Lamelvin Dewayne Johnson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 31, 2022
• Docket: 01-19-00818-CR
• Status: Published

Opinion

Opinion issued March 31, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00776-CR NO. 01-19-00818-CR ——————————— LAMELVIN DEWAYNE JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Case Nos. 13-DCR-064483B, 15-DCR-069514A

MEMORANDUM OPINION

A jury convicted Appellant, LaMelvin DeWayne Johnson, of one count of

capital murder and one count of the first-degree felony offense of murder.1 The State

1 See TEX. PENAL CODE §§ 19.02(b) (murder), 19.03(a)(7) (person commits capital murder if person murders more than one person during same criminal transaction). sought imposition of the death penalty for the capital murder charge, but the jury

found that mitigating evidence precluded imposition of the death penalty. The trial

court therefore assessed Appellant’s punishment at confinement for life without the

possibility of parole on the capital murder charge. The trial court also assessed

Appellant’s punishment at confinement for life on the murder charge.

In three issues, Appellant contends that the trial court (1) abused its discretion

by denying his Batson challenge to a prospective juror;2 (2) erroneously excluded

expert testimony, depriving him of his right to present a complete defense; and

(3) erroneously refused to give a requested instruction on the defense of mistake of

fact. We affirm.

Background

Appellant shot and killed three people on September 29, 2013, at the car wash

where he had worked. It is undisputed that Appellant was the person who shot the

three complainants—Harvey Simmons, Johnny Simmons, and Donntay Borom—

but the parties presented conflicting evidence concerning the events leading up to

the shooting as well as whether Appellant acted in self-defense.

A. The Shooting

Harvey Simmons owned and operated a car wash in Stafford, Texas. He

employed several people at the car wash, including his uncle Johnny Simmons,

2 See Batson v. Kentucky, 476 U.S. 79 (1986). 2 Donntay Borom, Ronald Walker, Shaquiel Oliver, Chantiqua Perkins, Darryl Hines,

and Appellant. All the employees were present at the car wash on the day of the

shooting. Walker, Oliver, and Perkins all testified that the work environment at the

car wash was generally positive, but Appellant caused friction amongst the

employees and occasionally made negative comments about Harvey behind his back

to the other employees. Harvey learned of these comments. A day or two before the

shooting, Harvey mentioned to Oliver and Hines that he was thinking of firing

Appellant.

The car wash had a contract with BMW to wash and detail certain cars during

home games for the Houston Texans at NRG Stadium. Unbeknownst to most of the

employees, Harvey and BMW had been engaged in a dispute over the contract for

several weeks leading up to the underlying incident, and it was uncertain whether

the contract was still in force. On the morning of the incident, the car wash

employees gathered at the car wash before carpooling to NRG Stadium. Harvey told

the employees to start washing cars, but they were only at NRG Stadium for fifteen

to twenty minutes before they were informed that the contract had been cancelled

and they needed to leave.

Upon returning to the car wash, Harvey called a meeting to discuss what

happened with the contract. All the employees gathered in, or just outside, a small

garage on the property. Harvey, Johnny, and Donntay were all inside the garage.

3 Harvey began the meeting by apologizing for being unable to follow through with

the contract, and he stated that he still intended to pay everyone for their time.

Harvey then asked if any of the employees had any issues with him. When no one

responded, Harvey asked Appellant specifically if he had a problem. According to

Oliver, Appellant said, “If I have a problem with you I would say it to your face.”

Harvey fired Appellant but promised to pay him for that day and the previous week.

After a heated argument, Appellant walked out of the garage. Walker then

heard Harvey say, “All you going to do is go get a gun.” Walker did not hear any

threats by either Harvey or Appellant during this conversation. Oliver did not hear

Harvey or anyone else threaten Appellant with a weapon or talk about getting a

weapon. Perkins testified that Appellant used profanity and called Harvey names,

but Appellant did not threaten Harvey and Harvey did not threaten Appellant. She

stated that nobody mentioned having a weapon, and nobody reached into their

pockets as if reaching for a weapon.

Walker was standing just outside the garage, and he saw Appellant casually

walk to his vehicle after Harvey fired him. No one followed Appellant to his vehicle

or threatened to follow him. Walker saw Appellant reach under the driver’s seat and

pull out a gun. When Appellant walked back toward the garage, Walker attempted

to intervene and de-escalate the situation. He grabbed Appellant’s hand holding the

4 gun and told him, “Hey, man, it’s not worth it.” Hines also tried to intervene, saying,

“[I]t’s not worth all that.”

Appellant was focused on Harvey, and he pushed past Walker and Hines and

continued to the garage. By this point, Harvey had moved from inside the garage to

stand next to a truck that was parked parallel to the garage. He was holding money

in his hands. Johnny and Donntay were still inside the garage. Harvey “froze” when

he saw Appellant with the gun, and he did not say anything or move after Appellant

raised the gun. According to Perkins, as he walked towards Harvey, Appellant

threatened to kill Harvey. Harvey did not say anything in response, nor did he—or

anyone else—move.

Appellant walked around the end of the truck and shot at Harvey, but the gun

jammed. After the gun jammed, Walker and Hines tried to intervene a second time.

Perkins heard Appellant tell them, “Move. If you don’t move, I’ll kill you too.”

According to Hines, Appellant said, “Man, move, I’m going to the penitentiary

today.” Appellant then shot Harvey. After Appellant shot Harvey, Walker heard

Appellant say, “You going to get some of this too,” followed by two more gunshots.

Walker ran away and called 911. But as he ran, he looked back and saw

Appellant standing over Harvey and heard approximately twelve or thirteen more

gunshots. Appellant walked back to his vehicle and left the scene. After Appellant

left, Walker returned to the scene and waited for police.

5 Perkins ran away when the shooting started, but she looked back and saw

Appellant shoot Donntay, who was sitting in a folding chair inside the garage and

using his phone. Donntay did not jump up from his chair or say anything. Hines also

recounted the shooting. He testified that Donntay and Johnny were still seated inside

the garage when the shooting started, and Hines heard Appellant ask, “Do you want

some?” Appellant then started shooting again. Hines did not recall either Donntay

or Johnny jumping up or saying anything. Although Hines ran away after these shots,

he looked back and saw Appellant standing over Harvey before firing another shot

or two. Appellant then walked back to his car and left the scene.

