Opinion issued December 31, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00328-CR ——————————— LESTER FISHER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1695907
MEMORANDUM OPINION
Lester Fisher appeals his conviction for capital murder.1 Fisher raises three
issues: (1) there was insufficient evidence to support his conviction; (2) a mistrial
should have been granted because he did not get to cross-examine one of the State’s
1 See TEX. PENAL CODE § 19.03(a)(2). witnesses; and (3) the jury should have been instructed on defense of another.
Because there was sufficient evidence, the trial court had discretion to deny a
mistrial, and Fisher was not entitled to the requested jury instruction, we affirm.
Background
In the early morning of October 25, 2020, E. Sparrow was parking his Buick
at an apartment complex. Lester Fisher and Terrance Ballet, Jr., “T.J.,” were waiting
nearby. They were armed and looking to “hit a lick,” a slang term for robbery.2 T.J.
approached Sparrow’s Buick, and soon after there was a shootout between Fisher
and T.J. and the occupants of the Buick. Fisher and T.J. fled.
Lieutenant P. Bruce of the Harris County Sherriff’s Office responded to calls
about a shooting. Lt. Bruce was the first to arrive on scene and found Sparrow laying
on the ground. Sparrow had ten gunshot wounds and died shortly after EMS arrived.
Two other deputies arrived later and began identifying and interviewing witnesses.
Lt. Bruce and another deputy headed to the front of the complex, where they noticed
a heavy trail of blood. They followed the trail up to the front gate and saw a large
pool of blood. Near the outside of the gate, the deputy found T.J.’s body with a bullet
wound that penetrated his femoral artery and a handgun.
2 Investigator J. Viramontes testified that “hit a lick” was a common phrase meaning to commit a robbery. Cf. Lewis v. State, 448 S.W.3d 138, 145 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (recognizing hitting a lick as a euphemism for robbery or burglary). 2 Investigator M. McElvany, with the Crime Scene Unit of the Harris County
Sheriff’s Office, was assigned as the lead investigator. Two other CSU investigators
assisted McElvany—Investigators Culp and Henneke. Investigator Culp collected
blood samples, and Investigator Henneke collected other evidence and created a
scene video. Deputy J. Reinert gathered the surveillance footage of the apartment
complex. Deputy D. Crain also assisted with the investigation along with Deputy J.
Viramontes. Deputy Crain went to the hospital for information about Sparrow’s
body. He noted that Sparrow was deceased and had multiple gunshot wounds to his
torso and one to his right leg.
A. Stewart testified that she was dating and living with T.J. at the time.
T. Batiste, T.J.’s cousin, also lived with them. The evening before the shootout,
Stewart had picked up T.J. and gone home, but soon after T.J. went out again. In the
early hours of the day of the shootout, Batiste called Stewart and told her that
something had happened to T.J. Batiste went to meet Stewart, and then Stewart drove
them to the scene. By the time they arrived, police were there, and they could not
find T.J. A police officer followed them as they left and spoke to them when they
stopped at a gas station. During the officer’s questioning, Stewart learned that T.J.
had been killed.
Later that day, Stewart spoke to a man she knew as “Red.” Stewart had never
met or spoken to Red before. Red told her that “T.J. was trying to hit a lick and it
3 went bad.” Red explained that he was at the apartment complex when the shootout
happened but had not been a part of it. Red said that “T.J. went up to [a] car and tried
to open the door, and . . . the person in the car . . . shot T.J.” Red did not say whether
he or T.J. were armed, but Stewart assumed Red was after she learned someone else
had been shot at the scene. Stewart had no further contact with Red or Batiste.
T.J.’s father testified that on October 25, 2020, Batiste called him. Based on
what he learned from that call, he went to Houston with his wife. They drove directly
to the scene and spoke with detectives. He also spoke with a person he later learned
was Fisher. He was told that Batiste was “selling cat” in Houston, which he knew
meant engaging in prostitution. Fisher also said that T.J. was “making bad moves,”
and that he was with T.J. when T.J. was hitting a lick. Fisher explained that he helped
T.J. after he was shot, and he made sure that the people involved in T.J.’s death were
“taken care of.” T.J.’s father believed that if T.J. was robbing someone, T.J. would
have had a gun with him. Based on what Fisher told him, T.J.’s father believed that
Batiste set T.J. up. He also believed that someone in the Buick shot T.J., and then
Fisher shot that man to help T.J.
In January 2021, Fisher was indicted for capital murder for the murder of
Sparrow. He pleaded not guilty. After a trial, the jury found him guilty, and he was
sentenced to life imprisonment without parole. This appeal followed.
4 Sufficiency of the Evidence
Fisher contends that the evidence cannot support his conviction if the jury
followed the trial judge’s instruction not to consider Batiste’s testimony. Fisher
specifically argues that there was insufficient evidence to show that he was
committing or attempting to rob Sparrow or that he intended to cause Sparrow’s
death. The State argues that Fisher’s statements, surveillance footage, and the
physical and medical evidence from the shooting support the conviction.
A. Standard of Review
We review the legal sufficiency of the evidence by considering all the
evidence, in the light most favorable to the jury’s verdict, to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We defer to the factfinder to
fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences
from the facts. Williams, 235 S.W.3d at 750. Our role is that of a due process
safeguard, and we consider only whether the factfinder reached a rational decision.
See Malbrough v. State, 612 S.W.3d 537, 559 (Tex. App.—Houston [1st Dist.] 2020,
pet. ref’d); see also Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016)
(reviewing court’s role “is restricted to guarding against the rare occurrence when a
fact finder does not act rationally”).
