Ja'Montre Joshua Mouton v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 8, 2023
• Docket: 10-21-00291-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00291-CR

JAMONTRE JOSHUA MOUTON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 278th District Court Walker County, Texas Trial Court No. 29599

MEMORANDUM OPINION

In three issues, appellant, Jamontre Joshua Mouton, challenges his murder

conviction. See TEX. PENAL CODE ANN. § 19.02. Specifically, Mouton contends that: (1)

the trial court erred by admitting gruesome images over his objection; (2) the trial court

erred by refusing to give a requested instruction on the defense of necessity; and (3) the

evidence is insufficient to support his conviction. We affirm. Background

In the instant case, Mouton was charged with killing Jalen McDuffie based on a

dispute resulting from a drug transaction. See id. Mouton, who was fifteen years old at

the time of the killing, was tried as an adult. At the conclusion of the evidence, the jury

found Mouton guilty of the charged offense and assessed punishment at seventy-five

years in prison. The trial court certified Mouton’s right to appeal. Mouton filed a motion

for new trial in the trial court, which the trial court denied. This appeal followed.

Admission of Evidence

In his first issue, Mouton asserts that the trial court abused its discretion by

admitting the bodycam video of Corporal Marshall Douglass of the Walker County

Sheriff’s Department, which was gruesome and not probative of a disputed issue.

STANDARD OF REVIEW & APPLICABLE LAW

Generally, photographs and videos recordings of crime scenes are admissible.

Huffman v. State, 746 S.W.2d 212, 221 (Tex. Crim. App. 1988) (en banc). The trial court has

sound discretion to admit photographic evidence over an objection. Williams v. State, 301

S.W.3d 675, 690 (Tex. Crim. App. 2009). Photographs must have probative value, and the

probative value must not be substantially outweighed by its inflammatory nature. TEX.

R. EVID. 403; Williams, 301 S.W.3d at 690. Photographic evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.” Penry

Mouton v. State Page 2 v. State, 903 S.W.2d 715, 751 (Tex. Crim. App. 1995); see TEX. R. EVID. 401. Videos may be

more helpful to a jury than photographs because recordings give the jury a more

panoramic representation of physical and forensic evidence. Gordon v. State, 784 S.W.2d

410, 412 (Tex. Crim. App. 1990).

The admission of photographs and videos are reviewed for an abuse of discretion.

Penry, 903 S.W.2d at 751. In evaluating whether a trial court abused its discretion, our

review is limited to determining whether the probative value of the photograph or video

is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

misleading the jury, or by consideration of undue delay or needless presentation of

cumulative evidence. Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009).

Relevant factors in determining whether the probative value is outweighed by the danger

of unfair prejudice include the number of exhibits, their gruesomeness, their size and

detail, whether they are close-up, the availability of other means of proof, and the unique

circumstances of each case. See Fields v. State, 515 S.W.3d 47, 56 (Tex. App.—San Antonio

2016, no pet.) (citing Young, 283 S.W.3d at 874).

DISCUSSION

Although Mouton objected that the video was probative only of the fact that

McDuffie had been shot, the video provided a wide, panoramic view of the crime scene.

See Gordon, 784 S.W.2d at 412. Furthermore, the video depicted McDuffie’s injuries, the

realities of the crime committed, and the aftermath of the crime. The Court of Criminal

Mouton v. State Page 3 Appeals has held that visual images of the injuries a defendant inflicted on his victim are

relevant evidence for the jury’s consideration. Salazar v. State, 38 S.W.3d 141, 152-53 (Tex.

Crim. App. 2001); see Paredes v. State, 129 S.W.3d 530, 540 (Tex. Crim. App. 2004) (holding

that the trial court did not abuse its discretion by overruling appellant’s objection to

gruesome photos of the victim where the photos, albeit graphic, depicted the realities of

the crime committed and its aftermath).

The video was also probative as to whether every shell casing was recovered,

which was challenged by Mouton, and as to the chaos of the scene, especially when

emergency personnel arrived. In addition, the video was not cumulative of other

evidence; the video was not enhanced, repeated, edited, or modified to draw particular

attention to any of the graphic imagery; and there is no indication that the jury was

unduly influenced or inflamed by the admission of the video.