Appellant testified on his own behalf. Shortly after Appellant began working

at the car wash, Harvey made him an assistant manager. Prior to the day of the

shooting, Appellant had not had any altercations with Harvey, and he did not know

that Harvey intended to fire him. On the day of the shooting, Appellant and the other

employees prepared to go to NRG Stadium, but Appellant was aware that the car

wash’s contract with BMW had already been canceled. According to Appellant,

Harvey held a meeting before leaving for NRG Stadium and in this meeting, he told

everyone that the contract had been canceled but they were going to show up anyway

and hope the contract would be renewed. Harvey also told all the employees that

even if the contract was not renewed, he would still pay the employees.

6 When they arrived back at the car wash, Appellant attempted to speak with

Harvey to get his pay a day early. Harvey did not give Appellant his pay. Instead, he

called a meeting of all the employees. Harvey started the meeting by asking if there

was anyone present who did not want to be there. When nobody answered, Harvey

asked, “Well, what about you, [Appellant]?” Appellant responded, “Man, you know,

if I didn’t want to be here I wouldn’t be here. This ain’t my only source of income.”

Harvey became angry and accused Appellant of “always talking down on [him].”

The conversation became heated, and eventually Appellant left the garage and

walked toward his car.

According to Appellant, the situation escalated after he left to go to his car.

He testified that when he reached his car door, Harvey said, “You better get your

bitch ass here before we put you in the hospital.” Appellant responded, “You got to

be fucked up, you ain’t going to put me nowhere.” Harvey then attempted to punch

him, and Appellant tried to get inside his car. Appellant was able to deflect many of

the blows directed at his face, but then he saw two people—Johnny and Donntay—

behind Harvey. Johnny and Donntay were helping Harvey, with Johnny hitting

Appellant’s legs and Donntay kicking Appellant in the groin. Harvey hit Appellant

in his neck and back, and when Appellant tried to climb under the steering wheel of

his car, he saw his gun under the driver’s seat. Appellant testified, “I pulled the gun

and I rack one in and I just started shooting.” Appellant stated that he did not intend

7 to kill any of the complainants, but he believed his life was threatened. Appellant

then fled the scene and disposed of the gun by throwing it out of his car window.

After speaking with his cousin and his mother, Appellant turned himself in to the

Stafford Police Department the next day.

Hines also testified that Harvey had threatened Appellant. According to

Hines, Harvey threatened Appellant during the argument in the garage. Appellant

responded by saying, “No, you’re not going to do anything to me.” Hines could not

recall Harvey’s exact words, but Hines said that “[i]t was enough to make, you know,

make you feel uneasy, like you’re being threatened.” Hines acknowledged that he

had previously given a statement to police shortly after the shooting, but that the

prior statement omitted any mention of Harvey threatening Appellant. Hines was

brought to the Fort Bend County Jail several days before his testimony. He saw

Appellant in the jail and they had a conversation. Hines testified that Appellant asked

“could I help him,” and Hines responded, “[Y]eah, if I can, I’ll help you.” Hines

testified, “He gave me a story other than what I had stated on tape six years ago.”

In addition to the shooting, Appellant also testified about his upbringing.

When Appellant was a child, his mother was involved in a long-term relationship

with an abusive boyfriend, and Appellant testified concerning abuse that his mother

experienced as well as abuse that he experienced. Appellant grew up in a poverty-

stricken neighborhood, and he frequently witnessed drug deals and shootings.

8 Appellant was regularly bullied when he was in school, and when he was fourteen,

he was stabbed in the temple by a classmate. He also got into a fight with someone

who later walked up to his house and fired a gun through the window into the house.

When Appellant was sixteen, he got into a physical fight with his mother’s

boyfriend and ran away from home. He slept in vacant apartments for around three

months and started selling drugs during this time. Appellant has a 1995 conviction

for possession of a controlled substance, a 2000 conviction for possession of a

controlled substance, a 2007 conviction for criminal mischief, and a 2007 conviction

for attempted deadly conduct.

B. The Trial

The trial court instructed the jury on one count of capital murder relating to

the shooting of Harvey and Johnny during the same criminal transaction and one

count of murder relating to the shooting of Donntay. The trial court also instructed

the jury on the lesser-included offenses of murder and manslaughter and instructed

the jury on the defenses of self-defense and necessity. The trial court refused

Appellant’s requested instruction on mistake of fact relating to his allegedly

mistaken belief that deadly force was immediately necessary to defend himself

against the complainants’ use of deadly force.

The jury found Appellant guilty of both capital murder and murder. The State

sought the death penalty. During the punishment phase of trial, the jury found that

9 sufficient mitigating evidence existed such that the death penalty should not be

imposed. The trial court therefore assessed Appellant’s punishment on the capital

murder charge at confinement for life without the possibility of parole. The court

assessed punishment on the murder charge at confinement for life. This appeal

followed.

Batson Challenge

In his first issue, Appellant argues that the State impermissibly used a

peremptory strike against Veniremember 43 (“Juror 43”) on the basis of that juror’s

race, and the trial court abused its discretion by denying Appellant’s challenge to the

strike made pursuant to Batson v. Kentucky.

A. Standard of Review

In Batson v. Kentucky, the United States Supreme Court held that the Equal

Protection Clause of the Fourteenth Amendment prohibits a prosecutor from

exercising peremptory strikes based solely on the potential juror’s race. See 476 U.S.

79, 89 (1986); Nieto v. State, 365 S.W.3d 673, 675 (Tex. Crim. App. 2012); see also

TEX. CODE CRIM. PROC. art. 35.261 (codifying Batson). “In the eyes of the

Constitution, one racially discriminatory peremptory strike is one too many.”

Flowers v. Mississippi, 139 S. Ct. 2228, 2241 (2019).

The Supreme Court has established a three-step process for trial courts to use

in determining claims that a peremptory strike was based on the juror’s race. Snyder

10 v. Louisiana, 552 U.S. 472, 476 (2008). First, a defendant must make a prima facie

showing that the State has exercised a peremptory challenge on the basis of the

juror’s race. Id.

If the defendant makes that showing, then at the second step, the State must

offer a race-neutral basis for striking the prospective juror. Id. at 476–77.

Significantly, the State “need only tender an explanation that is racially neutral on

its face.” Blackman v. State, 414 S.W.3d 757, 764–65 (Tex. Crim. App. 2013). This

step “does not demand an explanation that is persuasive, or even plausible.” Purkett

v. Elem, 514 U.S. 765, 767–68 (1995) (per curiam). The issue is the “facial validity

of the prosecutor’s explanation,” and “[u]nless a discriminatory intent is inherent in

the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. at

768 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality op.)). “A

neutral explanation in the context of our analysis here means an explanation based

on something other than the race of the juror.” Hernandez, 500 U.S. at 360 (plurality

op.).

