accomplice, combined with other suspicious circumstances it may be sufficient

corroboration. Smith v. State, 332 S.W.3d 425, 442-43 (Tex. Crim. App. 2011). The physical

evidence in this case both established appellant’s presence in and/or around Tell’s car and also

served to corroborate Boone’s testimony.

        The probable absence of a large amount of cash also serves to support the jury’s rejection

of self-defense. Boone never saw $8000, the agreed upon price for the amount of cocaine to be

exchanged. While he saw some money in appellant’s possession at the time appellant paid for the

gas at the travel center in Canton, he did not believe it was a large amount of money. The absence

of sufficient funds to complete the drug transaction indicates that appellant went to meet Tell

without the intention of fulfilling his part of the bargain to pay for the drugs. This is particularly

true since appellant had drug connections in Shreveport. It is a reasonable inference that appellant

did not need a drug supplier in Dallas and set up the transaction with the intent to commit either

theft or robbery.
                                                 –11–
       Defense counsel argued that Boone testified that none of the occupants of the borrowed car

had guns and suggested that both Tell and Garcia, on the other hand, had guns which compelled

consideration of self-defense. But arguments of counsel are not testimony. Banda v. Garcia, 955

S.W.2d 270, 272 (Tex. 1997) (holding unsworn attorney statements generally do not constitute

evidence); Lee v. State, 442 S.W.3d 569, 579 (Tex. App. – San Antonio 2014, no pet.). And the

evidence showed that appellant’s brother, Russell, and Knight were photographed at a travel center

outside of Dallas with a Glock firearm with an extended magazine. It is a reasonable inference

from this evidence that appellant and his accomplices came from Louisiana armed and went to the

drug transaction with bad intentions, such as committing theft or robbery.

       Appellant also argues in support of his position that the police were of the opinion that

there was no way to determine who shot first in this case. But knowing who fired the first shot in

the course of the gun battle is not essential to resolving these issues against appellant. The shots

fired were sporadic; there was one shot fired followed by a pause, a group of shots fired followed

by a pause, followed by yet another group of shots. The self-defense statute provides that the use

of deadly force is justified only when a person’s life is immediately threatened by another’s use of

unlawful deadly force. Kelley v. State, No. 05-15-00545-CR, 2016 WL 1446147, at *7 (Tex. App.

– Dallas April 12, 2016, pet. ref’d) (not designated for publication); Wilson v. State, No. 06-14-

00021-CR, 2014 WL 8332264, at *6 (Tex. App.–Texarkana November 7, 2014, pet. ref’d) (not

designated for publication). The jury could reasonably infer that the sequence in which the shots

were fired does not reflect a situation of immediate necessity from start to finish. Additionally,

the jury could also reasonably infer that the sheer number of bullets that were fired – Tell was shot

twelve times and Garcia was shot eight times – are beyond what can be considered immediately

necessary to protect appellant from any action taken by either Tell or Garcia.



                                               –12–
       The police surmised that Garcia shot the recovered Glock because the gun was still in Tell’s

car, close to Garcia, and was determined to have fired six shots. It was the lead detective’s belief

that Russell was shot with Garcia’s gun. Appellant argues that from this evidence it can be inferred

that Russell was shot first because (1) a single gunshot was heard first and (2) Boone noticed that

Russell was shot within seconds of getting into the back seat of Tell’s car where Garcia was sitting

before the gun battle started.

       However, ballistics evidence established that there were at least three guns involved in this

shooting. The evidence supports an inference that one gun belonged to Garcia; it was still in Tell’s

vehicle when the police arrived. The other two guns could have belonged to appellant and Russell,

to Tell and Russell, or to appellant and Tell. It is reasonable to infer from this evidence that one

of the guns used was the Glock with the extended magazine that appears in the photo of Russell

and Knight taken that afternoon on the trip from Louisiana to Dallas. The fact that at least one of

the accomplices went to the drug transaction armed supports the jury’s rejection of self-defense.