While we recognize that the video contains graphic imagery, merely because a

photograph or video is gruesome does not render it inadmissible. Chamberlain v. State,

998 S.W.2d 230, 237 (Tex. Crim. App. 1999). Photographs that are gruesome because they

depict a disagreeable reality simply depict the reality of the crime committed. Id. A trial

court does not err by admitting photographs that are gruesome; it is a matter of balancing

the probative value against unfair prejudice. Id.; see Paredes, 129 S.W.3d at 540. And after

applying the appropriate factors, we cannot conclude that the probative value of the

video is outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; see also

Mouton v. State Page 4 Young, 283 S.W.3d at 874; Fields, 515 S.W.3d at 56. Accordingly, we conclude that the trial

court did not abuse its discretion by admitting the video into evidence over Mouton’s

objection. See Penry, 903 S.W.2d at 751. We overrule Mouton’s first issue.

The Defense of Necessity

In his second issue, Mouton complains that the trial court erred by declining to

instruct the jury on the defense of necessity when the issue was raised by the evidence

and was requested by trial counsel.

STANDARD OF REVIEW

We apply a two-step analysis in reviewing a claim of charge error. Kirsch v. State,

357 S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we determine whether error exists in

the charge. Id. If the charge is erroneous, we review the record to determine whether the

error was harmful. Id.

A trial court must submit a jury charge that sets forth the law applicable to the

case. TEX. CODE CRIM. PROC. ANN. art. 36.14; see Walters v. State, 247 S.W.3d 204, 208 (Tex.

Crim. App. 2007). The trial court must instruct the jury on statutory defenses, affirmative

defenses, and justifications whenever they are raised by the evidence in the case. Walters,

247 S.W.3d at 208-09. “A defendant is entitled to an instruction on every defensive issue

raised by the evidence, regardless of whether the evidence is strong, feeble,

unimpeached, or contradicted, and even when the trial court thinks the testimony is not

worthy of belief.” Id. at 209. When reviewing a trial court’s ruling denying a requested

Mouton v. State Page 5 defensive instruction, we view the evidence in the light most favorable to the defendant’s

requested instruction. See Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). We

review the trial court’s decision not to include a defensive issue in the jury charge for an

abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).

Necessity is a justification defense that excuses a defendant’s otherwise unlawful

conduct if (1) the defendant reasonably believed the conduct was immediately necessary

to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly

outweighed, according to ordinary standards of reasonableness, the harm sought to be

prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude

the justification claimed for the conduct does not otherwise plainly appear. TEX. PENAL

CODE ANN. §§ 9.02, 9.22; see Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999).

Necessity is a confession-and-avoidance defense, meaning that the defendant is not

entitled to a necessity instruction unless he admits to the conduct—both the act and the

culpable mental state—of the charged offense and then offers necessity as a justification.

See Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010). Stated differently, the

defendant must “admit” or confess to violating the statute under which he is being tried,

then offer necessity as a justification for his otherwise criminal conduct. See Young, 991

S.W.2d at 838.

Mouton v. State Page 6 DISCUSSION

Zakee Fedayeen testified that McDuffie wanted to buy two ounces of marihuana

from Mouton. Mouton was a classmate of Fedayeen’s, so Fedayeen set up the transaction.

McDuffie and Fedayeen met Mouton in the parking lot of The Pines Apartments.

McDuffie and Fedayeen were in McDuffie’s car, and Mouton approached the car to

complete the transaction. McDuffie purchased the marihuana, and Mouton inquired

about purchasing a pistol that McDuffie had in the center console of the car. However,

McDuffie and Mouton could not agree on a purchase price for the pistol. McDuffie and

Fedayeen left the parking lot and went to the house of a friend of McDuffie’s. At the

friend’s house, McDuffie “opened up the bag and started breaking the weed down into

smaller bags.” McDuffie realized that he had been shorted on the marihuana and became

upset. Fedayeen testified that he and McDuffie’s brother calmed down McDuffie. But

McDuffie wanted to meet with Mouton to either get his money or get the amount of

marihuana that he had been shorted.

Fedayeen and McDuffie eventually spoke with Mouton, and Mouton agreed to

“mak[e] it right.” They discussed “meeting up” at The Summit Apartments. Before the

meeting at The Summit Apartments, Fedayeen and McDuffie drove to Mouton’s house

to find him. Mouton was not at his house. Fedayeen and McDuffie then proceeded to

meeting spot at The Summit Apartments. Because they were unsure about what time

they were meeting Mouton, Fedayeen and McDuffie sat in McDuffie’s car for a while

Mouton v. State Page 7 until they decided to hang out at the apartment pool while they waited for Mouton.