“Where the State has offered a race-neutral explanation for the strikes, the

defendant must prove that the prosecutor’s reasons were merely a sham or pretext.”

Adair v. State, 336 S.W.3d 680, 686 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d). At this third and final step of the analysis, the trial court considers the ultimate

plausibility of the State’s explanation. Blackman, 414 S.W.3d at 765; see Batson,

11 476 U.S. at 98 (stating that once State tenders race-neutral explanation, trial court

has duty to determine whether defendant has established purposeful discrimination).

The trial court must determine whether the stated reasons for the strike “were the

actual reasons or instead were a pretext for discrimination.” Flowers, 139 S. Ct. at

2241. We must uphold the trial court’s ruling on appeal unless it is clearly erroneous.

Snyder, 552 U.S. at 477; Blackman, 414 S.W.3d at 765.

B. Analysis

When defense counsel made a Batson challenge to the State’s peremptory

strike of Juror 43, the State gave an explanation for its peremptory strike. “Because

the State offered its reasons for the strike, the prima facie case inquiry is moot, and

we move on to whether the reasons offered are in fact race-neutral.” Johnson v. State,

68 S.W.3d 644, 649 (Tex. Crim. App. 2002); Jones v. State, 431 S.W.3d 149, 155

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

Turning to Batson step two, we determine whether the prosecution exercised

its peremptory strike based on “something other than the race of the juror.”

Hernandez, 500 U.S. at 360 (plurality op.). In answering this question, “the trial

court does not consider any disparate treatment of panelists or other evidence tending

to show that the explanation is pretextual; these matters are considered as part of the

third step of a Batson challenge.” Jackson v. Stroud, 539 S.W.3d 502, 507 (Tex.

App.—Houston [1st Dist.] 2017, no pet.); see Snyder, 552 U.S. at 483–85

12 (conducting comparative juror analysis as part of third step of Batson inquiry);

Jones, 431 S.W.3d at 155–59 (considering disparate treatment of panelists as part of

third step).

Juror 43 and Appellant are both African Americans. When defense counsel

raised a Batson challenge to the State’s peremptory strike on Juror 43, the State

responded that it was exercising its peremptory strike based on Juror 43’s stated

concerns in a juror questionnaire that the death penalty is used “too often on people

of color and low income people who can’t hire a good lawyer”; “a lot of innocent,

unrepresented people have died in vain” due to the death penalty; “race plays an

important role in a person’s conviction”; “people are less likely convicted against

people of color”; and “racism within the system needs to be fixed.” The State also

pointed to Juror 43’s statement in individual voir dire that he believed the death

penalty was warranted in a lot of cases but also feels “like a lot of people are

railroaded.” Upon further questioning by the court, the prosecution reiterated that it

was exercising its peremptory strike on Juror 43 because he “has a lens through

which he looks at the evidence because of his feeling that the system is set up to

where minorities are—receive a harsher sentence or punishment.”

In Pondexter v. State, the Court of Criminal Appeals held that the State does

not violate Batson step two by striking a veniremember based on stated concerns

regarding unfairness in the criminal justice system. See 942 S.W.2d 577, 581 (Tex.

13 Crim. App. 1996). The State defended its peremptory strike of a minority juror for

reasons including her belief “that the criminal justice system is fair ‘sometimes.’”

Id. The Court of Criminal Appeals held that the State had asserted race-neutral

reasons for the strike, ultimately affirming the denial of the defense’s Batson

challenge. Id. at 581–82.

Like the Court of Criminal Appeals in Pondexter, federal courts and other

state supreme courts uniformly hold that Batson does not prohibit the state from

striking a juror based upon the juror’s expressed concerns about the criminal justice

system. United States v. Steele, 298 F.3d 906, 914 (9th Cir. 2002) (holding that

juror’s expressed view that “racial discrimination may taint the criminal justice

system” was race-neutral justification); Tolbert v. Gomez, 190 F.3d 985, 989 (9th

Cir. 1999) (“[C]hallenging a prospective juror on the basis of his expressed opinions

about the judicial system does not violate Batson.”); United States v. Fike, 82 F.3d

1315, 1320 (5th Cir. 1996) (juror’s stated concerns about racism in judicial system

was race-neutral justification for strike), overruled on other grounds by United

States v. Brown, 161 F.3d 256 (5th Cir. 1998); People v. Armstrong, 433 P.3d 987,

1025–26 (Cal. 2019); People v. Hardy, 418 P.3d 309, 330 (Cal. 2018) (“A

prospective juror’s distrust of the criminal justice system is a race-neutral basis for

his excusal.”); State v. King, 735 A.2d 267, 282–83 (Conn. 1999) (juror’s expressed

“views about the unfairness of certain aspects of the criminal justice system” were

14 race-neutral justification for strike); State v. Martin, 773 N.W.2d 89, 101–04 (Minn.

2009).

In so holding, those courts point to the nature of Batson’s prohibition: “Batson

does not forbid striking a juror who holds a particular opinion about the U.S. justice

system. Rather, it forbids striking jurors based on their race.” Fike, 82 F.3d at 1320.

They reason that striking a potential juror based upon a juror’s stated opinion is race

neutral because any person—regardless of race—can hold the same view. See Steele,

298 F.3d at 914; Tolbert, 190 F.3d at 989; Armstrong, 433 P.3d at 1026. Even so,

courts have found Batson violations where, for example, the prosecution poses

questions about racial injustice only to prospective jurors of a particular race. See

People v. Mallory, 993 N.Y.S.2d 609, 611–12 (N.Y. App. Div. 2014) (reversing and

granting new trial under Batson where prosecutor directed question about whether

police officers “unfairly target members of the minority community” only to “black

prospective jurors and not their white counterparts”). This analysis, however, comes

at the final step of the Batson analysis—determining whether the State’s

justifications are mere pretexts for the racial discrimination that Batson prohibits.

See Jones, 431 S.W.3d at 155–59 (conducting comparative analysis as part of third

step of Batson inquiry).

Because Pondexter is binding on our Court, we are compelled to hold that the

State satisfied its Batson step-two burden. See Winzer v. State, No. 05-14-01079-

15 CR, 2015 WL 4931418, at *4 (Tex. App.—Dallas Aug. 18, 2015, pet. ref’d) (mem.

op., not designated for publication) (following Pondexter as controlling where

veniremember expressed concerns about racial bias in criminal justice system);

Stoglin v. State, No. 03-03-00146-CR, 2004 WL 1171433, at *2–3 (Tex. App.—

Austin May 27, 2004, no pet.) (mem. op., not designated for publication) (same); cf.

