Opinion
01-21-00282-CR
03-30-2023
ZACCHAEUS ARCHIE, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1683895
Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.
MEMORANDUM OPINION
Veronica Rivas-Molloy Justice
Appellant Zacchaeus Archie was charged with the murder of Tadarius Vaughn ("Vaughn"). At trial, his counsel advanced the theory that Appellant shot Vaughan in self-defense. The jury rejected Appellant's self-defense claim, convicted him of murder, and assessed his punishment at fifty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a timely written notice of appeal.
In his first two issues, Appellant argues the trial court erred in overruling his motion to suppress his recorded interview with a police detective and in admitting the video of his interview at trial because he was subjected to interrogation without having been advised of his rights under Miranda v. Arizona, 384 U.S. 426, 479 (1966). In his third issue, Appellant argues the trial court erred by including an instruction on the law of retreat in the jury charge over his objection.
We affirm.
Background
On November 29, 2018 at approximately 10:30 p.m., Appellant Zacchaeus Archie ("Archie") shot and killed Vaughn. Archie initially told authorities he had nothing to do with the murder, but at trial, his counsel asserted Archie shot Vaughn in self-defense. The weapon used in the shooting was not recovered.
At trial, Deandra Vaughn Ukah ("Ukah"), Vaughn's mother, testified that her daughter gave Vaughn the keys to her white Ford Focus the night of the shooting. Ukah testified that Vaughn sold marijuana and other drugs, such as Ecstasy. She also testified that her son carried a gun. She testified she did not know whether Vaughn planned to do a drug deal the night he was killed. Text messages and Instagram conversations recovered from Vaughn's phone reflected a planned meeting between Vaughn and Archie at The Colony of Humble apartment complex on November 29, 2018. According to the text and Instagram conversations, Archie planned to purchase an ounce of marijuana and an iPhone from Vaughn, but Vaughn apparently was not able to obtain the ounce of marijuana prior to the planned meeting.
Renita Mathis ("Mathis"), who lived in The Colony of Humble apartment complex, testified that she and her daughter were returning home from choir rehearsal the evening of November 29, 2018. As they were returning to the apartment complex, she saw Vaughn in the driver's seat of a white car. The white car was parked in a no-parking zone in the apartment complex and there were no passengers in the car. Mathis parked and as she started removing items from her car, she noticed Vaughn driving by slowly in the white car, but now Mathis noticed there was also a passenger in the car. Mathis testified the passenger looked fairly aggressive and it looked like he was arguing. Soon after Mathis saw the men in the white car, Cory Roberson ("Cory"), Vaughn's friend, approached her and told her to call 9-1-1 because his friend had been shot. Mathis, who did not hear the gunshots, called 9-1-1. During trial, Mathis identified Archie as the passenger in the white car. She also identified Archie from a photo array arranged by the police.
Nathaniel Roberson, Jr. ("Nathaniel"), a maintenance supervisor at The Colony of Humble apartment complex, testified he heard gunshots the evening of November 29, 2018. When he heard the shots, he went outside and saw Vaughn's car still running. As Nathaniel approached the car, he could see someone inside had been shot. Nathaniel testified he saw a bloody t-shirt in the car on the driver's side. As he left to get his phone, the police arrived.
Cory's brother, Larry Roberson ("Larry"), testified that Cory and Vaughn were friends and attended school together. Larry and Cory heard the gunshots, went outside, and Larry called the police. Larry did not see the shooter, but he saw a car speeding away.
Marianne Beynon, M.D. ("Dr. Beynon"), an assistant Harris County medical examiner, performed Vaughn's autopsy. She testified that Vaughn sustained five gunshot wounds from at least four bullets. She determined the cause of death was gunshot wounds to the torso and right arm. Dr. Beynon testified that the gunshot wounds are consistent with the bullets coming from the passenger side of the car, probably at least two feet from the point of impact.
Several law enforcement personnel also testified at trial.
James Cox
Humble Police Officer James Cox ("Officer Cox") was dispatched to the scene of the shooting at approximately 10:30 p.m. He testified he found a white car and encountered Cory, who was trying to open the driver's door of the car. The car was running, and Vaughn was in the driver's seat. Officer Cox testified that Vaughn's foot was still on the accelerator when he arrived. Vaughn did not have a pulse and was bleeding from his right arm and chest. Officer Cox stated that he contacted EMS, the Medical Examiner's Office, and the Humble Police Department's Crime Scene Unit.
Officer Cox testified he saw a handgun and an extra magazine in the center console cupholder and a fired casing on the floorboard of the car. The Crime Scene Unit found marijuana in the car. Officer Cox testified he and his fellow officers were not able to locate any suspects in the area. They secured the scene and interviewed several people who lived in the complex. One person told Officer Cox he had seen a dark-colored vehicle speed from the scene after the shooting. Officer Cox testified that he learned during his investigation that Vaughn was known for selling drugs.
James Abair
Officer James Abair ("Officer Abair"), a Crime Scene Unit investigator for the Humble Police Department, testified he was called to the scene at 10:47 p.m. that night. He took photos of the inside of the white Ford Focus, located and marked the evidence with placards, documented the evidence with photos, and collected evidence from the car. Officer Abair collected approximately eighteen pieces of evidence and took the evidence to the crime lab and the Humble Police Department. Several days later he examined the white Ford Focus, which had been towed to a storage location. The car's center console had two cupholders. The front cupholder contained a black pistol face down and leaning toward the passenger seat. A baggie with .06 ounces of marijuana was leaning on the firearm. The back cupholder had a package of Swisher Sweets cigars, which are used to smoke marijuana, and a 40-caliber magazine. The gun in the console was a Smith & Wesson 40-calibur Shield handgun and it had seven live rounds in it. In response to questioning from defense counsel, Officer Abair testified it was possible Vaughn could have had his hand on the gun in the front center console when he was shot. Officer Abair testified he retrieved two bullet projectiles from inside the car. He also retrieved two cell phones: one from the center console and one from the floorboard. He found three shell casings in the passenger seat, which indicated the driver had been shot multiple times while in the driver's seat of the car and bullets came from the driver's right side. Officer Abair found two bullets had penetrated the driver-side door, possibly after passing through Vaughn's body.