       Additionally, the casings from one gun were primarily on the ground outside the driver’s

side of the Ford, with one inside the car on the rear driver’s side. The casings from another gun

were primarily on the ground outside the passenger side, with a few inside the car as well. Casings

from the Glock found near Garcia were in the rear passenger seat, the front passenger seat, and on

the ground outside the front passenger door. Medical evidence established that Garcia was shot

primarily from the left while Tell was shot primarily from the right. Responding police officers

found Tell dead in the driver’s seat of the car while Garcia was fatally wounded in the back seat

of the car. Viewed in the light most favorable to the verdict, this evidence shows that two people

were firing into the car from the outside, while only one person was firing from inside the car. It

is reasonable to infer that appellant and Russell each had a gun and each shot into the car, one from



                                               –13–
the right and one from the left. It is also reasonable to infer that it was Garcia shooting from inside

the car.

           Photographs taken of Tell following the shooting show his phone is in his lap and his arms

by his side. His body is bullet riddled. His shoes were not on his feet at the time, but on the

floorboard. The jury could infer that this physical setting indicates that Tell thought this was going

to be a normal drug transaction in which he had nothing to fear and was most probably either

unarmed at the time appellant opened fire or disarmed almost immediately by appellant, who then

used Tell’s gun to kill Tell.

           It is also reasonable to infer from the evidence that the two guns appellant took from the

scene of the shooting and transported to Louisiana were the guns that he and his brother had used

to shoot Tell and Garcia. The guns were never located, leading to yet another reasonable inference

that appellant disposed of the guns3 after he got back to Shreveport. Destruction of evidence is

probative of guilt. Martin v. State, 151 S.W.3d 236, 244 n.6 (Tex. App.–Texarkana 2004, pet.

ref’d); Alex v. State, No. 05-15-00539-CR, 2016 WL 4388021, at *4 (Tex. App. – Dallas August

17, 2016, no pet.) (not designated for publication).

           Lastly, appellant fled the scene of the shooting. He told Boone to drive his brother to a

hospital, but later they dropped him off with Knight at a gas station and drove back to Shreveport.

Flight reflects consciousness of guilt, which a jury can consider in rejecting a self-defense claim.

See Valverde v. State, 490 S.W.3d 526, 529 (Tex. App. – San Antonio 2016, pet. ref’d); Kirk v.

State, 421 S.W.3d 772, 781 (Tex. App. – Fort Worth 2014, pet. ref’d) (referencing flight from the

scene of a crime as evidence a jury could consider in rejecting a self-defense claim); see also




    3
        The prosecutor argued, without objection, the following to the jury: “Those guns are at the bottom of a river.”


                                                          –14–
Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (noting that a factfinder may draw

an inference of guilt from the circumstance of flight).

         Having reviewed all of the evidence in the light most favorable to the prosecution, we

conclude the jury rationally found each element of the offense was proven beyond a reasonable

doubt and rationally rejected appellant’s self-defense claim. We overrule issues one and two.

                   Murder in the Course of Robbery or Attempted Robbery

         In his third issue on appeal appellant claims that the evidence was insufficient to prove he

was in the course of committing or attempting to commit robbery when he shot Tell. We do not

agree.

         A challenge to the sufficiency of the evidence is evaluated under the well-established

standards set forth in Jackson v. Virginia. We review the evidence in the light most favorable to

the verdict and determine whether a rational jury could have found all the elements of the offense

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 894-95. This standard

of review for legal sufficiency is the same for both direct and circumstantial evidence. Wise v.

State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007); Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001).

         We defer to the jury’s credibility and weight determinations because the jury is the sole

judge of the witnesses’ credibility and the weight to be given their testimony. See Jackson, 443

U.S. at 319; Brooks, 323 S.W.3d at 898-99; Haywood v. State, 344 S.W.3d 454, 458-59 (Tex. App.

– Dallas 2011, pet. ref’d). We will uphold the verdict unless a rational factfinder must have had

reasonable doubt with respect to any essential element of the offense. Jackson, 443 U.S. at 319;

Brooks, 323 S.W.3d at 899.