Harris v. State, AP-76,810, 2014 WL 2155395, at *9 (Tex. Crim. App. May 21,

2014) (mem. op., not designated for publication). We therefore proceed to Batson’s

third and final step, determining whether Appellant carried his burden of establishing

that the prosecutor’s reason was merely a sham or pretext.

The Texas Legislature enacted Code of Criminal Procedure article 35.261 to

codify and implement Batson. TEX. CODE CRIM. PROC. art. 35.261. Whenever a

defendant makes a claim that veniremembers have been peremptorily challenged

based on race, article 35.261 must be followed. Hill v. State, 827 S.W.2d 860, 863

(Tex. Crim. App. 1992). To be timely, the statute requires that the defendant make

the Batson challenge “[a]fter the parties have delivered their lists [of peremptory

strikes] to the clerk under Article 35.26 of this code and before the court has

impanelled the jury.” TEX. CODE CRIM. PROC. art. 35.261; Hill, 827 S.W.2d at 863;

Saldivar v. State, 980 S.W.2d 475, 482–84 (Tex. App.—Houston [14th Dist.] 1998,

pet. ref’d). The jury is “impanelled” when the members of the jury have been

selected and sworn. Hill, 827 S.W.2d at 864. Batson error is subject to principles of

16 ordinary procedural default. Batiste v. State, 888 S.W.2d 9, 17 n.5 (Tex. Crim. App.

1994).

Appellant’s counsel did not argue that the State’s reasons were pretextual or

a sham until after the trial court had sworn the jury and released the veniremembers

who were not chosen.3 Prior to that point, Appellant’s counsel focused exclusively

on whether the State had satisfied Batson step two. He did not “even make a general

argument that he believed the [State’s] explanations to be a pretext.” See Adair, 336

S.W.3d at 689 n.6. As such, Appellant waived a Batson step-three challenge.

Assuming, however, that Appellant has not waived this issue, in conducting

the step-three analysis, courts have identified numerous factors that tend to show

purposeful racial discrimination when present. These factors include statistical

analysis of the percentage of prospective jurors of a particular race that are struck

during voir dire; disparate treatment of prospective jurors, where the State’s

explanations for striking jurors of a particular racial group apply equally to members

3 At this point, because the unchosen veniremembers had been released, the trial court’s only remedy would have been a mistrial. Appellant disagrees, arguing that the trial court could have seated Juror 43. As support, Appellant cites caselaw holding that reinstatement of an improperly challenged prospective juror is an appropriate remedy for a Batson violation. See State ex rel. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex. Crim. App. 1993); Degar v. State, 482 S.W.3d 588, 591 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see also Craig v. State, 82 S.W.3d 451, 453 n.1 (Tex. App.—Austin 2002, pet. ref’d) (concluding that no Batson violation occurred but noting that reinstatement of challenged juror is appropriate remedy for violation). Curry and Degar are both factually distinguishable because the jury had not been sworn when the Batson challenge was made. 17 of another race who were not struck; use of jury shuffles when a large number of

prospective jurors of a particular race are seated at the beginning of the panel;

disparate questioning of prospective jurors, where the State asks questions in such a

way that is designed to elicit objectionable responses only from members of a

particular racial group; a general policy by the district attorney’s office to exclude

members of a particular race from juries; whether members of a particular racial

group are not questioned before being struck; and the extent to which the record

contradicts the State’s explanation for the strikes. See, e.g., Miller-El v. Dretke, 545

U.S. 231, 240–65 (2005); Nieto, 365 S.W.3d at 678–79; Jones, 431 S.W.3d at 155–

56.

The problem here is that the appellate record does not contain evidence

concerning the racial makeup of the venire or the jury. Neither the jury cards nor the

jury questionnaires are in the record. Thus, we cannot perform a statistical analysis

such as that performed in Miller-El, where the evidence reflected that the State

exercised its peremptory strikes in such a way as to exclude 91% of eligible African

American prospective jurors. See 545 U.S. at 240–41; see also Bundage v. State, 470

S.W.3d 227, 236 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (noting that

appellate court cannot determine whether disproportionate number of strikes were

used to challenge African American prospective jurors when record contained no

evidence of racial composition of venire).

18 Likewise, we cannot make any findings of disparate questioning. Juror 43 was

the only veniremember questioned about racial injustice in the criminal justice

system, but we do not know how many other African Americans were on the venire

panel. Nor do we know how other veniremembers answered the inquiries on the

questionnaire that Juror 43 answered. And there is no evidence in the record that the

prosecutorial office had a practice of excluding African Americans from juries. We

therefore hold that Appellant has not demonstrated that the trial court’s Batson ruling

was clearly erroneous. See Blackman, 414 S.W.3d at 765 (“[A] reviewing court

should examine a trial court’s conclusion that a racially neutral explanation is

genuine, not a pretext, with great deference, reversing only when that conclusion is,

in view of the record as a whole, clearly erroneous.”). We overrule Appellant’s first

issue.

Exclusion of Expert Testimony

In his second issue, Appellant contends that the trial court erred by excluding,

during the guilt-innocence phase, the expert testimony of Dr. Jolie Brams, which

deprived him of his right to present a complete defense.

A. Standard of Review and Governing Law

We review a trial court’s decision to exclude evidence for an abuse of

discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). We will

uphold the trial court’s decision if it falls within the “zone of reasonable

19 disagreement.” Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). We

may not substitute our own decision for that of the trial court. Gonzalez, 544 S.W.3d

at 370.

Texas Rule of Evidence 702 provides that “[a] witness who is qualified as an

expert by knowledge, skill, experience, training, or education may testify in the form

of an opinion or otherwise if the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to determine a

fact in issue.” TEX. R. EVID. 702. Expert testimony that assists the jury in

determining a fact in issue is admissible. Flores v. State, 513 S.W.3d 146, 162 (Tex.

App.—Houston [14th Dist.] 2016, pet. ref’d); Echavarria v. State, 362 S.W.3d 148,

153 (Tex. App.—San Antonio 2011, pet. ref’d) (“An expert’s testimony is not

admissible unless it will ‘assist the trier of fact to understand the evidence or to

determine a fact in issue.’”) (quoting TEX. R. EVID. 702).