Willis Domilos
Humble Police Detective Willis Domilos ("Detective Domilos") testified he met with Vaughn's mother and sister. He also met with Danielle Riley ("Riley"), Vaughn's girlfriend, who told him someone with the street name "Chulo" may have been involved in the shooting. Detective Domilos then met with Kaleb Robinson ("Kaleb"), Vaughn's friend, who told him Vaughn was supposed to be meeting a mutual friend named "Zach" the night of the murder. When Detective Domilos interviewed witnesses, one witness told him Vaughn was a drug dealer.
Detective Domilos testified he showed Mathis an array of six photos and Mathis, who was visibly shaken, immediately selected Archie's photo. She then stated in writing that she was fifty percent certain the picture she selected was of the person she had seen in the passenger seat of the Ford Focus the night of the shooting.
David Scott
Humble Police Detective David Scott ("Detective Scott") was the lead detective on Vaughn's murder investigation. He testified that when he arrived at the scene at approximately 11:20 p.m. on November 29, 2018, he saw the white Ford Focus with the passenger door open and Vaughn in the driver's seat with "quite a bit of blood on his body." He saw a handgun in the center console cupholder and a small plastic baggie. There were no signs of a robbery at the scene of the shooting.
Detective Scott testified that he spoke to Kaleb, who had been a good friend of Vaughn and who had been with Vaughn before the shooting. Kaleb, who was interviewed three times, was cooperative. Information provided by Kaleb and Riley led the police to Archie, whom they believed was the shooter. Kaleb and Riley called Archie "Zach" and they also referred to him by his nickname, "Chulo." Detective Scott also spoke with Larry and Cory, who heard the shots and the white Ford Focus' engine revving after the shots were fired.
Detective Scott testified that the following day, he met with Vaughn's family and obtained consent to examine the white Ford Focus and Vaughn's phone. Detective Scott saw text messages and Instagram conversations on Vaughn's phone that he believed were related to the shooting. According to Detective Scott, Vaughn's text and Instagram conversations indicated that Vaughn was a drug dealer and Kaleb informed him that Vaughn was trying to buy and then sell an ounce of marijuana the night of the murder. The retrieved cell phone photographs and messages suggested Vaughn was trying to obtain drugs and meet someone later who intended to buy the drugs and an iPhone from him. There was an Instagram conversation with someone named "Chulo." Vaughn had a conversation about selling an iPhone and an ounce of marijuana to someone with a screen name of Trap.Chulo. According to the messages, Vaughn apparently was not able to acquire the ounce of marijuana before meeting with "Chulo."
Detective Scott testified that Archie was considered a suspect based on the information provided by Riley and Kaleb and the messages on the phone. "Chulo" appeared to be the last person to have contact with Vaughn. Detective Scott testified that Vaughn's gun was easily accessible to him as he sat in the driver's seat. Based on the autopsy report, the muzzle of the killer's gun was probably at least two feet away from Vaughn's body when the shots were fired. Detective Scott testified that he had no reason to believe the gunshots were fired some distance away from the car. Archie's fingerprints were not on the car and there was insufficient DNA inside the car to identify anyone who had been in the car with Vaughn.
On December 4, 2018, Detective Scott learned that Archie had been arrested at his sister's house. That same day, Detective Scott interviewed Archie at the Humble Police Department. During the interview, Archie admitted he was with Vaughn on the night of the shooting, but he denied any involvement in the shooting. According to Archie, he smoked marijuana with Vaughn in Vaughn's car, but he then left and returned home by 9:30 p.m. In an audio recording of a phone call Vaughn made from jail to a family member on December 20, 2018, however, Archie said he shot Vaughn three times in self-defense because Vaughn reached for a gun. Detective Scott identified Archie's voice in the jail audio call.
Sean Tokay
Sean Tokay ("Tokay") is a firearms examiner at the Harris County Institute of Forensic Sciences. He testified he examined the Smith & Wesson pistol recovered from the Ford Focus' cupholder and concluded that the 9-millimeter Lugar cartridge casings recovered from the car had been fired by a gun. Tokay testified that the three casings recovered from the car were fired by the same unknown firearm. The evidence did not suggest any of the spent casings came from the gun in the cupholder. He testified, however that the Smith & Wesson pistol found in the cupholder is capable of seriously injuring or killing someone.
Hearing on Motion to Suppress
Archie filed a motion to suppress his recorded interview with Detective Scott, claiming that "his statements were taken in violation of Miranda v. Arizona, 384 U.S. 426 (1966), the Fourth Amendment, U.S. Const, amend. IV, the Fifth Amendment, U.S. Const, amend. V, and Tex. Code Crim. Proc. Ann. art. 38.22." Prior to trial, the trial court conducted a hearing on the motion to suppress.
Detective Scott, who was called by the State, was the only witness called at the hearing. Detective Scott testified that he identified Archie at the Humble Police Department on December 4, 2018 after Archie had been arrested for two outstanding warrants: felony evading arrest and a parole violation. The interview was recorded by Detective Scott's body camera. At the beginning of the recorded interview, Detective Scott asked Archie some preliminary questions including his name, date of birth, driver's license number, and address. Detective Archie then introduced himself and the following exchange occurred:
Detective Scott: I think you know what we need to talk about. We went to a scene last Thursday night. I know what
was in the car at that scene. I know there's a whole lot of different sides of the story. And I want to get your side of the story. There's people who get in these situations and it winds up being a self-defense type of deal and if that's the case, you know, we need to know that. . .
Archie: Are you talking about [Vaughn]?
Detective Scott: Yes, sir. We need to know . . .
Archie: I ain't got nothing to do with that.
Detective Scott: Okay, well we'll talk about that in a minute. I want to make sure we don't have any misunderstandings.
Detective Scott then read Archie his Miranda rights and asked Archie if he would talk to him. Archie replied:
Yeah, I'm talking to you. But I'm telling you once you get to acting like you don't believe me or whatever, I'm just not going to talk. I ain't got nothing to say.
Detective Scott responded:
Ok. I'll listen to whatever you got to say, man. So what happened with you and [Vaughn]?
During the interview, Archie stated he had nothing to do with Vaughn's murder. He told Detective Scott that he was with Vaughn the night of the shooting and that he and Vaughn had been smoking "weed" in Vaughn's car. Archie said Vaughn picked him up and dropped him off at home, and that Archie was home by 9:30 p.m., at which time he called his girlfriend. About eleven minutes into the interview, Archie terminated the interview.