         When the record supports conflicting inferences, we must presume that the factfinder

resolved those conflicts in favor of the prosecution and defer to that determination. Jackson, 443
                                                –15–
U.S. at 326; Wise, 364 S.W.3d at 903. The State need not disprove all reasonable alternative

hypotheses that are inconsistent with appellant’s guilt. Wise, 364 S.W.3d at 903. Rather, we

consider only whether the inferences necessary to establish guilt are reasonable based upon the

cumulative force of all the evidence when considered in the light most favorable to the verdict.

Hooper, 214 S.W.3d at 13.

       The indictment alleged capital murder, in part, on the basis that the murder occurred while

appellant was in the course of committing and attempting to commit robbery. TEX. PENAL CODE §

19.03(a)(2). A person commits robbery if, in the course of committing theft and with intent to

obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily

injury to another or intentionally or knowingly threatens or places another in fear of imminent

bodily injury or death. TEX. PENAL CODE § 29.02(a). A person commits theft if he unlawfully

appropriates property with intent to deprive the owner of property. TEX. PENAL CODE § 31.03(a).

“In the course of committing” refers to conduct occurring in an attempt to commit, during the

commission of, or in the immediate flight after the attempt or commission of the murder. McGee

v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989); Dillard v. State, 931 S.W.2d 689, 696 (Tex.

App. – Dallas 1996, pet. ref’d). In order to prove the offense of capital murder wherein robbery or

attempted robbery is alleged as the aggravating element, the State need not prove a completed

robbery but must only show that an intent to rob was formed prior to or during the commission of

the murder. Maldonado v. State, 998 S.W.2d 239, 243 (Tex. Crim. App. 1999); Robertson v. State,

871 S.W.2d 701, 705 (Tex. Crim. App. 1993). Intent to rob may be inferred from the facts. McGee,

774 S.W.2d at 235.

       Appellant’s challenge to the sufficiency of the evidence to prove that he acted while in the

course of committing or attempting to commit robbery focuses on the theft, as opposed to the

assaultive, requisites of robbery. Based on the evidence in this case, viewed in the light most
                                               –16–
favorable to the verdict, it was reasonable for the jury to conclude beyond a reasonable doubt that

appellant had formed the intent to obtain control of Tell’s cocaine either before or during the

murder.

       Appellant, through Boone, set up a drug deal with Tell to buy 9 ounces of cocaine for

$8,000. Although Boone saw appellant in possession of some money, he did not think it was a

large amount; specifically, Boone never saw $8000, even though he was with appellant and the

other two accomplices for several hours on the drive from Shreveport to Dallas and while waiting

to meet up with Tell. The jury could have reasonably inferred that appellant did not have the $8,000

for the drug deal and that he intended to steal the drugs rather than buy them.

       It is also significant that at least one of the accomplices went to the drug transaction armed.

Russell, appellant’s brother, was in possession of a Glock firearm with an extended magazine. The

modifications to this weapon were designed to increase the “capacity” for bullets. The presence of

this weapon furthers the inference that appellant never intended to purchase the drugs but rather to

steal them and that appellant formed this intent prior to connecting with Tell.

       Additionally, the drugs found in Tell’s car did not equal the amount of cocaine appellant

allegedly intended to purchase. A piece of what ultimately proved to be rock cocaine weighing

42.3 grams was found under Tell’s body in the car. Cocaine in an amount of approximately 28.2

grams was found in Garcia’s pocket at the hospital. These amounts in combination constitute

approximately 70.5 grams, or 2.5 ounces, which is far short of the 9 ounces (approximately 255.2

grams) of cocaine Tell was supposed to sell to appellant and leaves a quantity of cocaine

unaccounted for. The front driver’s seat had cocaine residue, which could indicate that other

cocaine had been present in the car but was removed. The jury could have reasonably inferred that

appellant stole cocaine which was in plain view and was readily accessible but did not steal the

cocaine which was not in plain view and was under Tell’s seat and in Garcia’s pocket.
                                               –17–
         When viewed in the light most favorable to the verdict, the evidence shows that appellant

and his accomplices went to the drug deal armed and with the intent to steal the cocaine from Tell

rather than pay the agreed price. Consequently, a rational jury could conclude from the evidence

that appellant had formed the intent to rob before the murder and that he intentionally murdered

Tell while in the course of committing or attempting to commit robbery. The evidence is legally

sufficient to prove this allegation in the indictment. We overrule issue three.