Code of Criminal Procedure article 38.36 specifically addresses evidence in

prosecutions for murder and provides:

(a) In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense. (b) In a prosecution for murder, if a defendant raises as a defense a justification provided by Section 9.31, 9.32, or 9.33, Penal Code

20 [self-defense or defense of a third person], the defendant, in order to establish the defendant’s reasonable belief that use of force or deadly force was immediately necessary, shall be permitted to offer: (1) relevant evidence that the defendant had been the victim of acts of family violence committed by the deceased, as family violence is defined by Section 71.004, Family Code; and (2) relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to family violence that are the basis of the expert’s opinion.

TEX. CODE CRIM. PROC. art. 38.36; Ruffin v. State, 270 S.W.3d 586, 596 (Tex. Crim.

App. 2008) (stating that article 38.36 “is one of the few Texas statutes that explicitly

states the obvious: evidence offered by either the defense or prosecution is relevant

(and presumptively admissible) to prove or disprove the pertinent mens rea at the

time of the offense”). Relevant evidence is “evidence which has any tendency to

make the existence of any fact of consequence more or less probable than it would

be without the evidence.” Gonzalez, 544 S.W.3d at 370; TEX. R. EVID. 401. To be

relevant, evidence does not need to prove or disprove a particular fact by itself;

instead, it is sufficient if the evidence “provides a small nudge toward proving or

disproving a fact of consequence.” Gonzalez, 544 S.W.3d at 370.

Texas courts have generally rejected attempts to offer any testimony, other

than that of the defendant, concerning his mental state at the time of the offense.

Avila v. State, 954 S.W.2d 830, 839 (Tex. App.—El Paso 1997, pet. ref’d); Osby v.

21 State, 939 S.W.2d 787, 791 (Tex. App.—Fort Worth 1997, pet. ref’d); see also

Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997) (“It is impossible for

a witness to possess personal knowledge of what someone else is thinking. The

individual is the only one who knows for certain the mental state with which he is

acting.”); Jackson v. State, 548 S.W.2d 685, 692–93 (Tex. Crim. App. 1977)

(upholding trial court’s refusal to allow psychiatrist to testify concerning defendant’s

state of mind at time of alleged offense). In 1988, the Court of Criminal Appeals

created a narrow exception to this rule to allow expert testimony concerning the

mental state of a defendant at the time of a killing where the defendant had been a

victim of domestic violence. See Fielder v. State, 756 S.W.2d 309, 318–21 (Tex.

Crim. App. 1988); Avila, 954 S.W.2d at 839; Osby, 939 S.W.2d at 790. The Texas

Legislature subsequently codified the rule in Fielder as article 38.36(b). See Osby,

939 S.W.2d at 790.

Testimony from the defendant himself concerning facts relevant to his mental

state at the time of the offense is admissible under article 38.36(a), even if the case

does not involve family violence. Avila, 954 S.W.2d at 840. However, expert

testimony concerning the condition of the defendant’s mind at the time of the offense

is inadmissible under article 38.36(a). Id. at 841; Osby, 939 S.W.2d at 790 (noting

that post-Fielder, Texas Legislature amended predecessor statute to article 38.36 to

add what is now article 38.36(b), and addition of subsections of article 38.36(b) “is

22 some indication that the legislature intended expert testimony about the defendant’s

state of mind to be admissible only in cases where the deceased had previously

committed acts of family violence against the accused”). Construing article 38.36 as

a whole, our sister courts have held that the Legislature intended for expert testimony

“to be admissible only when the expert’s opinion about the defendant’s mental state

is based on acts of family violence committed by the deceased against the

defendant.” Osby, 939 S.W.2d at 791; see Avila, 954 S.W.2d at 841 (“[I]n order for

expert testimony concerning the mental state of the accused at the time of the offense

to be admissible, the expert must base his opinion in large part on the history of

domestic violence between the defendant and the victim.”).

Expert testimony may, however, be admissible when it negates the mens rea

element of an offense. “[R]elevant evidence may be presented which the jury may

consider to negate the mens rea element” of the offense, and this evidence “may

sometimes include evidence of a defendant’s history of mental illness.” Jackson v.

State, 160 S.W.3d 568, 574 (Tex. Crim. App. 2005). The trial court has discretion to

determine whether evidence of mental illness, for example, may be presented to

negate mens rea, or whether the evidence should be excluded on special grounds.

Id.; see Ruffin, 270 S.W.3d at 587–88 (“[B]oth lay and expert testimony of a mental

disease or defect that directly rebuts the particular mens rea necessary for the

charged offense is relevant and admissible unless excluded under a specific

23 evidentiary rule.”). This evidence “may also be excluded if it does not truly negate

the required mens rea.” Ruffin, 270 S.W.3d at 596; see Mays v. State, 318 S.W.3d

368, 381 (Tex. Crim. App. 2010) (stating that mental illness testimony may be

relevant for mitigation purposes during punishment phase, but “expert testimony that

does not directly rebut the culpable mental state usually may be excluded at the guilt

stage”).

B. Relevant Facts

As part of his case-in-chief in the guilt-innocence phase of trial, Appellant

sought to introduce the testimony of Dr. Jolie Brams, a psychologist with a practice

in forensic consulting, including as a mitigation specialist in capital murder cases.

At a hearing outside the presence of the jury, Dr. Brams testified that she had met

with Appellant on three occasions and formed an opinion concerning how violence

and traumatic events that he witnessed and experienced during his childhood and

adolescence affected his development and his ability to perceive and react to danger

and to situations like the incident with Harvey Simmons.

Dr. Brams stated that her opinions were based on established psychological

science and that extensive literature exists on how exposure to violence causes

changes in the brains of children, which then impacts functioning as adults. When

asked if she intended to offer testimony about Appellant’s mental state at the time

of the offense, she stated, “In general, but also the precursors, the developmental

24 trajectory and the issues that have—that would have lead somebody in his situation

to have particular perceptions of a situation . . . and responses.” She further stated

that her job was to educate or inform the jury “as to how somebody with

[Appellant’s] life experiences may assess and react to situations in a different way

than other people may do so.”

The State objected to allowing Dr. Brams to testify. It did not challenge her

qualifications, but instead argued that, when self-defense is at issue, the Court of

Criminal Appeals has generally prohibited testimony concerning what a defendant’s

mental state was at the time of the offense because the self-defense statute used a

reasonable person standard. The State argued that an exception exists in cases

involving family violence, in which the defense may present evidence—including

expert testimony—concerning the relationship between the defendant and the

complainant, but this case does not involve family violence. Appellant argued that

self-defense is determined from the standpoint of the actor and he was therefore

entitled to present psychological testimony concerning how his upbringing had

affected him to explain his decision to defend himself on the day of the shooting.