Both parties agreed that everything on the recording after Archie terminated the interview should be suppressed. The State argued that Archie's statements following his Miranda warnings up until the time he terminated the interview were admissible because up until Archie terminated the interview, Archie had "expressed his desire to continue the interview until he wasn't believed." The State also argued that Archie's prQ-Miranda statements were admissible because they involved administrative questions. The State further argued that Detective Scott's prQ-Miranda statements were made solely to explain the purpose for the interview. The State argued that Archie's spontaneous denial of any involvement in Vaughn's murder was not elicited intentionally by Detective Scott, but rather was volunteered by Archie while Detective Scott explained the purpose for the interview.
Defense counsel argued that the entire recorded interview should be suppressed, because for the "first four minutes, [Detective Scott] asked [Archie] several questions before [his] Miranda rights were read" in an attempt to "bait" and "provoke" Archie to "make some sort of statement." He argued that Detective Scott used an illegal "two-step" interrogation method and circumvented the protections of Miranda by "baiting" Archie into giving him a statement. The following exchange then took place between defense counsel and the trial court:
Easterling: The case [Carter v. State] stands for that, that there is a difference between inadvertent questioning and deliberate two-step questioning to avoid Miranda rights. This is not inadvertent. This is not administrative. He said, "You know why I have you in here and what we're going to talk about?" "You know, we need to know that, whether it's self-defense or not," that is a question by a detective to him under any circumstances.
Court: It's not a question.
Easterling: It can reasonably be interpreted as a question, Your Honor -
Court: No.
Easterling: - to invoke a response.
Court: A question is a question. You can't change the definition of a question.
Danny Easterling was Archie's trial counsel.
Carter v. State, 309 S.W.3d 31 (Tex. Crim. App. 2010).
The trial court suppressed the portion of the interview occurring after Archie invoked his right to terminate the interview and ruled that any responses made to questioning prior to Detective Scott reading Archie his Miranda warnings, other than identifying factors, would be suppressed. The trial court clarified that any statements Archie made prior to the Miranda warnings that were not made in response to questioning would be admissible:
Court: All right. So any statements made prior to the Miranda warnings by the officer will be allowed. If there are any questions prior to the Miranda warnings by the officer, that will be suppressed. Any statements by your client made before the Miranda warnings without being questioned will be admitted.
The redacted videotaped interview was admitted at trial as State's Exhibit 54 ("Interview Video") and the State played it for the jury. At the time the videotaped interview was admitted, Archie renewed his previous objections and the trial court again overruled them.
Archie objected to the admission of the Interview Video before it was played for the jury.
Jury Charge Conference
While during his interview with Detective Scott, Archie initially denied any involvement in Vaughn's murder, at trial, Archie's counsel argued that Archie shot Vaughn in self-defense. The trial court included instructions in the jury charge concerning the law of self-defense, including an instruction in the abstract portion of the charge on the law of retreat to which defense counsel objected. After some discussion, the trial court overruled Archie's objection, and included the following instruction on the law of retreat in the final jury charge:
Archie did not testify at trial.
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[.]
In determining whether the defendant's belief that deadly force was immediately necessary was a reasonable belief, you may not consider the defendant's failure to retreat unless you find one of the following circumstances to be true beyond a reasonable doubt
1) The defendant did not have a right to be present at the location where the deadly force was used, or
2) The defendant provoked the person against whom the deadly force was used, or
3) The defendant was engaged in criminal activity at the time the deadly force was used.
The jury rejected Archie's claim of self-defense and convicted him of murder. The jury assessed Vaughn's punishment at fifty years' incarceration. This appeal ensued.
Discussion
A. Motion to Suppress
In his first two issues, Archie argues the trial court erred in denying his motion to suppress and in admitting the Interview Video at trial over his objection. He claims that his recorded statement is inadmissible because although he was not expressly questioned by Detective Scott prior to the reading of his Miranda rights, he was subjected to the functional equivalent of interrogation prior to receiving his Miranda warnings in violation of Miranda v. Arizona, 384 U.S. 436 (1966) and Article 38.22 of the Texas Code of Criminal Procedure. Archie also argues that the Interview Video is inadmissible because it was secured through a "two-step" interrogation technique the United States Supreme Court has condemned.
1. Standards of Review
a. Motion to Suppress
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019); State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). Under the bifurcated standard, the trial court is given almost complete deference in its determination of historical facts, especially if based on an assessment of demeanor and credibility, and the same deference is afforded the trial court for its rulings on application of law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an evaluation of demeanor and credibility. Martinez, 570 S.W.3d at 281 (citing Grain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)); see also Carter v. State, 309 S.W.3d 31, 40 (Tex. Crim. App. 2010) (applying "highly deferential review" to question "of an officer's subjective 'deliberateness' in the 'question first, warn later' context"). "For mixed questions of law and fact that do not fall within that category, a reviewing court may conduct a de novo review." Martinez, 570 S.W.3d at 281. We review questions of law de novo. Id.
"We view the record in the light most favorable to the trial court's ruling and uphold the ruling if it is supported by the record and is correct under any theory of the law applicable to the case." Ruiz, 577 S.W.3d at 545; Balderas v. State, 629 S.W.3d 610, 613-14 (Tex. App.-Houston [1st Dist.] 2021, no pet.). When a trial judge denies a motion to suppress and does not enter findings of fact, "the evidence is viewed 'in the light most favorable to the trial court's ruling' and we 'assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.'" Herrera v. State, 241 S.W.3d 520, 527 (Tex. Crim. App. 2007) (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)).
b. Admission of Interview Video
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Henley, 493 S.W.3d at 83; see also Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (stating trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree").
Generally, the erroneous admission of evidence constitutes non-constitutional error, subject to a harm analysis. We may reverse only if the error affects the substantial rights of the accused. See Tex. R. App. P. 44.2(b); Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018). A substantial right is affected when the error had a "substantial and injurious effect or influence in determining the jury's verdict." Id.; see also King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Conversely, an error does not affect a substantial right if we have "fair assurance that the error did not influence the jury, or had but a slight effect." Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
2. Applicable Law
The Fifth Amendment to the United States Constitution commands that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const, amend. V. The warnings set forth in Miranda "were established to safeguard an uncounseled individual's constitutional privilege against self-incrimination during custodial interrogation. Herrera, 241 S.W.3d at 525 (citing Miranda, 384 U.S. at 442-57). The Supreme Court has defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. (citingMiranda, 384 U.S. at 444).
