AFFIRMED and Opinion Filed June 1, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00220-CR
ANTHONY QUINN RIDER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1876651-P
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Garcia Opinion by Justice Garcia A jury found appellant guilty of murder and assessed punishment at twenty-
seven and a half years in prison. In three issues, appellant now argues the trial court
erred: (i) in denying a request for an apparent danger instruction in the guilt–
innocence charge; (ii) by failing to include both murder theories in the self–defense
application instruction; and (iii) by admitting speculative testimony concerning the
victim’s state of mind. Finding no reversible error, we affirm the trial court’s
judgment. I. BACKGROUND
On the night in question, Dallas police responded to a reported shooting.
When they arrived, Jimar Nichols was lying face down on the ground and had no
pulse. When paramedics arrived, they confirmed that Nichols was dead.
Once inside the ambulance, the paramedics cut Nichols’s shirt open to check
for wounds. As they pulled the shirt from underneath him, a handgun with a
chambered bullet fell out. The gun was two toned silver and black.
Detective Frank Serra was en route to the scene when he received a call about
a suspect in a white pickup truck. The truck was later identified as belonging to
appellant.
During his investigation, Detective Serra located two surveillance videos, one
from a house on Lewiston Street (the “Lewiston video”) and one from a house on
Hustead Street (the “Hustead video”). The Hustead video shows appellant arriving
at the scene in a white truck. Another man, identified as Harvey Hughes, arrived
later, accompanied by Nichols.
After Hughes and Nichols arrived, the video shows Nichols standing by the
passenger side of appellant’s truck, facing the passenger window. Appellant then
walks from the driver’s side of the truck, around the back of the truck, to the
passenger side. When Nichols notices appellant, he turns to face him. As Nichols
begins walking toward appellant, appellant points a gun at him and begins to fire.
–2– Nichols runs from appellant and falls to the ground, and appellant’s truck quickly
leaves the area. Witnesses reported that Hughes shot at appellant as he drove away.
Detective Serra obtained a warrant for appellant’s arrest and a search warrant
for his home. The white truck was found in appellant’s garage and had two bullet
defects in it. Four shell casings were found in the bed of the truck.
In appellant’s post-arrest interview that was admitted into evidence and
published for the jury, appellant told Detective Serra that he and his cousin had been
in the area selling “weed.” He said he was standing outside his truck when Hughes
and another “guy” approached him and said he was not supposed to be there.
Appellant had a problem with Hughes because he was always “starting stuff,” but
said he did not know Nichols.
Appellant claimed that he got back in the truck, and Hughes said that he was
going to get a gun. Hughes began walking toward a nearby house. Appellant said he
could not leave because Hughes’s car had blocked his car from behind. He also said
that someone told him, “They got guns, they’re going to kill you.” Nichols walked
to the passenger side of appellant’s truck. Appellant jumped out of the truck when
he saw Nichols display a gun, walked around the back of the truck, and began
shooting at Nichols. Nichols held the gun in front of his body and according to
appellant, the gun was all black. Appellant then jumped back in the truck and drove
away as Hughes began firing at him. Appellant said he dropped his gun out the
window as he drove away while shooting.
–3– Detective Serra also spoke with Hughes. Hughes told him where to retrieve a
pistol.
Appellant was charged with murder under two different theories: (1)
intentionally and knowingly causing Nichols’s death by shooting him with a gun,
and (2) committing an act clearly dangerous to human life by shooting Nichols with
a firearm causing his death. The case was tried to a jury.
The Lewiston and Hustead videos were admitted into evidence at trial and
were published to the jury. Detective Serra testified about the videos and his
investigation.
The gun that was used to shoot Nichols was never recovered. The State’s
ballistics expert testified that several different types of shell casings were recovered
from the scene and opined that none of the casings could have been fired from
Nichols’s gun. The shell casings in the back of appellant’s truck were identified as
coming from Hughes’s gun.
The medical examiner testified that Nichols suffered two gunshot wounds—
one to his left forearm and one to his chest. The chest wound perforated the heart
and pericardia and caused Nichols’s death.
The defense did not contest that appellant shot and killed Nichols. Instead, the
defensive theory was that the shooting was justified because it was immediately
necessary for appellant to defend himself from Nichols’s use or attempted use of
deadly force.
–4– The jury found appellant guilty of murder and assessed punishment at twenty-
seven years in prison. The trial court entered judgment in accordance with the
verdict, and this timely appeal followed.