Because of the length of wait, McDuffie became “[i]mpatient, a little worrisome.” He

instructed Fedayeen to go start the car “[i]n case somebody gets shot or anything.” Ten

minutes later, McDuffie relaxed and told Fedayeen to leave the car and come to the pool

to socialize. Fedayeen and other witnesses recalled that McDuffie was happy and calm

at this point in time. While Fedayeen and McDuffie were socializing with others at the

apartment pool, Mouton arrived and “[c]ame over to the side and waived at [Fedayeen].”

Fedayeen and McDuffie walked to the side of the building to meet Mouton. Fedayeen

and McDuffie were walking side by side while Mouton was walking about five feet in

front of them. According to Fedayeen, once he and McDuffie turned a corner, Mouton

turned around and pulled out a gun that Fedayeen did not know Mouton had. Fedayeen

acknowledged that McDuffie had a gun tucked inside his pants “above his crotch” with

his shirt covering it. Fedayeen further recounted that Mouton pointed his gun at

McDuffie and ordered McDuffie to give him the gun that McDuffie was concealing.

When McDuffie reached down to grab his gun, Mouton fired shots, which struck

McDuffie and lead to his demise.

Despite the foregoing evidence, Mouton maintained in his interview with police

that McDuffie shot at him and that he ran away from McDuffie, but then returned to the

scene and fired shots. When asked for further clarification, Mouton stated that he came

Mouton v. State Page 8 back as Fedayeen and McDuffie were walking away, which amounted to a new

interaction between Mouton and McDuffie.

For Mouton to have been entitled to a necessity instruction, there must be evidence

that his conduct—shooting McDuffie—was “immediately necessary to avoid imminent

harm.” TEX. PENAL CODE ANN. § 9.22(1); see Harper v. State, 508 S.W.3d 461, 467 (Tex.

App.—Fort Worth 2015, pet. ref’d) (noting that to raise a necessity defense, there must be

“evidence of a reasonable belief of both immediate necessity and imminent harm”). The

term necessary is not defined in the statute; thus, we must give the word meaning it is

afforded by common usage. See Lopez v. State, 600 S.W.3d 43, 46 (Tex. Crim. App. 2020)

(noting that courts may look to standard dictionaries to ascertain common usage of a term

undefined by a statute that lacks technical meaning). Necessary ordinarily means

“required to be done,” which is consistent with the concept of necessity, which ordinarily

involves “the fact of being required or indispensable.” NEW OXFORD AMERICAN

DICTIONARY 1171 (3d ed. 2010).

Here, the testimony revealed that Mouton chose the location of the shooting and

brought a firearm, which he pointed at McDuffie. Mouton then ordered McDuffie to

surrender his firearm and then shot McDuffie while he was attempting to comply with

the order. There is no evidence that McDuffie threatened Mouton or that McDuffie fired

or attempted to fire his gun at Mouton. Thus, it cannot be said that Mouton act of

Mouton v. State Page 9 shooting McDuffie was “immediately necessary to avoid imminent harm.” TEX. PENAL

CODE ANN. § 9.22(1); see Harper, 508 S.W.3d at 467.

And as noted earlier, Mouton’s own description of the events belies his contention

that a necessity instruction was warranted. Even if McDuffie shot first and Mouton fled,

the fact that Mouton returned later and shot McDuffie indicates the commencement of a

new interaction that did not amount to a split-second decision without time to consider

the law by Mouton to shoot McDuffie to avoid imminent harm. See Harper, 508 S.W.3d

at 467 (“[A] defendant’s sincere belief that his conduct is immediately necessary to avoid

imminent harm is unreasonable as a matter of law if the undisputed facts demonstrate a

complete absence of ‘immediate necessity’ or ‘imminent harm’ as legally defined.”); see

also Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref’d) (“[I]mminent

harm contemplates a reaction to a circumstance that must be the result of a ‘split-second

decision [made] without time to consider the law’ and requires ‘an immediate, non-

deliberative action made without hesitation or thought of the legal consequence.”

(quoting Smith v. State, 874 S.W.2d 269, 273 (Tex. App.—Houston [14th Dist.] 1994, pet.

ref’d))).

Therefore, viewing the evidence in the appropriate light, we cannot say that the

trial court abused its discretion by refusing to instruct the jury on necessity. See TEX.

