TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00506-CR
Jason Ricardo Baez, Appellant
v.
The State of Texas, Appellee
FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 78574, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Jason Ricardo Baez guilty of first-degree murder and
assessed his punishment at fifty years’ confinement. See Tex. Penal Code § 19.02(b)(1), (c). In
his sole issue, appellant contends that the trial court erred when it did not include within its jury
instructions on the law of self-defense that an actor’s belief that deadly force is immediately
necessary is presumed to be reasonable. See id. § 9.32(b) (listing conditions when presumption
applies). In its briefing, the State asks this Court to modify the judgment to add an affirmative
deadly weapon finding. For the following reasons, we modify the judgment of conviction to add
a deadly weapon finding and, as modified, affirm the judgment of conviction.
BACKGROUND
In the middle of the day on February 28, 2018, appellant shot Lamar Roberson
multiple times with a firearm. The shooting occurred in the street adjacent to the triplex where appellant and his fiancée lived. Police and EMS responded to the scene and attempted to save
Roberson’s life, but he died from the gunshot wounds.
Shortly after the shooting occurred, appellant left the scene in a vehicle.
Following a high-speed chase, the police were able to stop appellant’s vehicle and arrest him. A
few weeks later, appellant was indicted for causing the death of Roberson “by shooting [him]
with a firearm, a deadly weapon.” 1 The indictment included an enhancement paragraph alleging
that appellant had been convicted in May 2008 of the felony offense of aggravated robbery with
a deadly weapon. 2
The witnesses at trial included Roberson’s mother, eyewitnesses to the shooting,
responding and investigating officers, the medical examiner, and appellant who testified in his
own defense. The evidence established that appellant caused the death of Roberson by shooting
him multiple times with a firearm. The dispositive question was whether appellant was acting in
self-defense. Roberson’s mother testified that Roberson was gay; that he and appellant seemed
to be “into one another” and “to get along very well”; that she had seen them kiss; and that
appellant called her shortly before the shooting and told her that Roberson “was trying to cause
problems between [appellant] and his fiancée,” that appellant “didn’t like it,” and that he “was
going to smoke [Roberson],” meaning he “was going to shoot [Roberson].”
Among the eyewitnesses who testified at trial was a neighbor who lived next door
to appellant and his fiancée. The neighbor testified that he heard “loud banging” on appellant’s
1 In their investigation, the police recovered a gun from the route of the high-speed chase, but it was not the murder weapon. At trial, appellant admitted that he had thrown the gun from his vehicle during the chase, but he testified that it belonged to his fiancée. 2 During the punishment phase of trial, appellant testified that he served the full ten-year sentence. 2 apartment door and “angry yelling” and then saw a person, who was later identified as Roberson,
walking away and screaming, “I’m going to get my gun and I’m going to come back and get
you.” The neighbor saw Roberson “continue into the street towards a car [he] didn’t recognize
that was sitting in the street.” The neighbor then saw appellant “come around from the corner of
the house from the back,” “pull out a gun,” “fire off a shot” at Roberson, and then walk to “the
general direction of where [Roberson] had fallen and continue firing off rounds.”
Another eyewitness who was sitting in a nearby car testified that she saw
appellant shoot Roberson in the back and that Roberson “fell right in front of [her] car.”
Roberson “crawled a little ways,” and appellant “shot him again.” Roberson then “crawled
around to the side” of the car, and appellant “shot him again.” Another eyewitness testified that
he “saw two men in the middle of the street”; that “[o]ne man was on his back and he had his
hands in a defensive position, like, to shield his face”; and that “there was another man standing
over him with a pistol in his hand” who shot the man on his back “four to five times, standing
over him.” The eyewitnesses testified consistently that Roberson appeared to be unarmed with
nothing in his hands, and the police did not find a weapon on Roberson. The State’s exhibits
included photographs of the scene and video from a responding officer’s dash cam showing
Roberson lying in the middle of the street after he had been shot and video clips from police
interviews of appellant following the shooting.