Defense counsel stated that he was not raising the insanity defense or arguing that

Appellant could not follow the law; instead, he sought to shed “light on the decisions

that [Appellant] made that day.”

Defense counsel and the trial court had the following exchange:

25 The Court: Are you saying that [Dr. Brams is] going to state that [Appellant] is a reasonable and prudent person or that he reacts like a reasonable and prudent person? Defense counsel: I think she’s going to say he reacts as a reasonable and prudent person would who’s been subjected to the childhood he was. The Court: Well, now see, I think that’s where—that’s the divergent point. I think what [the prosecutor] has been arguing is that because it’s a reasonable and prudent person standard, that you can’t have a deviation from that for a single case or for every case. Defense counsel: I’m not asking to deviate from the standard. That’ll be for the jury to decide about whether he was reasonable and prudent. They—you know, they could flip this—the information that they’ve had and the information that hopefully they’ll get from Dr. Brams, they can flip it against the Defense. They can say, you know what, he’s damaged by his upbringing. He’s a hair-trigger guy, so we don’t think he acted reasonably and prudently. It cuts both ways. So I think it’s just information that a jury is entitled to get to get a full appreciation and understanding of what happened out there that day. And they’re capable of deciding whether or not he acted reasonably and prudently. I mean, I don’t think this is to confuse the jury. You’re going to give them their instructions on the law that they have to consider when they decide whether or not they believed he acted in self-defense.

Defense counsel further argued that Dr. Brams would testify that Appellant’s

life experience “affects his perception of threat situations and how he reacts to

those,” and therefore her testimony was relevant to whether Appellant “reasonably

26 believed it was necessary to use deadly force to defend himself.” Appellant further

argued that in murder prosecutions, the Code of Criminal Procedure allows both the

State and the defense to offer testimony of “all relevant facts and circumstances

going to show the condition of the mind of the accused at the time of the offense.”

The trial court again stated that it believed testimony from Dr. Brams would “start

to confuse what [is] reasonable and prudent,” but it allowed defense counsel to put

on additional testimony from Dr. Brams before making a ruling.

Dr. Brams testified that the traumatic and violent events Appellant witnessed

and experienced during his childhood and youth “plays a major role in the condition

of [his] mind, his mindset, [and] psychological functioning at the time of the

offense.” Appellant, due to his upbringing, experienced chronic hypervigilance and

“had to be on guard and on alert physically, behaviorally, emotionally,

developmentally, both within his household and in the community.”

Appellant also experienced violence directly—as a victim of child abuse—

and indirectly—as a witness to abuse of his mother. As a result, he “lived in a

situation where survival was the norm, even for the most vulnerable. And it wasn’t

just for himself, it’s what he observed and learned about others in his environment,

both in his home and his community.” Appellant was exposed to violence beginning

in his preschool years, and Dr. Brams testified that this exposure “puts the

developing mind, a mind that is structurally changing and biologically changing, on

27 high alert and it changes forever the way a person is able to perceive and react to

their environment.”

Appellant was not able to focus on learning because he was constantly

wondering what would happen at home and how safe he was in the community, and

as a result, “that learning, thinking part of his brain was suppressed and the survival

part of his brain was put on constant alert.” The threats and exposure to violence

persisted for years, from when Appellant was a small child until his teenage years.

Dr. Brams testified that it is well-established in the psychological literature that

adverse childhood experiences like the ones Appellant experienced “exponentially

increases” chances for substance abuse, criminal behavior, mental health problems,

and physical health problems in adults.

Dr. Brams further testified that hypervigilance increases physiological

arousal, changes perception to the environment, and changes reactions to certain

situations. Chronic hypervigilance “changes the way that the brain functions since

childhood.” These individuals “become overly sensitive to changes in the

environment or aspects in the environment that may be perceived as dangerous.”

They do not perceive situations in the “typical” way, but instead “perceive things

from being on guard, physiologically aroused, and relating those aspects in the

environment to previous traumatic situations.” Dr. Brams stated:

But the perceptions are the world’s not a safe place to be, which changes your perceptions and your reactivity, how you react to 28 situations, that no one can be trusted. So you look at the world from a defensive perspective. The world is not a safe place, so your first thought is self protection. And that could be many things. It could be, you know, self-defense. It also could be withdrawal. It could be difficulties in relationships, whatever. And people who have been exposed to this type of stress and are hypervigilant and fearful, do not perceive situations in the same way most of us will. It changes your perceptions.

These individuals “tend to be very tense or on guard,” they are “always looking for

threats,” and they are “always looking for danger.”

Dr. Brams opined that Appellant’s state of mind on the day of the shooting

“was probably the same as his mind the day before the shooting and during his adult

life and child life”; that is, he had “to be ready to react immediately” and had “to

survive.” She emphasized that this was not a mental illness or insanity but was

instead “a habitual way of having to perceive and relate to the world based upon the

trauma you’ve experienced as a child.”

Ultimately, the trial court sustained the State’s objection and ruled that Dr.

Brams would not be allowed to testify during the guilt-innocence phase of the trial.4

C. Exclusion of Dr. Brams’s Testimony

On appeal, Appellant argues that the trial court erred by excluding Dr.

Brams’s testimony during the guilt-innocence phase of trial. He argues that the jury,

4 Dr. Brams testified during the punishment phase of trial. Her testimony included the topics Appellant had wished to present during the guilt-innocence phase. 29 in determining whether he acted in self-defense when he shot the complainants, was

required to view the situation from his standpoint to determine whether he

reasonably believed deadly force was immediately necessary to protect himself. Dr.

Brams’s testimony, which addressed how Appellant perceived his environment and

potential threats due to his upbringing, “would have been extremely helpful in

assisting the jury in determining whether he acted reasonably.” Appellant argues that

Dr. Brams’s testimony was relevant and should have been admitted. We disagree.

Under the defense of self-defense, a defendant’s conduct is justified if he

formed a reasonable belief that deadly force was immediately necessary to protect

himself from another’s use or attempted use of unlawful deadly force. See TEX.

PENAL CODE §§ 9.31–.32; Echavarria, 362 S.W.3d at 154. The Penal Code defines

“reasonable belief” 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(42). This is an

objective standard. Davis v. State, 104 S.W.3d 177, 181 (Tex. App.—Waco 2003,

no pet.). The reasonableness of a defendant’s belief that force was required to defend

himself is viewed from the defendant’s standpoint at the time he acted. Benavides v.

State, 992 S.W.2d 511, 521 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Thus,

“[a]lthough the jury employs an objective standard to determine the reasonableness

of the defendant’s belief, it must view the facts from the defendant’s perspective.”

