Affirmed as Modified and Opinion Filed November 6, 2015




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-01038-CR

                         RACHARD RAMON ANGTON, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. F-1355911-H

                             MEMORANDUM OPINION
                           Before Justices Francis, Lang, and Brown
                                  Opinion by Justice Francis
       A jury convicted Rachard Ramon Angton of murder and assessed punishment, enhanced

by two prior felony convictions, at forty years in prison. In two issues, appellant complains the

jury charge did not include instructions on the presumption of reasonableness and lack of a duty

to retreat, both of which relate to self-defense. For reasons set out below, we conclude both

issues are without merit. On our own motion, we modify the trial court’s judgment to make it

conform to the record and affirm the judgment as modified.

       Joseph Taylor Jr. was a mechanic and had a shop on a large lot on Westmoreland Drive

in west Dallas. Although appellant and Taylor were not related, appellant referred to Taylor as

“Uncle.” It is undisputed that appellant shot and killed Taylor, but appellant claimed at trial he
was acting in self-defense. Because appellant was the only person with Taylor when he was

killed, we begin with appellant’s testimony.

       Appellant testified he made a deal to buy Taylor’s Crown Victoria. Appellant and a

friend, Michelle Horne, were going to share the car, and Horne exchanged her Smith and Wesson

9 mm gun for rims to put on the Crown Victoria. Appellant made a down payment of $500 on

the car, but Taylor would not let him take possession until he paid the full $1000.

       By the next day, appellant had purchased a different car, a blue Caprice, and went to

Taylor’s shop to get his money back. When he arrived, Taylor’s friend, Maurice Henderson, was

there, and appellant waited until Henderson left to ask for the refund. Appellant said Taylor

refused to return his money but offered to return Horne’s gun. Appellant said he did not want

the gun, and he and Taylor got into a “heated” argument. Appellant testified that Taylor

“swung” at him, and the two began fighting.

       The fight led to an area near Taylor’s pit bull, which other witnesses said was kept tied up

at the front of the shop. Appellant said he was afraid of the dog and while he was distracted by

it, Taylor suddenly shot him in the leg. Appellant said Taylor previously placed Horne’s 9 mm

gun on a trailer located in the middle of the lot. Appellant ran across the lot and grabbed the gun,

ducked, and shot back. He said he did not try to “get out of there” because Taylor was shooting

at him. When the gunfire stopped, he could not see Taylor but could hear him saying to “go on

and leave, get out of here.”

         Appellant ran for his car, which was parked in the front of the shop, and left. He threw

the gun off the Westmoreland Bridge and did not call 911 because he was “scared” and “wasn’t

thinking straight.” Although at least three hospitals were in the area, he drove seventeen miles to

a Carrollton hospital to seek treatment for his wound. He gave hospital employees a fake name,

Jonathan Jackson. When the hospital employees began questioning him about what happened, he

                                                –2–
did not want to “tell it on my uncle” so he tried to leave with an IV in his arm. By that time,

Horne had arrived at the hospital and given employees appellant’s real name. Horne removed

appellant’s IV, and the two went to a Plano hospital for treatment. Appellant was arrested at that

hospital.

       Appellant testified he shot Taylor because he had “no other choice.” He testified he did

not go to the shop with the idea of killing his uncle and he did not intentionally try to kill him.

He said he was defending himself. Although he had shot at Taylor six times, he said he did not

think anything was wrong with his uncle when he left the shop.

       The State’s evidence contradicted appellant’s story of what occurred. Taylor’s friend

Henderson lived directly behind the shop. He testified he was at the shop that day, and appellant

was also there. Henderson left long enough to walk home and get a drink. About seven or eight

minutes later, he walked outside to return to the shop and heard “arguing or loud talking.” He

walked to the back yard to see if he could hear better and heard three to five “big shots” and

then, about five seconds later, two “small shots.” Henderson said he could tell the shots came

from two different guns. He immediately called Taylor, who he said was either “mumbling” or

“moaning.” As he ran to the shop, he saw a blue Caprice leaving the area. He found Taylor

lying on the ground in front of a trailer and called 911. Taylor’s pit bull was tied up.

       As officers arrived, they gained entry to the property by a back road because the gate to

the front entrance was closed and locked. Taylor was lying on the ground face up near a trailer

covered in a blue tarp. His body was in a “contorted” position, and about eight to ten men were

standing around talking to him. The first officer at the scene noticed a gun near Taylor and

collected the weapon, a .32-caliber Smith and Wesson. The officer checked the gun, and it was

loaded with a magazine with six bullets.