Article 38.22, Section 3, of the Texas Code of Criminal Procedure governs the admissibility of oral statements made during a custodial interrogation in a criminal proceeding. Article 38.22, Section 3 states in relevant part that:
No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless . . . prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning[.]
Tex. Code Crim. Proc. art. 38.22 § 3(a)(2). Article 38.22, Section 2 (a) describes the warnings that must be given to an accused. It requires that:
(a) the accused, prior to making the statement, either receive [] from a magistrate the warning provided in Article 15.17 of this code or receive[] from the person to whom the statement is made a warning that:
1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time; and
(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waive[s] the rights set out in the warning prescribed by Subsection (a) of this section.
Tex. Code Crim. Proc. art. 38.22 § 2(a)-(b). Miranda warnings and the requirements of Article 38.22 are mandatory when there is a custodial interrogation. Herrera, 241 S.W.3dat526.
The Section 2(a) warnings are "virtually identical to the Miranda warnings" except that Miranda does not require the warning that an accused "has the right to terminate the interview at any time." Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
3. Analysis
An interrogation refers to "(1) express questioning and (2) 'any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.'" Alford v. State, 358 S.W.3d 647, 653 (Tex. Crim. App. 2012) (citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).
Archie argues that the entirety of his recorded statement is inadmissible because Detective Scott engaged in the functional equivalent of interrogation before giving him his Miranda warnings. He claims that "in the absence of Miranda warnings, any custodial statements made by a defendant except routine questions related to administrative matter such as booking are inadmissible." Archie also argues that the entirety of his recorded statement is inadmissible because Detective Scott engaged in an impermissible "question first, Mirandize later two-step questioning technique." The two-step interrogation technique refers to the "question first, warn later" interrogation technique where officers interrogate a suspect without providing Miranda warnings, obtain a confession or incriminating statement, administer the Miranda warnings after, and later get the suspect to repeat the incriminating statement. Vasquez v. State, 483 S.W.3d 550, 553 (Tex. Crim. App. 2016). If the interrogator uses a "deliberate" two-step interrogation technique, post-Miranda "statements that are related to the substance of [prQ-Miranda] statements must be excluded unless curative measures are taken before the [post-Miranda] statement is made." Martinez v. State, 272 S.W.3d 615, 626 (Tex. Crim. App. 2008) (citingMissouri v. Seibert, 542 U.S. 600, 619 (2004)).
Archie claims that Detective Scott engaged in the impermissible two-step interrogation technique because he secured a statement from Archie before giving him his Miranda warnings. Archie likens his interview with Detective Scott to the "Christian Burial" speech in Brewer v. Williams, 430 U.S. 387 (1977). In Brewer, two police officers were driving Williams, a suspect in the disappearance of a missing girl, to another city for interrogation. Id. at 391-92. During the drive, one of the officers told the deeply religious suspect that the missing girl's parents were entitled to a "Christian burial for the little girl who was snatched away from them on Christmas (E)ve and murdered." Id. at 392-93. Williams then directed the officers to the girl's body. Id. at 393. The Supreme Court held that the officer's speech resulted in a Sixth and Fourteenth Amendment violation of Williams' right to counsel even though the officer did not direct any questions to Williams. Id. at 397-98. The Court determined that the officer had "deliberately and designedly set out to elicit information from Williams just as surely as and perhaps more effectively than if he had formally interrogated him." Id. at 399.
Williams surrendered to police in Davenport, Iowa, where he was read his Miranda warnings, and was being driven by the officers to Des Moines, Iowa. Brewer v. Williams, 430 U.S. 387, 390-91 (1977).
Archie's analogy to Brewer is unavailing. First, the decision in Brewer centered on the suspect's right to the assistance of counsel, not the constitutional privilege against compulsory self-incrimination. Id. at 397-98. Second, Brewer involved a mental-health patient whom the officer knew was deeply religious. Id. at 392. And last, the officer's comments to Williams in Brewer "were both lengthy and directed at the defendant." See Nelson v. State, 463 S.W.3d 123, 130 (Tex. App.-Houston [1st Dist.] 2015, pet. ref d) (distinguishing Brewer) By contrast, Detective Scott's brief introductory comments to Archie were not designed to elicit an unwarned statement, nor were they likely to provoke an immediate response from Archie. See Banks v. State, No. 14-11-00722-CR, 2013 WL 1907884, at *6 (Tex. App.-Houston 14th Dist.] May 7, 2013, pet. ref d) (not designated for publication) (holding no interrogation occurred when suspect made statement after introductory remarks by police); Camarillo v. State, 82 S.W.3d 529, 535-36 (Tex. App.-Austin 2002, no pet.) (holding no interrogation occurred when suspect made statement immediately after investigating officer introduced himself). The statements were introductory in nature and for the purpose of explaining the reasons for the interview.
In Nelson, we held that police officers who discussed a case with each other in hushed voices and with the radio turned up so they could not be heard by their suspect as they drove her to jail "should not be charged with knowledge that their discussion was reasonably likely to elicit an incriminating response." Nelson v. State, 463 S.W.3d 123, 131 (Tex. App.-Houston [1st Dist.] 2015, pet. ref d). Even though the suspect had invoked her right to counsel, "their actions did not constitute interrogation within the meaning of Miranda\_.Y Id.
Nor is this case like Missouri v. Seibert, 542 U.S. 600 (2004), upon which Archie's trial counsel relied. In that case, Seibert was arrested for murder and confessed to the murder before she was read her Miranda warnings. Id. at 604-05. Twenty minutes later, the officer to whom she confessed returned, administered Miranda warnings, and obtained a signed waiver and second confession from Seibert. Id. at 605. Seibert sought to exclude both the warned and unwarned statements from trial. Id. The trial court excluded only the unwarned statement and Seibert was convicted of murder. Id. at 606. The Missouri Supreme Court reversed, stating that because the interrogation was continuous, the second statement was the product of the invalid first statement. Id. The U.S. Supreme Court held that the warned statements were inadmissible and created a test for determining "whether Miranda warnings delivered midstream" are effective. Id. at 615. In the present case, unlike Seibert, Archie did not confess to Vaughn's murder before or after his Miranda warnings were given. To the contrary, he denied any involvement in the murder during the interview. Moreover, as discussed below, Archie was not interrogated about the crime before he was read his Miranda warnings.