Davis, 104 S.W.3d at 181.

30 In the offer of proof, Dr. Brams testified that due to the violence that Appellant

witnessed and experienced in his home, his school, and his community while

growing up, he experienced chronic hypervigilance which affected the development

of his brain and his perceptions of threats. Appellant was constantly “on guard” and

“always looking for threats.” She opined that Appellant’s state of mind on the date

of the shooting “was probably the same as his mind the day before the shooting and

during his adult life and child life”; he had “to be ready to react immediately” and

had “to survive.”

Appellant’s trial testimony concerning the events that occurred at the car wash

raised the issue of self-defense. However, Dr. Brams’s testimony did not address

how an ordinary and prudent person would react to this situation or whether an

ordinary and prudent person would have formed a reasonable belief that deadly force

was immediately necessary to protect himself from another’s use of force. Instead,

her testimony addressed how repeated violent encounters during childhood and

adolescence—such as the ones Appellant experienced—can affect a person’s brain

structure and their perceptions and reactions. This testimony is relevant to whether

Appellant subjectively believed that deadly force was immediately necessary. But it

is not relevant to the question whether Appellant, when faced with the situation at

the car wash, formed a reasonable belief—that is, “a belief that would be held by an

ordinary and prudent man in the same circumstances”—that deadly force was

31 immediately necessary to protect himself from the complainants’ use or attempted

use of deadly force. See Werner v. State, 711 S.W.2d 639, 645–46 (Tex. Crim. App.

1986) (concluding that trial court did not err in excluding expert testimony of

psychiatrist who would have testified that defendant, who was child of Holocaust

survivor, was affected by Holocaust Survivor Syndrome when he shot complainant

because evidence “only tended to show that possibly [defendant] was not an ordinary

and prudent man with respect to self-defense” and defendant was not entitled “to an

enlargement of the statutory defense on account of his psychological peculiarities”);

Echavarria, 362 S.W.3d at 154 (holding that expert testimony concerning how

trained Marine identifies and reacts to threats was properly excluded because “[h]ow

a trained Marine instinctively reacts to a perceived threat is not relevant to the issue

of whether an ordinary and prudent man,” viewing circumstances from defendant’s

viewpoint, would have formed reasonable belief that deadly force was immediately

necessary).

Furthermore, the trial court did not err to the extent that it determined that Dr.

Brams’s testimony was not admissible under article 38.36(a). Courts have repeatedly

held that expert testimony concerning a defendant’s state of mind at the time of the

offense is inadmissible. See Fairow, 943 S.W.2d at 899; Jackson, 548 S.W.2d at

692–93; Avila, 954 S.W.2d at 839, 841; Osby, 939 S.W.2d at 791. Although article

38.36(b) permits expert testimony regarding the condition of the defendant’s mind

32 relating to family violence in murder prosecutions in which a justification defense—

such as self-defense—is raised, it is undisputed that this case does not involve family

violence. Our sister courts have held that in murder prosecutions that do not involve

family violence, article 38.36 does not permit expert testimony concerning the

defendant’s state of mind at the time of the offense. See Avila, 954 S.W.2d at 841;

Osby, 939 S.W.2d at 791.

Additionally, although the Court of Criminal Appeals has allowed admission

of expert testimony, including evidence of a defendant’s history with mental illness,

when it negates the mens rea element of the charged offense, see, e.g., Ruffin, 270

S.W.3d at 587–88, nothing in Dr. Brams’s testimony negates the mens rea elements

of the charged offenses of capital murder and murder. At most, Dr. Brams’s

testimony explains why Appellant perceived the complainants to be a threat to him.

Her testimony does not “directly rebut” the culpable mental states for the charged

offenses. See Mays, 318 S.W.3d at 381 (“All of [the defendant’s] mental-illness

evidence showed why he intentionally and knowingly killed the deputies: He was

paranoid and thought they had ‘mistreated’ him. But motive is not an element of

murder or capital murder. Such mental-illness testimony may be relevant for

mitigation purposes during the punishment phase, but expert testimony that does not

directly rebut the culpable mental state usually may be excluded at the guilt stage.”).

33 We conclude that the trial court’s decision to exclude Dr. Brams’s testimony

during the guilt-innocence phase of trial was not outside the “zone of reasonable

disagreement.” See Beham, 559 S.W.3d at 478; see also Echavarria, 362 S.W.3d at

154 (concluding that trial court’s decision to exclude expert testimony concerning

how trained Marines react to perceived threats was not outside zone of reasonable

disagreement); Avila, 954 S.W.2d at 841 (concluding that trial court properly

excluded expert testimony concerning defendant’s training with handguns and effect

of this training on defendant’s mental state in committing offense). We hold that the

trial court did not abuse its discretion in excluding this testimony.

We overrule Appellant’s second issue.

Mistake of Fact Instruction

In his third issue, Appellant argues that the trial court erred by denying his

requested jury instruction on the defense of mistake of fact. Specifically, Appellant

requested an instruction that the jury should acquit him if it believed, or had a

reasonable doubt, that Appellant “acted under a mistake of fact, that is, a reasonable

belief that he was mistaken that deadly force was immediately necessary to protect

himself against” the complainants.

The first step in analyzing a jury charge issue is to determine whether error in

the charge exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we

34 find that error occurred, we then analyze that error for harm. Id. When, as here, the

defendant timely objected at trial to the error, we will reverse upon a showing of

“some harm” to the defendant. Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim.

App. 2019). “This means that ‘the presence of any harm, regardless of degree, . . . is

sufficient to require a reversal.’” Id. (quoting Arline v. State, 721 S.W.2d 348, 351

(Tex. Crim. App. 1986)). The defendant must have suffered some actual—as

opposed to merely theoretical—harm. Id.; see Jordan v. State, 593 S.W.3d 340, 347

(Tex. Crim. App. 2020) (“‘Some harm’ means actual harm and not merely a

theoretical complaint.”); French v. State, 563 S.W.3d 228, 239 (Tex. Crim. App.

2018) (“[W]here a record reveals a risk of harm that is so small that it may properly

be characterized as not remotely significant, or where the risk of harm is almost

infinitesimal, any harm resulting from the error is only theoretical harm.”) (internal

quotations omitted). Reversal is required if the error was calculated to injure the

rights of the defendant. Jordan, 593 S.W.3d at 347. When assessing harm, we

evaluate the entire record, including the jury charge, contested issues, weight of the

probative evidence, arguments of counsel, and other relevant information. Id.