                                                –3–
           Sr. Cpl. John H. Lumbley of the Dallas Police Department talked to Taylor at the scene,

and Taylor told him in a “very deliberate” manner that appellant shot him and also described

appellant’s clothing. Taylor was in “obvious pain” so Lumbley did not question him about how

the shooting occurred. Taylor was transported to the hospital, where he went into cardiac arrest

within minutes and died.

           At the scene, officers saw fired casings, bullet fragments, and holes in vehicles.

Photographs were taken showing the locations of the fired casings and bullet fragments as well

as the bullet hole in the hood of one truck; these photographs were admitted into evidence.

           Photographs depicting different areas of the shop lot were also admitted. In the front of

the lot near the entrance was a two-bay garage structure; outside the garage doors was an igloo-

style doghouse where Taylor’s pit bull was kept. No casings or bullet fragments were found in

this area.

           In the area where Taylor was found (which a witness said was the middle of the lot) was

an old eighteen-wheeler cargo-type structure used for storage. In front of the structure was a

trailer covered by a tarp. Two railroad ties were on the ground nearby. In this area, police

recovered one fired .32-caliber casing as well as the loaded .32-caliber weapon.

           Finally, outside the area of the cargo structure, trailer, and railroad ties were several older

vehicles. Six fired 9 mm casings were found in this area; these casings were determined to come

from the gun that Horne traded Taylor for rims.1                                   The firearms examiner who made the

determination also testified that each gun leaves its own unique markings on bullets or casings.

She also testified a 9 mm gun is larger than a .32-caliber gun. Because the 9 mm is a larger




     1
       The evidence showed that a year before this shooting, the Dallas Police Department had possession of a Smith and Wesson 9 mm
handgun, did test firings on the handgun, and entered those records in NIBIN, a national ballistics database. That handgun was later released to
Horne. Police submitted the 9 mm casings found at this crime scene to NIBIN and matched them to test firings from the gun released to Horne.



                                                                     –4–
cartridge, she said it holds more gunpowder and “will probably be a bit louder” than a .32-caliber

automatic.

       Dr. Chester Gwin, a medical examiner, performed Taylor’s autopsy. He said Taylor’s

body had three different gunshot wounds and other injuries that could have been caused by a fall

or a fight. With respect to the gunshot wounds, Gwin said two were “through and through”

wounds, meaning there was an entrance and an exit. One bullet went through Taylor’s left outer

arm, moved from back to front and upward, and exited his inner arm. Another bullet entered the

outside of his left knee, moved from left to right, slightly back to front, and exited the anterior

front aspect of the knee. The third bullet lodged in his right thigh. It entered the side of his left

hip/flank area, went through his abdomen, hit the iliac vein and his bladder, and fractured his

right femur. This shot went from left to right and several inches downward. Gwin determined

the cause of death was gunshot wounds and the manner of death was homicide.

       In addition to the above, other evidence revealed appellant told workers at the Carrollton

and Plano hospitals different stories of how he was injured. At Carrollton, he first said he was

shot during a robbery and then said he was shot walking down the street. At Plano, he said a gun

in his pocket discharged, firing a bullet into his thigh.

       The trial court instructed the jury on the law of self-defense, including the use of deadly

force. See TEX. PENAL CODE ANN. §§ 9.31, 9.32(a) (West 2011). Based on that law, the trial

court instructed the jury that a person is justified in using deadly force when the actor reasonably

believed that the force was immediately necessary to protect himself against another person’s use

or attempted use of unlawful deadly force. See id. § 9.32(a)(2)(A). The trial court, however, did

not instruct the jury under section 9.32(b), which creates a presumption that the actor’s belief

that deadly force was immediately necessary was reasonable if certain criteria are met. See TEX.

PENAL CODE ANN. § 9.32(b). Nor did the charge contain an instruction under section 9.32(c),

                                                 –5–
which provides that a defendant does not have a duty to retreat before using deadly force if

certain criteria are met. See TEX. PENAL CODE ANN. § 9.32(c). Appellant did not request or

object to the absence of these instructions. The jury ultimately rejected appellant’s self-defense

claim and found him guilty of murder. This appeal followed.

       In two issues, appellant complains he was egregiously harmed by the trial court’s failure

to instruct the jury on the presumption of reasonableness and lack of duty to retreat. We begin

with the presumption of reasonableness.

       The statutory presumption favoring a defendant must be submitted to the jury “if there is

sufficient evidence of the facts giving rise to the presumption . . . unless the court is satisfied that

the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed

fact.” Id. § 2.05(b)(1) (West 2011); Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011).

As relevant here, the presumption of reasonableness applies unless the State proved beyond a

reasonable doubt at least one of the following:         (1) appellant neither knew or had reason to

believe that Taylor was committing or attempting to commit aggravated kidnapping, murder,

sexual assault, aggravated sexual assault, robbery, or aggravated robbery, (2) appellant provoked

Taylor; or (3) at the time deadly force was used, appellant was engaged in criminal activity other

than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic. See id. §

9.32(b)(1)(C), (2), (3); Villarreal v. State, 453 S.W.3d 429, 435 (Tex. Crim. App. 2015).