Testifying in his own defense, appellant admitted to being “a convicted felon” and
to shooting Roberson but testified that he did so in self-defense. Appellant testified that he had
known Roberson for about two months, 3 that Roberson had threatened him by phone, that
3 In the video clips from the police interview, appellant confirmed that he met Roberson right after he was released from the penitentiary. 3 Roberson had “brandished” a pistol when he was “banging” on appellant’s door just prior to the
shooting but that it “[didn’t] work,” that he saw Roberson moving toward a car with two people
where he thought Roberson was going to get another gun, and that he shot Roberson in
self-defense because “I’m thinking he’s fixing to shoot with that gun that he had on him.” He
also testified that he shot Roberson because he “[saw Roberson] go grab the pistol again and go
to turn like this (indicating) to shoot me with it.”
Appellant also called an individual who was confined in county jail with him.
The individual testified that he knew Roberson and appellant, that he had seen Roberson with a
gun, that Roberson “knew his way around a firearm,” that Roberson had threatened appellant
because appellant owed him money, that appellant and his family “were in danger of getting
killed,” that Roberson had a gun on him when the shooting occurred, that the individual had
“removed the firing pin” from Roberson’s gun so that it “was disabled” on the morning before
the shooting, that Roberson’s “associates” recovered the gun after Roberson was shot, that they
then drove off, and that the individual was paid to take the gun apart and dispose of it, which he
did. According to the individual, appellant was “the target of a murder setup.” The defense’s
exhibits included photographs of Roberson holding a pistol in each hand.
In its charge to the jury, the trial court instructed the jury on the law of
self-defense:
It is a defense to prosecution that the conduct in question is justified by the law of self-defense. Under that law, 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. “Actor” means a person whose criminal responsibility is in issue in a criminal action.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00506-CR
Jason Ricardo Baez, Appellant
v.
The State of Texas, Appellee
FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 78574, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Jason Ricardo Baez guilty of first-degree murder and
assessed his punishment at fifty years’ confinement. See Tex. Penal Code § 19.02(b)(1), (c). In
his sole issue, appellant contends that the trial court erred when it did not include within its jury
instructions on the law of self-defense that an actor’s belief that deadly force is immediately
necessary is presumed to be reasonable. See id. § 9.32(b) (listing conditions when presumption
applies). In its briefing, the State asks this Court to modify the judgment to add an affirmative
deadly weapon finding. For the following reasons, we modify the judgment of conviction to add
a deadly weapon finding and, as modified, affirm the judgment of conviction.
BACKGROUND
In the middle of the day on February 28, 2018, appellant shot Lamar Roberson
multiple times with a firearm. The shooting occurred in the street adjacent to the triplex where appellant and his fiancée lived. Police and EMS responded to the scene and attempted to save
Roberson’s life, but he died from the gunshot wounds.
Shortly after the shooting occurred, appellant left the scene in a vehicle.
Following a high-speed chase, the police were able to stop appellant’s vehicle and arrest him. A
few weeks later, appellant was indicted for causing the death of Roberson “by shooting [him]
with a firearm, a deadly weapon.” 1 The indictment included an enhancement paragraph alleging
that appellant had been convicted in May 2008 of the felony offense of aggravated robbery with
a deadly weapon. 2
The witnesses at trial included Roberson’s mother, eyewitnesses to the shooting,
responding and investigating officers, the medical examiner, and appellant who testified in his
own defense. The evidence established that appellant caused the death of Roberson by shooting
him multiple times with a firearm. The dispositive question was whether appellant was acting in
self-defense. Roberson’s mother testified that Roberson was gay; that he and appellant seemed
to be “into one another” and “to get along very well”; that she had seen them kiss; and that
appellant called her shortly before the shooting and told her that Roberson “was trying to cause
problems between [appellant] and his fiancée,” that appellant “didn’t like it,” and that he “was
going to smoke [Roberson],” meaning he “was going to shoot [Roberson].”
Among the eyewitnesses who testified at trial was a neighbor who lived next door
to appellant and his fiancée. The neighbor testified that he heard “loud banging” on appellant’s
1 In their investigation, the police recovered a gun from the route of the high-speed chase, but it was not the murder weapon. At trial, appellant admitted that he had thrown the gun from his vehicle during the chase, but he testified that it belonged to his fiancée. 2 During the punishment phase of trial, appellant testified that he served the full ten-year sentence. 2 apartment door and “angry yelling” and then saw a person, who was later identified as Roberson,
walking away and screaming, “I’m going to get my gun and I’m going to come back and get
you.” The neighbor saw Roberson “continue into the street towards a car [he] didn’t recognize
that was sitting in the street.” The neighbor then saw appellant “come around from the corner of
the house from the back,” “pull out a gun,” “fire off a shot” at Roberson, and then walk to “the
general direction of where [Roberson] had fallen and continue firing off rounds.”