II. ANALYSIS
A. Apparent Danger Instruction
The disputed issue at trial was whether appellant acted in self-defense.
Appellant’s first issue argues that the trial court erred by refusing an “apparent
danger” instruction to accompany the instruction on self-defense.
Section 9.32 of the Texas Penal Code provides, in relevant part, that “(a) A
person is justified in using deadly force against another: (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[.]” TEX. PENAL CODE ANN. § 9.32(a).
In turn, Section 9.31 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.” See TEX. PENAL CODE ANN. § 9.31(a). Section 1.07 of the Code
defines the term “reasonable belief” to mean a “belief that would be held by an
ordinary and prudent [person] in the same circumstances as the actor.” TEX. PENAL
CODE ANN. § 1.07(42). The abstract portion of the charge tracked these definitions.
–5– It is well-settled that a defendant has the right to defend oneself against
apparent danger to the same extent as if the danger was real. Hamel v. State, 916
S.W.2d 491, 493 (Tex. Crim. App. 1996). Accordingly, the Court of Criminal
Appeals has held that if the evidence at trial raises the issue of self-defense—whether
against actual or apparent danger—the defendant has the right to a jury instruction
on the issue of self-defense. Id. And in Jones v. State, the court held that when the
issue is raised by the evidence, a defendant is entitled to a properly requested
instruction on his right to defend himself against an “apparent danger,” as viewed
from the standpoint of the actor. Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim.
App. 1976).
But the Court of Criminal Appeals subsequently clarified its holding in
Jones, concluding that it was only error to refuse to give an “apparent danger”
instruction in cases in which the jury was not otherwise fully instructed on the law
of self-defense. Valentine v. State, 587 S.W.2d 399, 400–01 (Tex. Crim. App. 1979).
In Valentine, the court noted that a jury must be instructed, in accordance with the
Penal Code, that a defendant’s use of deadly force is justified if she reasonably
believed that the deceased was using or attempting to use unlawful deadly force
against her at the time of the shooting, and if she “reasonably believed that the use
of force and the degree of force used were immediately necessary to protect herself
against (the deceased’s) use or attempted use of deadly force . . . .” Id. The court
found it significant that the trial court had properly defined the term, “reasonable
–6– belief,” to mean “a belief that would be held by an ordinary and prudent person in
the same circumstances as the defendant,” and noted that this key definition was
missing from the charge in Jones. The court thus concluded that the Valentine trial
court’s “reasonable belief” definition effectively instructed the jury on the concept
that “a reasonable apprehension of danger, whether it be actual or apparent, is all
that is required before one is entitled to exercise the right of self-defense against his
adversary.” Id. at 401. In so concluding, the court further observed that the charge
was given in accordance with Sections 1.07, 9.31, and 9.32 of the Penal Code, “all
of which adequately presented the appellant’s defensive theory and protected her
rights.” Id. at 401.
As our sister court later summarized:
[W]hen a defendant claims self-defense, his rights are preserved (and the concept of “apparent danger” is properly presented) when a jury charge: (1) states that a defendant’s conduct is justified if he reasonably believed that the deceased was using or attempting to use unlawful deadly force against the defendant, and (2) correctly defines “reasonable belief.”
Bundy v. State, 280 S.W.3d 425, 430 (Tex. App.—Fort Worth 2009, pet. ref’d)
(citing Valentine, 587 S.W.2d at 400–01).
Appellant acknowledges the Valentine holding but insists that some courts
still follow the holding in Jones. He further argues that he was entitled to the
requested instruction based on the “facts and circumstances of this case.” Neither
argument is persuasive.
–7– Appellant cites Courtney v. State, 908 S.W.2d 48, 52–53 (Tex. App.—
Houston [1st Dist.] 1995, pet. ref’d) and Torres v. State, 7 S.W.3d 712, 715 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d) to support his contention that courts
continue to follow Jones even after the Valentine clarification. Appellant’s reliance
on these cases is misplaced.
Both Courtney and Torres held that it was error to refuse the requested
apparent danger instruction. Significantly, however, in both cases the charge only
allowed the jury’s consideration of self-defense if it found that the defendant was
actually under attack or attempted attack. Courtney, 908 S.W.3d at 51; Torres, 7
S.W.3d at 715. The charge in the present case was not similarly limited. Moreover,
as this court and others have recognized, Torres relied solely on Jones and did not
cite to or address Valentine at all. See Cleary v. State, 05-11-00040-CR, 2012 WL
987762, at *2 (Tex. App.—Dallas Mar. 26, 2012, pet. ref’d) (mem. op., not
designated for publication); Clark v. State, No. 04-02-00551, 2004 WL 1835732, at
*6 (Tex. App.—San Antonio Aug. 18, 2004, pet. ref’d) (mem. op., not designated
for publication).