       For purposes of our opinion, we will assume the trial court erred in failing to give the

instruction and turn to whether such error requires reversal based on the test set out in Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Under Almanza, the degree

of harm required for reversal depends on whether the error was preserved in the trial court.

Villarreal, 453 S.W.3d at 433. When the defendant fails to object, as is the case here, reversal is




                                                  –6–
required only if the error was so egregious and created such harm that the defendant was

deprived of a fair and impartial trial. Id.

       Charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Id. Egregious harm is a “high

and difficult standard” to meet, and such a determination must be “borne out by the record.” Id.

On appeal, neither party bears the burden of showing harm or a lack thereof under this standard.

Id. But, we will not reverse a conviction unless a defendant has suffered actual rather than

theoretical harm. Id. To determine whether charge error has resulted in egregious harm to a

defendant, we consider (1) the entirety of the jury charge, (2) the state of the evidence, including

the contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) any

other relevant information revealed by the trial record as a whole. Id.

       The charge begins with an abstract instruction on the elements of murder and relevant

definitions followed by instructions on the law of self-defense. The self-defense charge correctly

informed the jury on the general law of self-defense, including when the use of force and deadly

force is justified under the statute, the meaning of “reasonable belief”, and that force is not

justified in response to verbal provocation alone. Thereafter, an application paragraph instructed

jurors that even if they believed from the evidence beyond a reasonable doubt that appellant

caused Taylor’s death, if they further believed or had

       a reasonable doubt thereof, that at the time he did so, the defendant reasonably
       believed Joseph Taylor was using or attempting to use unlawful deadly force
       against him and that he reasonably believed that the use of force and the degree of
       force used were immediately necessary to protect himself against Joseph Taylor’s
       use or attempted use of unlawful deadly force, you will find the defendant not
       guilty.

       Thus, the charge generally instructed the jury on the law of self-defense under section

9.31 and included an instruction on the law that applies to a defendant’s use of deadly force

under section 9.32(a). The charge did not instruct the jury, however, on the presumption of
                                                –7–
reasonableness regarding appellant’s purported belief that the use of deadly force was

immediately necessary. But if the omitted instruction had been given, it would have allowed the

jury to disregard the presumption if it concluded that appellant (1) had no reason to believe

Taylor was trying to murder him, (2) appellant provoked Taylor, or (3) appellant, at the time of

the shooting, was otherwise engaged in criminal activity as defined in the statute. See TEX.

PENAL CODE ANN. § 9.32(b). Thus, a complete instruction would have permitted the jury to

decide that the presumption did not apply to the facts of appellant’s case if certain circumstances

existed. Because the applicability of the presumption was dependent on the evidence, we turn to

the second factor, the state of the evidence.

       In considering this factor, we keep in mind that it is appropriate to consider the

plausibility of the evidence raising self-defense.      Villarreal, 453 S.W.3d at 436.       Here,

appellant’s story was that Taylor swung at him after he asked for refund; they got into a physical

fight; the fight moved them near Taylor’s pit bull; and while he was distracted by the dog, Taylor

shot him in the leg. Appellant said he ran across the lot, grabbed the 9 mm gun that Taylor had

put on a trailer, ducked, and began to shoot. But Henderson, who lived directly behind the shop,

testified he heard arguing and then heard three to five “big shots” followed by two “small shots.”

Henderson said he could tell the shots came from two different guns. The firearms examiner

testified that a 9 mm cartridge is larger and holds more gunpowder, so it louder when fired than a

.32-caliber gun.

       Additionally, the physical evidence contradicts appellant’s version of what occurred.

Detective Tabor explained that in an automatic weapon, the casing is automatically ejected when

the gun is fired. No casings were found in the front of the shop where the dog was tied up. Six 9

mm casings were found in various locations near some of the older cars parked on the lot, but no

9 mm casings were found in the area of the tarp-covered trailer where appellant claimed to have

                                                –8–
shot back at Taylor. The only casing found near the trailer was the .32-caliber casing, which

came from the gun presumably used by Taylor. And this was the only .32-caliber casing found

at the scene. So, the physical evidence showed (1) Taylor was not where appellant claimed he

was when Taylor shot him, because there were no casings near the area where the dog was tied

up and (2) appellant was not where he claimed to be when he shot back at Taylor because the 9

mm casings were not in that area. This evidence undermined appellant’s entire sequence of

events.