                                        Robbery and Self-Defense

         In his fourth issue on appeal, appellant claims that the trial court erred by failing in its jury

instructions to apply the law of self-defense to robbery allegations in the indictment. We conclude

that appellant was not entitled to this instruction.

         In Count I of the indictment, appellant was charged with a single offense of capital murder

under two alternative theories: (1) that appellant murdered Tell and also murdered Garcia during

the same criminal transaction; and (2) that appellant murdered Tell in the course of committing or

attempting to commit robbery. TEX. PENAL CODE § 19.03(a)(2) & (a)(7)(A). The charge applied

the law of self-defense to the first theory, i.e., that appellant had murdered Tell while also

murdering Garcia during the same criminal transaction. The charge did not apply the law of self-

defense to the second theory, i.e., that appellant had murdered Tell in the course of committing or

attempting to commit robbery.

         Appellant did not object to the charge on the basis he now urges on appeal, nor did he

request that the law of self-defense be applied to the robbery theory of capital murder.

Consequently, appellant must first establish that there is error in the charge and second, if error is

present, that he suffered egregious harm as a result of that error. Middleton v. State, 125 S.W.3d

450, 453 (Tex. Crim. App. 2003); Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App.

1985).
                                                  –18–
       A person committing the offense of robbery, however, has no right of self-defense against

his intended victim. See Davis v. State, 597 S.W.2d 358, 360 (Tex. Crim. App. 1980); Dickson v.

State, 463 S.W.2d 20, 23 (Tex. Crim. App. 1971); Dillard v. State, 931 S.W.2d 689, 697 (Tex.

App. – Dallas 1996, pet. ref’d). As a result, we conclude that appellant was not entitled to a jury

instruction of self-defense to robbery at all. We overrule issue four.

                                           Jury Charge

       In his fifth issue on appeal, appellant claims that the jury charge erroneously authorized a

non-unanimous verdict which resulted in egregious error.

       In Count I of the indictment, appellant was charged with a single offense of capital murder

under two alternative theories: (1) that appellant murdered Tell and also murdered Garcia during

the same criminal transaction and (2) that appellant murdered Tell in the course of committing or

attempting to commit robbery. TEX. PENAL CODE § 19.03(a)(2) & (a)(7)(A). The jury charge

authorized a single conviction for capital murder if the jury unanimously found beyond a

reasonable doubt that appellant murdered Tell under either theory:

               Now, if you unanimously find from the evidence beyond a reasonable doubt
       that, on or about September 5th, 2013, in Dallas County, Texas, the defendant,
       PATRICK LYNN RUSSELL, either individually or as a party as that term has been
       defined:

               did then and there intentionally or knowingly cause the death of an
               individual, namely, TAVARES TELL, by shooting TAVARES TELL with
               a firearm, and did then and there intentionally and knowingly cause the
               death of another individual, namely, KENNY GARCIA, by shooting
               KENNY GARCIA with a firearm, and both murders were committed during
               the same criminal transaction,

               OR,

               did then and there intentionally cause the death of an individual, namely,
               TAVARES TELL, by shooting TAVARES TELL with a firearm, and the
               defendant was then and there in the course of committing or attempting to
               commit the offense of robbery,

                                                –19–
         then you will find the defendant guilty of capital murder as charged in Count I of
         the indictment, and you will not render a verdict with respect to Count II.

                Unless you so find, or if you have a reasonable doubt, you will find the
         defendant not guilty of capital murder under Count I, and you shall next consider
         Count II.

The jury returned a general verdict finding appellant guilty of capital murder as charged in Count

I of the indictment.4

         Texas law requires a unanimous jury verdict in all criminal cases. See TEX. CONST. art. V,

§ 13; TEX. CODE CRIM. PROC. art. 36.29(a); Jefferson v. State, 189 S.W.3d 305, 310-11 (Tex. Crim.