Another eyewitness who was sitting in a nearby car testified that she saw
appellant shoot Roberson in the back and that Roberson “fell right in front of [her] car.”
Roberson “crawled a little ways,” and appellant “shot him again.” Roberson then “crawled
around to the side” of the car, and appellant “shot him again.” Another eyewitness testified that
he “saw two men in the middle of the street”; that “[o]ne man was on his back and he had his
hands in a defensive position, like, to shield his face”; and that “there was another man standing
over him with a pistol in his hand” who shot the man on his back “four to five times, standing
over him.” The eyewitnesses testified consistently that Roberson appeared to be unarmed with
nothing in his hands, and the police did not find a weapon on Roberson. The State’s exhibits
included photographs of the scene and video from a responding officer’s dash cam showing
Roberson lying in the middle of the street after he had been shot and video clips from police
interviews of appellant following the shooting.
Testifying in his own defense, appellant admitted to being “a convicted felon” and
to shooting Roberson but testified that he did so in self-defense. Appellant testified that he had
known Roberson for about two months, 3 that Roberson had threatened him by phone, that
3 In the video clips from the police interview, appellant confirmed that he met Roberson right after he was released from the penitentiary. 3 Roberson had “brandished” a pistol when he was “banging” on appellant’s door just prior to the
shooting but that it “[didn’t] work,” that he saw Roberson moving toward a car with two people
where he thought Roberson was going to get another gun, and that he shot Roberson in
self-defense because “I’m thinking he’s fixing to shoot with that gun that he had on him.” He
also testified that he shot Roberson because he “[saw Roberson] go grab the pistol again and go
to turn like this (indicating) to shoot me with it.”
Appellant also called an individual who was confined in county jail with him.
The individual testified that he knew Roberson and appellant, that he had seen Roberson with a
gun, that Roberson “knew his way around a firearm,” that Roberson had threatened appellant
because appellant owed him money, that appellant and his family “were in danger of getting
killed,” that Roberson had a gun on him when the shooting occurred, that the individual had
“removed the firing pin” from Roberson’s gun so that it “was disabled” on the morning before
the shooting, that Roberson’s “associates” recovered the gun after Roberson was shot, that they
then drove off, and that the individual was paid to take the gun apart and dispose of it, which he
did. According to the individual, appellant was “the target of a murder setup.” The defense’s
exhibits included photographs of Roberson holding a pistol in each hand.
In its charge to the jury, the trial court instructed the jury on the law of
self-defense:
It is a defense to prosecution that the conduct in question is justified by the law of self-defense. Under that law, 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. “Actor” means a person whose criminal responsibility is in issue in a criminal action.
4 A person is justified in using deadly force against another if the actor is justified in using force, and when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force, or to prevent the other’s imminent commission of murder . . . .
“Reasonable belief” means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.[ 4]
See Tex. Penal Code § 9.32 (stating circumstances when person is justified in using deadly force
in defense of person). Neither party objected to the charge, and the jury found appellant guilty of
murder “as charged in the indictment.”
During the trial’s punishment phase, appellant stipulated to prior judgments of
conviction and pleaded true to the enhancement paragraph. The judgments of conviction,
including the May 2008 judgment of conviction for aggravated robbery with a deadly weapon,
were admitted as exhibits. The jury found that appellant caused the death of Roberson under the
immediate influence of sudden passion arising from adequate cause, see id. § 19.02(d)
(authorizing defendant to raise “the issue as to whether he caused the death under the immediate
influence of sudden passion arising from an adequate cause” and providing that if defendant
proves issue, offense is second-degree felony), and sentenced him to fifty years’ confinement,
see id. § 12.42 (addressing punishment range for repeat and habitual felony offenders). The trial
court thereafter signed its judgment of conviction. This appeal followed.