Here, the trial court instructed 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 against the other’s use or attempted use of unlawful
force.” This satisfies the first Valentine requirement. See Valentine, 587 S.W.2d at
400–01; Bundy, 280 S.W.3d at 430. The second Valentine requirement was also
–8– satisfied because the court properly defined “reasonable belief” as “a belief that
would be held by an ordinary and prudent person in the same or similar
circumstances as the defendant.” See Valentine, 587 S.W.2d at 401; Bundy, 280
S.W.3d at 430.
The second part of appellant’s argument, urging that the “facts and
circumstances of this case” support the requested instruction appears to invite our
departure from established precedent. But as an intermediate court of appeals, we
are bound to follow the Court of Criminal Appeals’ holdings and are not at liberty
to carve out exceptions. See generally, Chatham v. State, 646 S.W.2d 512, 513 (Tex.
App.—Dallas 1982, no pet.); Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.—Fort
Worth 2003, pet. ref’d). This is particularly true here where, in addition to the court’s
holding in Valentine, the law generally provides that “a jury charge which tracks the
language of a particular statute is a proper charge on the statutory issue.” Riddle v.
State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994).
In the present case, the trial court’s self-defense instruction encompassed the
concept that “a reasonable apprehension of danger, whether it be actual or apparent,
is all that is required before one is entitled to exercise the right of self-defense against
his adversary.” See Valentine, 587 S.W.2d at 401. Accordingly, we conclude the trial
court did not err by refusing the requested instruction on “apparent danger.”
Appellant’s first issue is resolved against him.
–9– B. Applying Self-Defense to Murder
Appellant was indicted on two separate theories of murder. The first was that
he intentionally or knowingly caused Nichols’s death by shooting him with a
firearm. The second theory was that appellant intended to cause serious bodily injury
and committed an act clearly dangerous to human life by shooting Nichols, and thus
caused his death. The charge allowed the jury to convict under either theory.
Appellant’s second issue argues the charge was erroneous because the self-
defense instruction omitted the second theory. According to appellant, he was
egregiously harmed because it may have led the jury to believe self-defense applied
only to the first theory of the offense.
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether
error occurred; if not, our analysis ends. Id. If error occurred, whether it was
preserved then determines the degree of harm required for reversal. Id.
In this instance, the State agrees that the failure to include both theories of
murder in the self-defense application paragraph was “likely” error. The application
paragraph stated:
Now, therefore, bearing in mind the foregoing definitions and instructions, if you believe from the evidence beyond a reasonable doubt that on or about November 11, 2018, in Dallas County, Texas, the defendant did then and there intentionally or knowingly, cause the death of Jimar Nichols by shooting him with a firearm, a deadly
–10– weapon, but you further find from the evidence, or have a reasonable doubt thereof, that the defendant reasonably believed that deadly force when and to the degree used, if it was, was immediately necessary to protect himself against the use or attempted use of unlawful deadly force by Jimar Nichols, you will acquit the defendant and say by your verdict “not guilty.” If you so believe, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense and say by your verdict “not guilty.”
When self-defense is law applicable to the case, the trial court must inform
the jury under what circumstances it should acquit a defendant of an offense based
on self-defense. Mendez v. State, 545 S.W.3d 548, 556 (Tex. Crim. App. 2018).
There were two theories of murder at issue in this case. Therefore, the charge was
erroneous because it did not apply self-defense to both theories.
Having found error, we next consider whether appellant was egregiously
harmed by the error. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005).
When, as here, the error was not objected to, we reverse only if the error caused
egregious harm such that the defendant was denied a fair and impartial trial. Id.
“Errors which result in egregious harm are those that affect the very basis of the
case, deprive the defendant of a valuable right, vitally affect the defensive theory, or
make the case for conviction clearly and more significantly persuasive.” Taylor v.
State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011). The egregious harm inquiry is
fact specific and must be performed on a case-by-case basis. Gelinas v. State, 398
S.W.3d 703, 710 (Tex. Crim. App. 2013). In making an egregious harm
determination, we consider (i) the entire jury charge, (ii) the state of the evidence,
including the contested issues and weight of probative evidence, (iii) the argument –11– of counsel, and (iv) any other relevant information revealed by the trial record as a
whole. See Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015).