The test considers the following factors:
the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first.Missouri v. Seibert, 542 U.S. 600, 615 (2004). Archie does not discuss any of these factors.
Archie's reliance on Rhode Island v. Innis, AA6 U.S. 291 (1980) is also misplaced, and it supports the State's argument in any event. In Innis, a suspect arrested for a taxi robbery who had been advised multiple times of his Miranda rights asked for an attorney. Id. at 294. The suspect was put in a police car with three officers who were instructed not to question him. Id. On the way to the police station, two officers engaged in a conversation about a shotgun that went missing after another taxi driver's murder and discussed the threat the missing weapon posed to children, and the suspect volunteered to show them where the shotgun was. Id. at 294-95. The Supreme Court held that the suspect was not interrogated in violation of his Miranda rights. Id. at 302. The Court concluded "that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." Id. at 300-01. The Court stated,
Given the fact that the entire conversation appears to have consisted of no more than a few off hand remarks, we cannot say that the officers should have known that it was reasonably likely that [the suspect] would so respond. This is not a case where the police carried on a lengthy harangue in the presence of the suspect.Id. at 303. Interrogation results from "words or actions on the part of the police" that the police "should know are reasonably likely to elicit an incriminating response." Id. at 301.
The State argues that the portion of the interview occurring before Detective Scott read Archie his Miranda rights "consisted only of Detective Scott's requests for biographical data and his brief introductory comments." Thus, the State argues, the trial court properly refused to suppress the Interview Video because it was not the product of interrogation. We agree.
Before giving Archie his Miranda warnings, Detective Scott asked Archie for biographical information (name, date of birth, driver's license number, and address). These preliminary requests for biographical data do not constitute "interrogation" for purposes of Miranda. State v. Cruz, 461 S.W.3d 531, 539 (Tex. Crim. App. 2015). Detective Scott also made the following introductory remarks before reading Archie his Miranda rights:
I think you know what we need to talk about. We went to a scene last Thursday night. I know what was in the car at that scene. I know there's a whole lot of different sides of the story. And I want to get your side of the story. There's people who get in these situations and it winds up being a self-defense type of deal and if that's the case, you know, we need to know that[.]
Archie interrupted Detective Scott's introductory comments to ask if the interview was related to Vaughn:
Archie: Are you talking about [Vaughn]?
Detective Scott: Yes, sir. We need to know . . .
Archie: I ain't got nothing to do with that.
Detective Scott: Okay, well we'll talk about that in a minute. I want to make sure we don't have any misunderstandings. Detective Scott then read Archie his Miranda rights.
Detective Scott's pre-Miranda statement to Archie is not interrogation. During his brief introduction, Detective Scott explained the purpose of the interview to Archie without posing any questions. As the trial court explained with respect to Detective Scott's introductory remark:
Court: It's not a question.
Easterling: It can reasonably be interpreted as a question, Your Honor -
Court: No.
Easterling: - to invoke a response.
Court: A question is a question. You can't change the definition of a question.
While Archie volunteered a statement before Detective Scott read him his Miranda warnings, that does not render his statement inadmissible. The protections of Miranda do not exist to "protect suspects from their own propensity to speak, absent some police conduct which knowingly tries to take advantage of the propensity." Jones v. State, 795 S.W.2d 171, 176 n.5 (Tex. Crim. App. 1990).
Detective Scott's statement is analogous to the one made in Banks v. State, No. 14-11-00722-CR, 2013 WL 1907884, at *6 (Tex. App.-Houston [14th Dist] May 7, 2013, pet. ref d) (mem. op., not designated for publication). In Banks, a detective told a suspect who had not been given Miranda warnings, "Well, let me get started. Let me make some notes because we are going to talk for a little while, I'm sure," and another officer said, "You seem like you've got a pretty good head on your shoulders," at which point, the suspect interrupted and talked for forty minutes, giving incriminating statements, before the warnings were given. Id. at *6. The court held no interrogation had occurred because no questions had been asked. Id. at *7.
Moreover, contrary to Archie's argument, Detective Scott's introductory remarks were not a concerted two-step "midstream Miranda warning" interrogation technique. Detective Scott's pre-Miranda conversation with Archie was "not part of a deliberate plan to undermine a suspect's Miranda protections." See Carter, 309 S.W.3d at 41. Prior to Detective Scott reading Archie his Miranda warnings, there was no questioning, other than preliminary questions incident to booking and a brief statement explaining the purpose of the interview. There was no testimony offered at the suppression hearing that Detective Scott's remarks prompted Archie to make an immediate response.
We thus conclude that Archie's prQ-Miranda statements were not in response to custodial interrogation or the result of an improper two-step interrogation technique.
b. The Voluntariness Inquiry
We must now consider whether Archie's statements to Detective Scott were made voluntarily. See Carter, 309 S.W.3d at 41. The factfinder must examine "all of the circumstances and the course of police conduct." Id. The Court of Criminal Appeals previously held that the trial court is the '"sole and exclusive trier of fact and judge of the credibility of the witnesses,' particularly when a motion to suppress is based on the voluntariness of a confession." Id. at 41-42 (quoting Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007)). We give "great deference" to the trial court's admission or exclusion of such evidence, "which will be overturned on appeal only where a flagrant abuse of discretion" is demonstrated. Id. at 42.
The evidence establishes that the "colloquy" between Detective Scott and Archie during the interview was "conversational" and that Archie was "calm and cooperative." See id. at 40-41 (holding evidence supported trial court's determination that officer's failure to administer Miranda warnings was "simply an oversight," and finding that incriminating statements made before warnings were administered were not elicited by "question first, warn later" technique). There is no evidence Detective Scott was hostile or attempted to create a volatile, coercive, or threatening environment in his conversation with Archie. See id. The trial court stated during the hearing on the motion to suppress:
I think the evidence shows the defendant was not under any kind of coercion, duress. The officer gave him water, I believe. Based on the totality of the circumstances he agreed and waived those right because he began to answer the questions not under coercion, duress, or any type of force being used against him by the officer.