4 In its instruction to the jury on the law of self-defense, the trial court also included definitions of “deadly force,” “bodily injury,” and “serious bodily injury” and instructed the jury that “[t]he use of force or deadly force against another is not justified in response to verbal provocation alone.” 5 ANALYSIS
Jury Charge
In his sole issue, appellant contends that the trial court was required sua sponte to
give an instruction regarding the presumption of reasonableness under Section 9.32 of the Texas
Penal Code as the law applicable to the case and that the court’s failure to do so caused egregious
harm such that he was denied a fair and impartial trial. See id. § 9.32(a) (addressing when
deadly force against another is justified in defense of person), (b) (addressing when actor’s belief
that deadly force is immediately necessary is presumed to be reasonable).
We review alleged jury charge error in two steps: first, we determine whether
error exists; if so, we then evaluate whether sufficient harm resulted from the error to require
reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State,
175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The degree of harm required for reversal
depends on whether the jury charge error was preserved in the trial court. Marshall v. State,
479 S.W.3d 840, 843 (Tex. Crim. App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g) (setting forth procedure for appellate review of claim of jury
charge error). Without a timely objection, which is the case here, reversal is required upon a
showing of egregious harm. Marshall, 479 S.W.3d at 843; Ngo, 175 S.W.3d at 743–44.
The trial court instructed the jury that a person is justified in using deadly force
against another if the actor is justified in using force, and “when and to the degree he reasonably
believes the deadly force is immediately necessary to protect himself against the other’s use or
attempted use of unlawful deadly force, or to prevent the other’s imminent commission of
murder” and defined “reasonable belief” to mean “a belief that would be held by an ordinary and
prudent person in the same circumstances as the defendant.” But the trial court did not include a
6 presumption-of-reasonableness instruction—that the actor’s belief that deadly force
against another is immediately necessary is presumed to be reasonable. See Tex. Penal Code
§ 9.32(a), (b). Appellant contends that the trial court erred because the three conditions for the
presumption of reasonableness to apply were satisfied. See id. § 9.32(b).
Relevant here, among the three conditions for the presumption of reasonableness
to apply, the actor must not have been “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.” See id. § 9.32(b)(3). 5 A presumption that favors a defendant must “be
submitted to the jury ‘if there is sufficient evidence of the facts that give rise to the
presumption.’” Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011) (quoting Tex. Penal
Code § 2.05(b)(1))). When the trial court “is satisfied that the evidence as a whole clearly
5 The other conditions under Section 9.32(b) for the presumption to apply are that 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 an offense described by Subsection (a)(2)(B); [and]
(2) did not provoke the person against whom the force was used.
Tex. Penal Code § 9.32(b)(1)–(2); see id. § 9.32(a)(2)(B) (addressing when person “is justified in using deadly force against another” to prevent other’s imminent commission of specified crimes). 7 precludes a finding beyond a reasonable doubt of the presumed fact,” the trial court is not
required to submit the presumption to the jury. Id. The dispositive question then is whether the
evidence was sufficient to support or, viewed as a whole, clearly precluded a finding beyond a
reasonable doubt that appellant was not otherwise engaged in criminal activity. See id.; see also
Tex. Penal Code § 9.32(b)(3).
In this case, the evidence at trial conclusively established that appellant was
“otherwise engaged in criminal activity” when he used deadly force by shooting Roberson
because the evidence established that he was committing the offense of unlawful possession of a
firearm by a felon. See Tex. Penal Code § 9.32(b)(3); see also id. § 46.04(a). A person who is a
convicted felon commits the offense of unlawful possession of a firearm: (i) if he “possesses a
firearm” after conviction and before the fifth anniversary of his release from confinement
following the conviction or (ii) if after the fifth anniversary of the person’s release from
confinement following conviction of a felony, “he possesses a firearm” “at any location other
than the premises at which the person lives.” See id. § 46.04(a); see also id. § 46.04(e) (stating
that offense under Subsection (a) is third-degree felony).
Appellant admitted in his testimony that he was a convicted felon, and the
evidence showed that he was convicted in May 2008 of the felony offense of aggravated robbery
with a deadly weapon and sentenced to ten years’ confinement. 6 Appellant also testified that he
had known Roberson for two months, and during his interview with the police, he agreed that he
met Roberson shortly after being released from confinement. This evidence established that his
possession of a firearm on February 28, 2018, was unlawful because that date was after his
6 The judgment form reflects that appellant’s sentence commenced in May 2008. 8 May 2008 felony conviction but before the fifth anniversary of his release from confinement
following that conviction. 7 See id. § 46.04(a)(1).