(i) The charge as a whole.
The jury charge explained that “deadly force” means “force that is intended
or known by the person using it to cause, or in the manner of it’s use or intended use
is capable of causing death or serious bodily injury.” The charge further 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’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:
(1) if the person would be justified in using force against the other; and
(2) when and to the degree the person reasonably believes the deadly force is immediately necessary:
(A) to protect himself 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.
By explaining deadly force as force used with intent to cause death or serious
bodily injury, the definition encompassed both theories of murder— regardless of
whether it was by intentionally or knowingly causing death or committing an act
clearly dangerous to human life that caused death. Therefore, the definitions and
instructions make clear that self-defense applies to both theories. The remainder of –12– the charge is unremarkable. We conclude that the charge as a whole weighs slightly
against harm.
(ii) The state of the evidence
The state of the evidence does not support a finding of harm. There was no
notable difference between the State’s two theories of murder at trial. The jury could
convict appellant under either theory if it found that appellant (1) shot Nichols with
a firearm, and (2) caused Nichols’s death. See TEX. PENAL CODE ANN. §19.02(b)(1),
(b)(2). These facts were essentially undisputed at trial. Appellant told Detective
Serra that he shot Nichols and the video evidence portrayed the shooting. The
evidence also showed that Nichols died from a gunshot wound.
Neither the parties nor the court ever suggested to the jury that the availability
of self-defense would depend on whether appellant shot Nichols with the intent to
kill him or shot him with the intent to cause serious bodily injury. Instead, during
voir dire, both parties discussed self-defense in the abstract, never suggesting that its
application depended on the theory of the offense. The State’s examination of
witnesses did not seek to make a distinction between theories as applied to self-
defense. And defense counsel’s cross-examination focused on developing the self-
defense theory generally, rather than the alternative theories under which the murder
was charged. Therefore, the state of the evidence does not support a finding of harm.
–13– (iii) The arguments of counsel
Likewise, counsel’s arguments made no distinction between the two murder
theories. Appellant agrees, but nonetheless insists that this prong of the analysis
weighs in favor of harm. We find no support for this contention.
The State argued that appellant’s actions were inconsistent with his self-
defense claim, that the video evidence demonstrated that Nichols was not a threat,
and that appellant’s use of force had been preemptive. The defense criticized the
police investigation and the State’s failure to call eyewitnesses. Defense counsel then
argued generally, “If you have a reasonable doubt that it was murder, or if the person
was acting in self-defense, you find them not guilty.” Nothing in these arguments
was likely to confuse the jury on the applicability of self-defense.
(iv) Other factors
Having reviewed the record, we find no other factors pertinent to our
analysis.1 Based on our review, we cannot conclude that the charge error vitally
affected the theory of self-defense by confusing the jury about its applicability to
both theories of murder. Likewise, there is no basis to conclude that appellant was
deprived of a valuable right or that the error made the case for conviction clearly and
1 Appellant points to the State’s discussion of the two theories of murder during voir dire but fails to explain how this is relevant to our analysis. We find nothing in the discussion that suggests self-defense is contingent upon the jury believing one theory of murder or the other. –14– more significantly persuasive. See Taylor, 332 S.W.3d at 490. Appellant’s second
issue is resolved against him.
C. Admission of Evidence
When questioning Detective Serra about the surveillance recording showing
the interaction between appellant and the victim on the Hustead video, the State
asked: “What is the victim’s shoulder doing?” Detective Serra answered: “It’s
turning away as if he’s caught off guard or surprised.” Defense counsel objected
based on speculation and was allowed to take the witness on voir dire.
On voir dire, Detective Serra said that he was interpreting the video based on
his observations of the victim’s body language. He denied that he was “trying to say
what [the victim was] thinking.” Defense counsel renewed his objection, stating,
“He’s trying to say . . . put words into what this person is thinking of what’s going
on. If they play the video through, the jury can see what happens.” The objection
was overruled.
Appellant’s third issue argues the trial court erred in admitting the testimony
because it violated rules 602 and 701. See TEX. R. EVID. 602, 701. Specifically, he
contends that the testimony undercut appellant’s self-defense theory.
We review a trial court’s decision to admit evidence for an abuse of discretion.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). There is no abuse
of discretion if the decision is “within the zone of reasonable disagreement.” State
v. Lerma, 639 S.W.3d 63, 68 (Tex. Crim. App. 2021).