Archie did not offer evidence during the hearing that anything Detective Scott said or did caused him to make incriminating statements. See Moron v. State, 213 S.W.3d 917, 923 (Tex. Crim. App. 2007) (noting that it was "significant" that defendant did not testify at suppression hearing that questioning officer's statement caused defendant to incriminate himself).
Detective Scott was the only witness at the suppression hearing.
We thus conclude that the statements Archie made to Detective Scott during the interview were made voluntarily. See Carter, 309 S.W.3d at 42. The trial court did not err in denying Archie's Motion to Suppress.
4. Admission of Evidence
In light of our holding that the trial court did not err in denying Archie's motion to suppress, we hold the trial court did not abuse its discretion in admitting Archie's Interview Video into evidence. And even if the trial court had erred, the error would be harmless. As the State points out, during the interview, Archie denied any involvement in Vaughn's murder and made no incriminating statements. See Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009) (holding any error in admission of noncustodial conversation was harmless because "appellant made no incriminating statements" during conversation); cf. Jimenez v. State, AA6 S.W.3d 544, 548 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (concluding admission of written statement that was made without receipt of Miranda warnings was harmless because it "did not contribute to the adjudication" of defendant's guilt, given other inculpatory evidence). During the interview, Archie repeatedly stated he had nothing to do with Vaughn's death.
Given our analysis of Archie's pre- and post-Miranda statements, the voluntary nature of the statements, and our review of the record, we conclude the trial court did not err in denying Archie's motion to suppress or in admitting the Interview Video. We overrule Archie's first and second issues.
B. The Jury Charge
In his third issue, Archie argues the trial court erred by including an instruction in the jury charge on the law of retreat in connection with his self-defense claim.
1. Standard of Review
In analyzing a potential jury charge error, we use a two-step review to determine whether reversal is required. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005); Vernon v. State, 571 S.W.3d 814, 826 (Tex. App.-Houston [1st Dist.] 2018, pet ref d). We first decide whether error exists in the charge. Ngo, 175 S.W.3d at 744. If we determine an error exists, we next determine whether sufficient harm resulted from the error requiring reversal. Id. The level of harm necessary for reversal depends on whether the appellant properly objected to the error. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). If an appellant fails to preserve error, a charge error is reversible only if the error caused "egregious harm." Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020). When as here, an appellant preserves error, the error is reversible only if it caused some harm. Id. Under the "some harm" standard, "the presence of any harm, regardless of degree ... is sufficient to require a reversal." Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App. 2019) (emphasis in original). Both harm standards require the appellant to suffer actual, as opposed to theoretical, harm. Id.
2. Applicable Law
The use of deadly force, when justified, is a defense to murder. Gilbert v. State, 575 S.W.3d 848, 863 (Tex. App.-Texarkana 2019, pet. ref'd); see also Tex. Penal Code §§ 9.02 ("It is a defense to prosecution that the conduct in question is justified under this chapter."); id. at §§ 9.31-9.32 (enumerating requirements for establishing claim of self-defense). Subject to certain exceptions, Section 9.31(a) of the Texas Penal Code, entitled "Self-Defense," provides that "a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." Id. § 9.31(a).' Section 9.32(a), entitled "Deadly Force in Defense of Person," further provides that "a person is justified in using deadly force against another":
"Reasonable belief is defined as "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." TEX. PENAL CODE § 1.07(a)(42).
A defendant who claims self-defense has the burden to produce evidence in support of the defense while the State has the burden of persuasion to disprove the issues raised. Harris v. State, No. 01-20-00140-CR, 2022 WL 17684262, at *2, ____ S.W.3d. ____, _____ (Tex. App.-Houston [1st Dist] Dec. 15, 2022, pet. filed) (citing Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018)). The burden of persuasion requires the State to prove its case "beyond a reasonable doubt." Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.Id. § 9.32(a).
Previously, the self-defense statute also required the factfinder to consider whether "a reasonable person in the actor's situation would not have retreated." Morales v. State, 357 S.W.3d 1, 4 (Tex. Crim. App. 2011) (citing Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986)). Following legislative changes in 2007, the self-defense statute no longer contains a general duty to retreat. Id. at 4- 5. Instead, Sections 9.31(e) (addressing use of force) and 9.32(c) (addressing use of deadly force) now provide that in using force or deadly force:
A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
Tex. Penal Code §§ 9.31(e), 9.32(c). Sections 9.31(f) and 9.32(d) further provide that if the provisions of Section 9.31(e) or Section 9.32(c) are met, "a fact finder may not consider whether the actor failed to retreat" in considering whether the actor "reasonably believed that the use of [force or] deadly force was necessary." Id. § 9.31(f) (addressing use of force); § 9.32(d) (addressing use of deadly force).
3. Analysis
At trial, defense counsel advanced the theory that Archie shot Vaughn in self-defense. The jury charge thus included instructions on the law of self-defense.
During an initial charge conference on May 14, 2021, the trial court presented the parties with a proposed charge. Defense counsel proffered a separate charge that omitted any instruction on the duty to retreat. The trial court rejected Archie's proposed charge but invited defense counsel to state his specific objections to the court's prepared charge. Because both parties agreed that Archie was "not entitled to the presumption of reasonableness" instruction, defense counsel argued that it was not necessary to include an instruction on the law of retreat in the charge. He argued that the "duty to retreat" is "integral with the presumption" of reasonableness instruction. The trial court disagreed, explaining that the "duty to retreat" has "nothing to do with" with the reasonableness presumption because the two are different sections.
Section 9.32(b) addresses the presumption of reasonableness as it concerns a person's use of deadly force. It provides that an actor's belief that the use of deadly force "was immediately necessary ... is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly 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 [aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery];
(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.TEX. PENAL CODE § 9.32(b).
The trial court heard the parties' remaining objections and resumed the charge conference on May 17, 2021, at which time the court presented the parties with a revised charge. Tracking the language of Sections 9.31(a) and 9.32(a), the trial court included the following self-defense instruction in the abstract portion of the charge:
Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person's use or attempted use of unlawful force [.]