The trial court shall deliver to the jury “a written charge distinctly setting forth

the law applicable to the case.” TEX. CODE CRIM. PROC. art. 36.14. A defendant is

entitled to an instruction on any defensive issue that is raised by the evidence,

regardless of the strength or credibility of the evidence. Jordan, 593 S.W.3d at 343;

35 Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008) (“The appellant is, of

course, entitled to an instruction on every defensive issue raised by the evidence,

‘whether that evidence is weak or strong, unimpeached or uncontradicted, and

regardless of what the trial court may or may not think about the credibility of the

defense.’”) (quoting Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996)).

A defensive issue is raised by the evidence if there is sufficient evidence to

support a rational jury finding on each element of the defense. Jordan, 593 S.W.3d

at 343; Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007) (stating that

defense is raised by evidence “if there is some evidence, from any source, on each

element of the defense that, if believed by the jury, would support a rational

inference that that element is true”). We view the evidence in the light most favorable

to the defendant’s requested instruction. Jordan, 593 S.W.3d at 343.

It is a defense to prosecution that the defendant, through mistake, formed a

reasonable belief about a matter of fact if his mistaken belief negated the kind of

culpability required for commission of the offense. TEX. PENAL CODE § 8.02(a);

Flores v. State, 573 S.W.3d 864, 868 (Tex. App.—Houston [1st Dist.] 2019, pet.

ref’d). “By ‘kind of culpability’ is meant ‘culpable mental state.’” Celis v. State, 416

S.W.3d 419, 430 (Tex. Crim. App. 2013); Flores, 573 S.W.3d at 868 (“‘Kind of

culpability’ refers to the mental state required for criminal responsibility.”). This

defense “turns on the mistaken belief of the defendant, not others, and considers the

36 conduct of others only to the extent that it contributes to the defendant’s belief.”

Flores, 573 S.W.3d at 868. A mistake about the existence of a fact which would

establish an affirmative defense to an offense, rather than negating an element of the

offense, does not raise the mistake-of-fact defense. Lugo v. State, 923 S.W.2d 598,

601 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).

If the evidence raises the defense of mistake of fact and the defendant requests

an instruction, the trial court must instruct the jury on this defense. Flores, 573

S.W.3d at 868; see Celis, 416 S.W.3d at 430 (“When he raises evidence of a

mistaken belief as to the culpable mental state of the offense, a defendant is entitled

to an instruction on mistake of fact upon request.”). The reasonableness of the

defendant’s mistaken belief is a question for the jury. Flores, 573 S.W.3d at 868.

However, if the evidence, when viewed in the light most favorable to the defendant,

does not establish a mistake-of-fact defense, an instruction is not required. Id.

B. Entitlement to Mistake of Fact Instruction

At the charge conference, the trial court agreed that the evidence raised the

issue of self-defense and included instructions on self-defense and the use of deadly

force in the jury charge.5 See TEX. PENAL CODE § 9.31(a) (“[A] person is justified in

5 The jury charge also included instructions on the defense of necessity. See TEX. PENAL CODE § 9.22 (providing that conduct is justified if (1) actor reasonably believes conduct is immediately necessary to avoid imminent harm; (2) desirability and urgency of avoiding harm clearly outweigh, according to ordinary standards of reasonableness, harm sought to be prevented by law proscribing conduct; and

37 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.”), § 9.32(a) (providing that person is justified in

using deadly force against another if actor would be justified in using force and actor

reasonably believes deadly force is immediately necessary to protect against other’s

use or attempted use of unlawful deadly force).

Appellant also requested the following instruction on the defense of mistake

of fact:

You are instructed that as a defense to prosecution a person through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense. Reasonable belief means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.

So if you find from the evidence in this case that at the time the defendant, LaMelvin DeWayne Johnson, if he acted under a mistake of fact, that is, a reasonable belief that he was mistaken that deadly force was immediately necessary to protect himself against Johnny Simmons’s, Harvey Simmons’s, or Donntay Borom’s use of deadly force or if you have a reasonable doubt thereof, you will acquit the defendant.

If you find from the evidence beyond a reasonable doubt that at the time and place in question, the defendant did not reasonably believe that he was mistaken that deadly force was immediately necessary to protect himself against Johnny Simmons’s, Harvey Simmons’s, or Donntay

(3) legislative purpose to exclude justification claimed for conduct does not otherwise plainly appear). Additionally, the trial court instructed the jury on the lesser-included offenses of murder and manslaughter. 38 Borom’s use of deadly force, then you must find against the defendant on the issue of mistake of fact.

The trial court refused to submit this requested instruction.

On appeal, Appellant points to his testimony that he was scared and thought

that his life was being threatened when he shot Harvey, Johnny, and Donntay. He

argues, “This is some evidence that, if believed, could be considered a mistake of

fact which negated [his] culpability.” However, Appellant does not dispute that he

shot Harvey, Johnny, and Donntay. His belief that Harvey, Johnny, and Donntay

were threatening his life, whether mistaken or not, relates to the defense of self-

defense, not to the elements of the underlying offenses of murder and capital murder.

Even if we assume that Appellant correctly believed that Harvey, Johnny, and

Donntay were threatening his life, this evidence does not negate the culpable mental

states required for the offenses of capital murder and murder. Instead, this evidence

is relevant to whether Appellant was justified using deadly force against Harvey,

Johnny, and Donntay—that is, whether he acted in self-defense based on a

reasonable belief that use of deadly force was immediately necessary to protect him

against the others’ use or attempted use of deadly force—a defense on which the

trial court instructed the jury in the charge. See id. §§ 9.31–.32. Because this alleged

mistake of fact does not negate the culpable mental state of the underlying offenses

but instead relates to proof of an affirmative defense, the evidence does not raise the

mistake-of-fact defense. See Lugo, 923 S.W.2d at 601; Bryan v. State, 814 S.W.2d 39 482, 483 (Tex. App.—Waco 1991, pet. ref’d) (“A mistake about the existence of a

fact which would establish an affirmative defense to an offense, rather than negating

an element of the offense, does not raise the mistake of fact defense.”).

We conclude that Appellant was not entitled to an instruction on the defense

of mistake of fact; therefore, the trial court did not err by refusing Appellant’s

requested instruction. See Lugo, 923 S.W.2d at 601.

We overrule Appellant’s third issue.

Conclusion

We affirm the judgment of the trial court.

April L. Farris Justice

Panel consists of Justices Kelly, Guerra, and Farris.

Do Not Publish. TEX. R. APP. P. 47.2(b).