App. 2006). A jury must unanimously agree that the defendant committed one specific crime in

order to convict. Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). The State may,



     4
       There was some initial confusion as to exactly what the jury found because the jury foreman originally signed
three verdict forms. The trial court judge stated that he has been handed the jury charge which contained the following
verdicts:

         “We, the jury, unanimously find the Defendant guilty of capital murder as charged in Count 1 of the
         indictment.” Signed by the foreperson.

         …[N]ext, this is on Page 22, says, “We, the jury, unanimously find the Defendant guilty of the
         murder of Kenny Garcia as included in Count 1 of the indictment,” and there’s a signature of the
         foreperson.

         And then on Page 23 it says, “We, the jury, unanimously find the Defendant guilty of the murder of
         Tavares Tell.” And there is the foreperson’s signature conforming to that verdict.

         The trial court judge proposed bringing the jurors back in to the courtroom, asking them to clarify their
verdict, and sending them back to the jury room to continue deliberations. Counsel for appellant objected to this
proposal:
         Your Honor, as the charge is drafted as the jury has unanimously voted, the jury has found the
         Defendant had the right to self-defense against both of the victims in this case. And I’m asking the
         Court acquit – see that as a judgment of acquittal in this case and not send it back to them. It’s a
         rejection – to me, it’s a rejection of their verdict based on the clear wording of the charge.

    The trial court overruled this objection. The court then brought the jury into the courtroom and ordered them to
continue to deliberate to clarify their verdict.

    The jury later clarified that its verdict was as follows: “We, the jury, unanimously find the Defendant guilty of
capital murder as charged in Count 1 of the indictment.” The trial court then polled the jury to ascertain that it was the
verdict on which all twelve jurors agreed.

     On appeal, appellant does not challenge the trial court’s ruling on his objection, but rather claims that the charge
did not mandate a unanimous verdict.
                                                         –20–
however, allege different methods of committing a single offense in an indictment. Kitchens v.

State, 823 S.W.2d 256, 258 (Tex. Crim. App.1991) (indictment alleged two different methods of

committing single offense of capital murder). When alternate theories of committing the same

offense are alleged in the conjunctive in the indictment, as they were in this case, it is proper for

the jury to be charged in the disjunctive. Id., at 258. A jury is not required to find unanimously that

the defendant committed that crime in one specific manner or using the same specific means.

Landrian, 268 S.W.3d at 535.

       In homicide cases, which focus on the death of an individual, different legal theories

involving the same victim are simply alternate methods of committing the same offense. Huffman

v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008). In capital murder prosecutions a jury charge

may properly instruct, in the disjunctive, different capital murder theories with respect to the same

victim. Davis v. State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010); Gamboa v. State, 296 S.W.3d

574, 584 (Tex. Crim. App. 2009). The jury’s verdict need not be unanimous on which of the

underlying felonies the defendant was in the course of committing at the time of the homicide.

Gardner v. State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009).

       Here, the jury was instructed to find appellant guilty only if the jury unanimously found

from the evidence beyond a reasonable doubt that, on or about September 5, 2013, appellant either

(1) murdered Tell and also murdered Garcia during the same criminal transaction or (2) appellant

murdered Tell in the course of committing or attempting to commit robbery. It was essential that

the jury unanimously agree on the core element of capital murder, i.e., that appellant had murdered

Tell. It was not essential that the jury unanimously agree as to the specific manner and means of

how appellant committed that murder.

       The jury charge was not erroneous. Because the charge was not erroneous, no harm is

attendant in the verdict. We overrule issue five.
                                                –21–
                                          Conclusion

       We overrule appellant’s issues and affirm.




                                                /Elizabeth Lang-Miers/
                                                ELIZABETH LANG-MIERS
                                                JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)

170124F.U05




                                             –22–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 PATRICK LYNN RUSSELL, Appellant                    On Appeal from the 292nd Judicial District
                                                    Court, Dallas County, Texas
 No. 05-17-00124-CR         V.                      Trial Court Cause No. F-1600779-V.
                                                    Opinion delivered by Justice Lang-Miers.
 THE STATE OF TEXAS, Appellee                       Justices Fillmore and Stoddart participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 24th day of January, 2018.




                                             –23–