The use of force against another is not justified in response to verbal provocation alone[.]
A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and he reasonably believes that such deadly force is immediately necessary
(1) to protect himself against the other person's use or attempted use of unlawful deadly force, or
(2) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
The trial court also submitted an instruction on the law of retreat pursuant to Section 9.32(c) and (d) providing that:
A person who has a right to be present at the location where the deadly force was used[,] who has not provoked the person against whom the deadly force was used[,] and [who] was not engaged in criminal activity at the time the deadly force was used. It is not required to retreat before using deadly force. You may consider whether the defendant failed to retreat.
Defense counsel objected to the inclusion of the instruction on the law of retreat, requesting the entire instruction be removed because while it attempted "to speak about the reasonableness presumption in the statute of self-defense, Article 9.32, [] it doesn't cover all of that." Archie argued that the objectionable instruction talked "about the criminal activity or provocation being at the location where" the defendant "has a right to be" but that "is an incomplete recitation and instruction on the law of self-defense, incomplete, calculated to injure the rights of the defendant and would cause harm to him under due process, and as well as a comment on the evidence." Defense counsel requested that the entire paragraph on the law of retreat be removed, or failing that, that the trial court "at least remove the last sentence" which stated that the jury could "consider whether the defendant failed to retreat."
The trial judge explained that she had included the instruction on the law of retreat in the charge because "there was some evidence as related to the issue of whether there was criminal activity." She continued, "I guess the jury will make a determination if, in fact, that was considered criminal activity. And so that's why the duty-Subsection (e) of Section 9.31 of the Texas Penal Code is in this charge." The State suggested that to address defense counsel's concern, the trial court could add additional language in the instruction stating that:
The court subsequently explained she was referring to Section 9.32 (addressing use of deadly force), not 9.31 (addressing use of force).
In determining whether the defendant's belief that deadly force was immediately necessary, was a reasonable belief, you may not consider the defendant's failure to retreat unless you find one of the following circumstances to be true beyond a reasonable doubt: One, the defendant did not have a right to be present at the location where the deadly force was used, or the defendant provoked the person against whom the deadly force was used, or the defendant was engaged in criminal activity at the time the deadly force was used.
Defense counsel responded that "[i]f you're going to do it as the State proposes . . . again I would object. It's incomplete. It's not fully quoting and laying out the statute. And it's calculated to injure the rights of the defendant, as well as to cause him harm, violating his rights of due process to a fair trial." The trial court agreed to add the additional language the State suggested and included the proposed language in the final jury charge over defense counsel's objection.
During the charge conference on May 17, 2021, defense counsel stated he would file his proposed instructions on self-defense, which he filed that same day, filing a document titled "Defendant's Requested Jury Instruction on Self-Defense. Archie's proposed instructions on self-defense included a no-duty-to-retreat instruction, instructing the jury that if Section 9.32(c) was not applicable, the jury could consider the failure to retreat to determine the reasonableness of Archie's belief that the use of deadly force was necessary.
The final jury charge instructed the jury that:
A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person's use or attempted use of unlawful force.
The use of force against another is not justified in response to verbal provocation alone.
A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and he reasonably believes that such deadly force is immediately necessary
(1) to protect himself against the other person's use or attempted use or unlawful deadly force, or
(2) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery [.]
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[.]
In determining whether the defendant's belief that deadly force was immediately necessary was a reasonable belief, you may not consider the defendant's failure to retreat unless you find one of the following circumstances to be true beyond a reasonable doubt
1) The defendant did not have a right to be present at the location where the deadly force was used, or
2) The defendant provoked the person against whom the deadly force was used, or
3) The defendant was engaged in criminal activity at the time the deadly force was used.
During deliberations, the jury sent out a question that stated:
Can we please see the law that defines when a drug deal becomes a crime? At what point in time, does it become a crime? Was the deceased and defendant engaged in criminal activity? And therefore, self defense is off the table?
The court responded, "Please refer to the jury instructions that contain[] the law that governs this case." The jury charge included in the clerk's record also reflects that during deliberations the jury underlined the following language in the no-duty-to-retreat instruction:
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[.]
On appeal, Archie argues that the duty to retreat instruction was improper because "[t]here was no factual dispute that [Archie] was trying to purchase a quantity of marijuana" from Vaughn. He states, "It is error to charge a jury on inapplicable law of self defense over Appellant's objection." A proper jury charge, Archie argues, "would simply [have] instructed] the jury that in determining the reasonableness of [Archie's] actions, it could consider whether he could/should have retreated."
The charge Archie proffered during the charge conference did not include an instruction on the duty to retreat.
We begin our analysis with Archie's argument that it was "error to charge a jury on inapplicable law of self-defense over Appellant's objection" because "[t]here was no factual dispute that [Archie] was trying to purchase a quantity of marijuana" from Vaughn. During the charge conference, the trial court judge explained that she was including the instruction on the law of retreat in the charge because "there was some evidence as related to the issue of whether there was criminal activity." She continued, "I guess the jury will make a determination if, in fact, that was considered criminal activity. And so that's why the duty-Subsection (e) of Section 9.31 of the Texas Penal Code is in this charge."
The court subsequently explained she was referring to Section 9.32 (addressing use of deadly force), not 9.31 (addressing use of force).
Defense counsel did not dispute the trial court's understanding that the issue of "criminal activity" was an issue the jury would have to decide. Nor did Archie stipulate to criminal activity or argue, as he now argues on appeal, that the objectionable instruction was not the law of the case. Archie's counsel argued during closing argument that this was a "drug deal that went bad," but his argument is not evidence. See Cary v. State, 507 S.W.3d 750, 755 (Tex. Crim. App. 2016) (stating that "arguments of the parties and their trial theories are not evidence"). Text messages and Instagram communications recovered from Vaughn's phone reflected a planned meeting between Vaughn and a person named "Chulo" for the sale of an ounce of marijuana, but the evidence also reflected that Vaughn apparently was not able to obtain the ounce of marijuana prior to the planned meeting. And in Archie's videotaped interview, he told Detective Scott that he was with Vaughn the night of the shooting and that he and Vaughn had been smoking "weed" in Vaughn's car. Archie stated that Vaughn picked him up and dropped him off at home, and that Archie was home by 9:30 p.m., at which time he called his girlfriend. And Vaughn's mother testified she did not know whether Vaughn planned to do a drug deal the night he was killed. Thus, as the trial court correctly noted, "there was some evidence as related to the issue of whether there was criminal activity" the jury would have to decide. It was not error for the trial court to include the no-duty-to-retreat instruction in the charge.