Further, even if the date of the shooting was after the fifth anniversary of
appellant’s release from confinement following his May 2008 conviction, the evidence
established that appellant followed Roberson into the street, where he shot Roberson multiple
times with a firearm. This evidence conclusively established that at the time appellant used
deadly force, appellant possessed a firearm at a “location other than the premises at which [he]
lives.” See id. § 46.04(a)(2); Shepperd v. State, 586 S.W.2d 500, 504 (Tex. Crim. App. 1979)
(upholding jury finding that appellant was guilty of unlawful possession of firearm by felon,
considering phrase “away from the premises where he lives,” and determining that “adjacent
parking lot is not part of the premises where one lives”); see also Johnson v. State, 401 S.W.2d 837,
838 (Tex. Crim. App. 1966) (stating that “[i]t was shown that when the officers arrived upon the
scene, the deceased was lying partially in the street and the driveway in front of the premises”
(emphasis added)); Sharif v. State, 640 S.W.3d 636, 644–45 (Tex. App.—Houston [14th Dist.]
2022, no pet.) (concluding, in context of section 46.04 of Texas Penal Code, that trial court’s
definition in jury charge of “premises” as “building or a portion of building” “almost exactly
match[ed] commonly understood meaning of the word”).
Because the evidence conclusively established that appellant was “otherwise
engaged in criminal activity”—the unlawful possession of a firearm by a felon—at the time that
he used deadly force, there was not sufficient evidence of facts that would give rise to the
7 During the sentencing phase of trial, appellant confirmed that he served the full sentence for his May 2008 conviction, and the judgment for the May 2008 conviction reflects that he had about seven months of time credit at the time that the judgment was signed. This evidence supports that he was released from confinement in 2017. 9 presumption of reasonableness. See Tex. Penal Code §§ 2.05(b)(1), 9.32(b)(3); Morales,
357 S.W.3d at 7; Reyna v. State, 597 S.W.3d 604, 606 (Tex. App.—Houston [14th Dist.] 2020,
no pet.) (concluding that appellant was not entitled to presumption-of-reasonableness instruction
because record conclusively established that appellant was otherwise engaged in criminal
activity—dealing and possession of cocaine—at time that he used deadly force). It follows that
the trial court would not have erred in concluding that “the evidence as a whole clearly precludes
a finding beyond a reasonable doubt” that the presumption of reasonableness applied. See
Morales, 357 S.W.3d at 7.
Thus, we conclude that the trial court did not err in omitting a presumption-of-
reasonableness instruction under Section 9.32(b) of the Texas Penal Code and overrule
appellant’s sole issue. See Tex. Penal Code § 9.32(b). Further, because we conclude that the
trial court did not err, we do not address appellant’s arguments concerning harm. See Tex. R.
App. P. 47.1 (requiring appellate courts to issue “written opinion that is as brief as practicable
but that addresses every issue raised and necessary to final disposition of the appeal”).
Modification to Judgment
In its brief, the State requests that this Court modify the judgment to reflect the
jury’s affirmative deadly weapon finding.
This Court has authority to modify incorrect judgments when the necessary
information is available to do so. See id. R. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.
Crim. App. 1993). Here the jury found appellant guilty of murder “as charged in the
indictment,” and the indictment alleged that appellant caused the death of Roberson by shooting
him with “a firearm, a deadly weapon.” Thus, the jury implicitly found that appellant used a
10 deadly weapon in committing murder. See Duran v. State, 492 S.W.3d 741, 746–47 (Tex. Crim.
App. 2016) (observing that entry of deadly-weapon finding is appropriate when “the indictment
specifically allege[s] a ‘deadly weapon’ was used (using the words ‘deadly weapon’) and the
defendant [is] found guilty ‘as charged in the indictment’”).
Because the necessary information is available here, we modify the judgment of
conviction to delete and replace “N/A” with “Yes, a firearm” in the space designated for
“Findings on Deadly Weapon.”
CONCLUSION
For these reasons, we modify the judgment as stated above and, as modified,
affirm the trial court’s judgment of conviction.
__________________________________________ Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Modified and, as Modified, Affirmed
Filed: August 25, 2023
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