–15– The State admits that the testimony was “likely” inadmissible under rules 602
and 701. For the sake of argument, we can assume without deciding that the trial
court’s ruling was erroneous. The question then becomes whether the erroneous
admission of the testimony caused appellant harm.
The trial court’s erroneous admission of evidence generally constitutes
nonconstitutional error. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002); Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000). We must
disregard a nonconstitutional error if it does not affect a litigant’s substantial rights.
TEX. R. APP. P. 44.2(b). “A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury’s verdict.”
Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). “[S]ubstantial rights
are not affected by the erroneous admission of evidence ‘if the appellate court, after
examining the record as a whole, has fair assurance that the error did not influence
the jury, or had but a slight effect.’” Motilla, 78 S.W.3d at 355 (quoting Solomon v.
State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). In assessing the likelihood that
the jury’s decision was adversely affected by the error, we must “consider everything
in the record, including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other evidence in
the case.” Id.
–16– Viewing the entirety of the evidence, appellant’s self-defense story was
undermined by evidence other than the complained-of testimony throughout trial.
Appellant’s conduct after the shooting was inconsistent with his self-defense claim.
Appellant told Detective Serra that he went home after the shooting and never called
the police. Evidence of flight is circumstantial evidence of guilt. See Miller v. State,
177 S.W.3d 177, 184 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Appellant
disposed of his gun and drove away, which also indicates consciousness of guilt. See
Anderson v. State, No. 01-09-00108-CR, 2010 WL 1839945, at *3 (Tex. App.—
Austin May 6, 2010, no pet.) (mem. op., not designated for publication).
In addition, appellant’s version of events differed from what the jury saw in
the videos. Appellant claimed he saw Nichols display a gun, but no gun is visible in
the videos. When Detective Serra asked appellant if Nichols pointed the gun at him,
appellant did not answer. Appellant was 100% sure Nichols’s gun was all black, but
the gun recovered from Nichols’s body was black and silver. Moreover, Nichols’s
gun was not discovered until it fell out of his shirt in the ambulance after his death.
One of the paramedics testified that there was no way the gun could have been on
any exterior part of Nichols’s clothing because the paramedics picked him up off the
ground and flipped him over before they put him on the stretcher. There was also
evidence that none of the shell casings recovered from the scene could have been
fired from Nichols’s gun.
–17– Appellant also claimed he could not leave the scene before the shooting
because Hughes’s car blocked his truck from behind. Detective Serra testified,
however, that this was not true. Specifically, he described how the video shows
Hughes pull in behind appellant’s truck, and then adjust his car and drive down the
street before the shooting. While appellant claimed he jumped out of the car and
began shooting, the video evidence shows him walking calmly around the back of
the car to the passenger side where Nichols stood. Inconsistent statements and
implausible explanations to police are “probative of wrongful conduct and are also
circumstances of guilt.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.
2004); see also Hernandez v. State, No. 05-06-01238-CR, 2008 WL 588902, at *5
(Tex. App.—Dallas Mar. 5, 2008, pet. ref’d) (mem. op., not designated for
publication) (credibility of defendant’s self-defense claim undermined by
defendant’s conflicting stories, his behavior after the shooting, and claim that his
memory was impaired).
In light of this evidence, it is highly unlikely that the jury’s decision was
adversely affected by Detective Serra’s interpretation of appellant’s shoulder
movement. The jury watched the video. Serra did not purport to be an expert or
otherwise in a position to possess information that the jury could not view for itself.
The testimony about Nichols’s shoulder movement, added little, if any weight to
Detective Serra’s testimony as a whole. Moreover, Detective Serra offered other
interpretations of Nichols’s posture and movements without objection. For example,
–18– he testified that appellant came “casually” around the truck to shoot at Nichols, “who
appeared to be in a state of shock.” He also testified that as appellant approached
Nichols, Nichols had his left arm in the air “as if he was trying to protect himself
from the gunshots with his arm.” Under these circumstances, we have a fair
assurance that the evidence did not influence the jury or had but a slight effect. We
resolve appellant’s third issue against him.
CONCLUSION
Having resolved all of appellant’s issues against him, we affirm the trial
court’s judgment.
/Dennise Garcia/ DENNISE GARCIA JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 220220F.U05
–19– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANTHONY QUINN RIDER, On Appeal from the 203rd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-1876651-P. No. 05-20-00220-CR V. Opinion delivered by Justice Garcia. Justices Molberg and Reichek THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 1, 2022
–20–