Indeed, in his own proposed instructions, filed following the charge conference, Archie included a no-duty-to-retreat instruction, and in his brief, he argues that a proper jury charge "would simply [have] instruct[ed] the jury that in determining the reasonableness of [Archie's] actions, it could consider whether he could/should have retreated." Thus, it is clear that Archie's objections focused on his concern that the instruction was a "comment on the evidence" and "an incomplete recitation and instruction on the law of self-defense" designed to "injure the rights of the defendant." The State argues that the jury's charge properly followed the applicable law. We agree.
An appellant who raises charge error for the first time on appeal may only obtain a reversal if the error resulted in "egregious harm." Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004).
Generally speaking, "a jury charge that tracks the language of the relevant statute is sufficient and therefore not erroneous." Hernandez v. State, 340 S.W.3d 55, 61 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (citing Casey v. State, 215 S.W.3d 870, 886-87 (Tex. Crim. App. 2007)); see also Whitney v. State, 396 S.W.3d 696, 703 (Tex. App.-Fort Worth 2013, pet. ref'd) ("The court of criminal appeals has held that a trial court will not be held to have erred in its jury charge by tracking the law as set out by the legislature."). The jury's instruction on self-defense, and in particular the no-duty-to-retreat instruction, mirrors Sections 9.32(c) and (d) of the Penal Code. Thus, the trial court tracked the language of the relevant statute.
The only case Archie relies on in support of his charge argument is Rains v. State, 604 S.W.2d 118 (Tex. Crim. App. 1980), in which a jury was charged with a version of the law of self-defense that was not in effect when the offense was committed. Id. at 119. The court thus held that the instruction "had no application" to the trial. Rains is inapposite, as the jury charge in this case tracks the current version of the law on the duty to retreat, which given the evidence presented at trial, was a proper instruction for the court to include.
We believe this case is more aligned with Gilbert v. State, 575 S.W.3d 848 (Tex. App.-Texarkana 2019, pet. ref'd), upon which the State relies. In Gilbert, the defendant ("Gilbert") was accused of murdering Tyrone Phelps ("Phelps") after a drug deal went awry. Id. at 855. Gilbert claimed he shot Phelps in self-defense. Id. at 862. The jury found Gilbert guilty of murder. Id. at 854. On appeal, Gilbert argued, among other things, that the trial court erred by including an instruction on the failure to retreat in the jury charge. Id. at 866. The Gilbert jury charge stated:
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.
Therefore, in deciding whether the state has proved that the defendant did not reasonably believe his use of deadly force was necessary, you must not consider any failure of the defendant to retreat that might be shown by the evidence if you find both-
1. the defendant did not provoke [Phelps], the person against whom the defendant used deadly force; and
2. the defendant was not engaged in criminal activity at the time he used the deadly force.
If you do not find both 1 and 2, you may consider any failure of the defendant to retreat that might be shown by the evidence in deciding whether the defendant reasonably believed his use of deadly force was necessary.Id. Gilbert argued that the trial court erred in giving the instruction "because it was undisputed at trial that [he] was engaged in criminal activity when he used deadly force" and the charge "was likely to confuse the jury so that it would conclude that he had a duty to retreat." Id. The court observed that the charge did not contain an instruction indicating Gilbert had a duty to retreat. Id. at 867. The court of appeals held the charge
correctly instructed the jury under Section 9.32(c) about when a defendant is not required to retreat. It also correctly instructed the jury under Section 9.32(d) that, if it found that Gilbert met the conditions of subsection(c), then it must not consider evidence of Gilbert's failure to retreat .... [T]he trial court then instructed the jury that, if it found that Gilbert did not meet the conditions of subsection (c), then it may consider any evidence of Gilbert's failure to retreat when determining whether he reasonably believed that his use of deadly force was necessary. Gilbert admits that he did not meet
the conditions of Section 9.32(c). Thus, this final instruction was a correct statement of "the law applicable to the case."Id. As the court concluded, to place this instruction in the proper context, it was also necessary to instruct the jury regarding Section 9.32, subsections (c) and (d). Id.
As in Gilbert, the jury charge here tracked the language of Section 9.32(c) of the Texas Penal Code and correctly instructed the jury that a defendant is not required to retreat before using deadly force under certain circumstances. Then, pursuant to Section 9.32(d), the charge properly instructed the jury that in determining "whether the defendant's belief that deadly force was immediately necessary was a reasonable belief," the jury could "not consider the defendant's failure to retreat" unless it found beyond a reasonable doubt that the defendant (1) did not have a right to be present at the location where the deadly force was used, or (2) provoked the person against whom the deadly force was used, or (3) engaged in criminal activity at the time the deadly force was used. While the instruction does not track the language of Section 9.32(d) exactly, it correlates with it, explaining when it is improper for jurors to consider a defendant's failure to retreat. We thus conclude the no-duty-to-retreat instructions tracked the language of the relevant statute and were a correct statement of "the law applicable to the case."
Because we hold the jury charge was proper, we need not perform a harm analysis.
Archie further argues that the jury's underlining on the charge, coupled with the jury's question to the trial court, "show the jury was confused about the application of the duty to retreat as set out in the jury charge." He asserts that the "instruction led them to believe that self defense was 'off the table' because of the attempt to purchase the drug." According to Archie, the trial court's "error in giving the charge was compounded when it failed to clarify the charge in light of the jury's note 2." But the record does not reflect that Archie objected to the trial's court response to the jury's question or that he proposed any other response. To the contrary, Archie expressly agreed to the court's response to the jury question. He thus has waived any argument on appeal challenging the trial court's answer to the jury. See Hicks v. State, No. 14-01-00775-CR, 2002 WL 31318622, at *1 (Tex. App.-Houston [14th Dist.] Oct. 17, 2002, pet. ref d) (mem. op., not designated for publication) (holding appellant's failure to object to trial court's answer to jury's question during deliberations waived error).
We overrule Archie's third issue.
Conclusion
We affirm the trial court's judgment.