PENAL CODE ANN. § 9.22(1); see also Bufkin, 207 S.W.3d at 782; Wesbrook, 29 S.W.3d at 122.

We overrule Mouton’s second issue.

Mouton v. State Page 10 Sufficiency of the Evidence

In his third issue, Mouton argues that the evidence is insufficient to support his

murder conviction. We disagree.

The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer “to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a “divide and conquer” strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey

Mouton v. State Page 11 v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law as authorized by the indictment” includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

Here, Mouton was charged with murder under section 19.02(b)(2) of the Texas

Penal Code. See TEX. PENAL CODE ANN. § 19.02(b)(2). “A person commits an offense if

he . . . intends to cause serious bodily injury and commits an act clearly dangerous to

human life that causes the death of an individual.” Id. On appeal, Mouton contends that

a rational factfinder could not find beyond a reasonable doubt that he was the aggressor

and did not act in self-defense when he shot the person—McDuffie—who was pursuing

him over a drug-sale dispute.

As stated earlier, the evidence showed that Mouton arranged the meeting with

Fedayeen and McDuffie at The Summit Apartments. As described by Fedayeen, Mouton

arrived at this meeting with a gun, brought Fedayeen and McDuffie away from

Mouton v. State Page 12 witnesses, pointed the gun at McDuffie, and fired the gun before McDuffie could respond

to Mouton’s demand to turn over his gun. As a result of being shot multiple times by

Mouton, McDuffie died.

In his interview with police, Mouton recounted that McDuffie shot at him first and

that he ran away from McDuffie, but then returned to the scene and fired shots. Texas

Ranger Chris Cash testified that Mouton’s story about the incident was not plausible

because, based on the elevation and placement of vehicles and other obstructions at the

scene, the location from which Mouton claimed to have fired the shots would be

impossible. Ranger Cash further testified that the placement of shell casings found at the

scene was consistent with Fedayeen’s testimony. Furthermore, eyewitness Jacob Van

Holten described Mouton as “walking back and forth” and “getting himself hyped up,

pumped up” shortly before the shooting. And finally, Mouton admitted that he fled the

scene and discarded the murder weapon in the Trinity River. See Valdez v. State, 623

S.W.2d 317, 321 (Tex. Crim. App. 1981) (“Further, while flight alone will not support a

guilty verdict, evidence of flight from the scene of a crime is a circumstance from which

an inference of guilt may be drawn.” (internal citation omitted)).

The issue of self-defense is a fact issue to be determined by the factfinder, who is

free to accept or reject the defensive evidence. Braughton v. State, 569 S.W.3d 592, 609

(Tex. Crim. App. 2018). As the sole judge of the weight and credibility of the evidence,

the jury is free to believe or disbelieve the testimony of all witnesses and to accept or

Mouton v. State Page 13 reject any or all of the defensive evidence. See id. at 608-09; see also Chambers v. State, 805

S.W.2d 459, 461 (Tex. Crim. App. 1991) (“As factfinder, the jury is entitled to judge the

credibility of witnesses, and can choose to believe all, some, or none of the testimony

presented by the parties.”). “[A] jury verdict of guilty is an implicit finding rejecting the

defendant’s self-defense theory.’” Braughton, 569 S.W.3d at 609 (quoting Saxton v. State,

804 S.W.2d 910, 914 (Tex. Crim. App. 1991)). We presume that the jury resolved

conflicting inferences in favor of the verdict, and we defer to its determination of the

evidentiary weight and witness credibility. Id. at 608; see Criff v. State, 438 S.W.3d 134,

136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

Accordingly, after reviewing all the evidence in the light most favorable to the

jury’s verdict, giving due deference to the jury’s weight and credibility determinations,

we conclude that, on the evidence presented, a rational trier of fact could have rejected

Mouton’s self-defense theory and assertion that he was not the aggressor and found the

essential elements of the offense beyond a reasonable doubt. See TEX. PENAL CODE ANN.

§ 19.02(b)(2); see also Braughton, 569 S.W.3d at 608-09; Zuniga, 551 S.W.3d at 732-33. As

such, we overrule Mouton’s third issue.

Conclusion

Having overruled all of Mouton’s issues on appeal, we affirm the judgment of the

trial court.

Mouton v. State Page 14 STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith (Chief Justice Gray concurring with a note)* Affirmed Opinion delivered and filed February 8, 2023 Do not publish [CRPM]

*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.)

Mouton v. State Page 15