          Finally, the medical examiner testified Taylor sustained three gunshot wounds. One

gunshot entered through Taylor’s left arm, slightly back to front, from left to right, and upward;

another went into the side of Taylor’s left hip/flank area, left to right and downward; and the

third went through his left knee, from left to right and slightly back to front. In short, because

two of the gunshots were from back to front, and all entered on the left side of Taylor’s body, the

evidence suggests Taylor was facing away from appellant when he was shot.

          Other than appellant’s testimony about what happened at the shop lot and the fact he was

shot in the leg, no other evidence supports his story. Rather, appellant’s version of what

happened that day was contradicted by all of the physical evidence as well as Henderson’s

testimony about what he heard. Given the weakness of appellant’s defensive evidence when

compared to the other evidence in the record refuting his story, we cannot conclude there is a

substantial risk that appellant was harmed by the omission of the presumption or that the

instruction would likely have altered the outcome as to whether appellant acted in self-defense.

Accordingly, this factor weighs against a conclusion that appellant suffered some actual rather

than theoretical harm.

          Next, we consider closing arguments where the primary focus of both sides was whether

appellant acted in self-defense at all, not whether his actions were reasonable given his version of

                                                –9–
events. Appellant’s counsel went through appellant’s testimony and noted the only people

present at the time of the shooting were appellant and Taylor. He argued the situation “got out of

hand there real fast” but that appellant did not go to the shop with intent to kill Taylor. The State

argued the physical evidence “doesn’t lie” and went through that evidence in detail as well as

appellant’s conduct after leaving the scene, including getting rid of the gun, driving seventeen

miles to one hospital, leaving to go to another hospital, giving a false name at both hospitals, and

giving false stories about how he was injured. Calling his story “preposterous,” the State urged

that appellant did not act in self-defense but instead murdered Taylor. Given the focus of the

arguments, we cannot conclude this factor suggests actual, rather than theoretical, harm from the

failure to include the presumption instruction in the jury charge.

       The final Almanza factor addresses any other relevant information revealed by the record

as a whole. We have reviewed the record and are not aware of any other relevant information

that requires our consideration.

       On this record and considering the Almanza factors, we conclude any error in failing to

instruct the jury on the presumption of reasonableness caused no actual, as opposed to

theoretical, harm to appellant. We resolve his first issue against him.

       In his second issue, appellant complains the trial court failed to instruct the jury on the

lack of a duty to retreat. Under section 9.32(c), a person who has a right to be present at the

location where the deadly force is used, has not provoked the person, and is not engaged in

criminal activity at the time deadly force is used is not required to retreat before using deadly

force. Id. § 9.32(c).

       As before, we will presume the trial court erred in failing instruct the jury on this lack of

a duty to retreat and review the record for egregious harm. For the same reasons set out

previously in our analysis of the charge and state of the evidence, we conclude appellant was not

                                               –10–
egregiously harmed by the lack of an instruction.       In addition, we note that neither party

mentioned retreat in closing arguments, so it is unlikely the jury would have considered such a

duty when deciding the case. We resolve appellant’s second issue against him.

       Finally, although neither party has raised the issue, our review of the record reveals

errors in the trial court’s judgment.    First, the judgment shows appellant’s first name as

“Richard.” Appellant testified at trial and identified himself as “Rachard Ramon Angton.”

Additionally, the indictment and both charges (guilt-innocence and punishment) identify him as

“Rachard.”

       Second, at the beginning of the punishment phase, appellant pleaded true to two

enhancement paragraphs alleging prior felony convictions, and the jury was instructed to find

those allegations true.   The judgment, however, shows “N/A” to pleas and findings on

enhancement paragraphs.

       This Court has the authority to correct a judgment of the court below to make the record

“speak the truth” when we have the necessary data and information to do so. Asberry v. State,

813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). This authority is not dependent upon

a request by a party nor does it turn on the question of whether a party has objected in the trial

court. Id. at 529–30. Accordingly, we modify the judgment to reflect (1) appellant’s first name

as “Rachard” and (2) pleas and findings of true to both the first and second enhancement

paragraphs.




                                              –11–
       We affirm the trial court’s judgment as modified.




Do Not Publish                                    /Molly Francis/
TEX. R. APP. P. 47.2(b)                           MOLLY FRANCIS
141038F.U05                                       JUSTICE




                                             –12–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

RACHARD RAMON ANGTON, Appellant                     On Appeal from the Criminal District Court
                                                    No. 1, Dallas County, Texas
No. 05-14-01038-CR         V.                       Trial Court Cause No. F-1355911-H.
                                                    Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                        Justices Lang and Brown participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        To reflect: (1) Appellant's first name as Rachard and (2) Pleas of True and
        Findings of True to the First and Second Enhancement Paragraphs.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 6th day of November, 2015.




                                             –13–