5 “In reviewing the legal sufficiency of the evidence, a court must consider both
direct and circumstantial evidence, and any reasonable inferences that may be drawn
from the evidence.” Malbrough, 612 S.W.3d at 559; see also Wise v. State, 364
S.W.3d 900, 903 (Tex. Crim. App. 2012). Circumstantial and direct evidence are
equally probative in proving the defendant’s guilt, and circumstantial evidence alone
can be enough. Malbrough, 612 S.W.3d at 559. “For evidence to be sufficient, the
State need not disprove all reasonable alternative hypotheses that are inconsistent
with a defendant’s guilt.” Id. The appellate court “considers only whether the
inferences necessary to establish guilt are reasonable based on the cumulative force
of all the evidence when considered in the light most favorable to the jury’s verdict.”
Id. We review factual sufficiency of the evidence under the same standard of review
as legal sufficiency. See Edwards v. State, 497 S.W.3d 147, 156–57 (Tex. App.—
Houston [1st Dist.] 2016, pet. ref’d).
B. Analysis
A person commits capital murder if he “intentionally or knowingly causes the
death of an individual” and “intentionally commits the murder in the course of
committing or attempting to commit . . . robbery.” TEX. PENAL CODE
§§ 19.02(b)(1), .03(a)(2). A person commits robbery “if, in the course of committing
theft . . . and with intent to obtain or maintain control of the property,
he . . . intentionally or knowingly threatens or places another in fear of imminent
6 bodily injury or death.” Id. § 29.02(a)(2). A person commits theft if he “unlawfully
appropriates property with intent to deprive the owner of property.” Id. § 31.03(a).
The State alleged that Fisher committed capital murder by shooting Sparrow with a
firearm while committing or attempting to commit robbery.
Direct evidence of the elements of the offense, including the identity of the
perpetrator and a culpable mental state, is not required. Hooper v. State, 214 S.W.3d
9, 14 (Tex. Crim. App. 2007). The jury may infer intent from any evidence that it
believes proves that intent. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App.
2003). This includes a person’s acts, words, and conduct, as well as the use of a
deadly weapon. Galvan-Cerna v. State, 509 S.W.3d 398, 404 (Tex. App.—Houston
[1st Dist.] 2014, no pet.). A handgun is a deadly weapon per se. TEX. PENAL CODE
§ 1.07(a)(17)(A). “A person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of another for which he is
criminally responsible, or both.” Id. § 7.01(a).
The trial court instructed the jury on the law of parties under Penal Code
Section 7.02(a)(2) and the law of conspiracy under Penal Code Section 7.02(b). See
id. § 7.02(a)(2), (b). “A person is criminally responsible for an offense committed
by the conduct of another if, . . . acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid
the other person to commit the offense.” See id. § 7.02(a). If, in the attempt to carry
7 out a conspiracy to commit one felony, like robbery, another felony, like capital
murder, is committed by one of the conspirators, all conspirators are guilty of the
capital murder actually committed, even if they had no intent to commit it, if the
offense was committed in furtherance of the unlawful purpose and was one that
should have been anticipated as a result of the carrying out of the conspiracy. See id.
§ 7.02(b).
The evidence shows that a black Jeep entered the apartment complex at 4:17
a.m. and traveled to Building 8, where it dropped people off before leaving at 4:21
a.m. At the same time, Sparrow’s gold Buick entered the complex. Two individuals
can be seen leaving Building 8 and heading to Building 16’s parking lot, where the
Buick was located. Shortly after, the surveillance footage captured a barrage of
gunfire aimed in the Buick’s direction.
The jury also heard three audio recordings of T.J.’s father talking to Fisher
about the incident. In the longest audio recording, Fisher admits that he took part in
the “lick” as T.J.’s partner, that he was not going to let any of the people who shot
T.J. leave, that he “took care of them” and “laid [them] out,” and that neither of those
people made it out because they got “worked” by a .40-caliber handgun. Fisher also
told T.J.’s father that he got rid of his phone that had messages between him and T.J.
Stewart testified that Fisher told her that he and T.J. were trying to hit a lick,
but it went bad, and T.J. did not make it. Fisher told Stewart that T.J. had gone up to
8 the vehicle and tried to open the vehicle’s door before the person inside lowered the
window and shot T.J. Stewart also said that Fisher shot another person.
The police found two types of cartridge casings at the scene—nine-millimeter
casings near the Buick in the parking lot and .40-caliber casings in the grassy area
behind the Buick. No other caliber of cartridges was found. A nine-millimeter
handgun was found next to T.J.’s body. No weapon was found near Sparrow.
Bullet strikes, fragments, and projectiles were found in and around the Buick
and the surrounding vehicles. A bullet strike and projectile were found in an
apartment west of the parking lot. Deputy McElvany testified the casings and bullet
strikes were consistent with shots coming from behind or in front of the vehicle.
Inside Stewart’s apartment, there was a plastic bag with seven cartridge cases,
another nine-millimeter cartridge, and a loaded 12-round Glock .40-caliber pistol
magazine.
Dr. N. Barna, the medical examiner who autopsied Sparrow, testified that
Sparrow’s injuries were consistent with being caused by a firearm and that he could
not have survived the ten gunshot wounds on his body. Based on his analysis, Dr.
Barna determined that one was a contact wound (within a few inches), two were
done at close range (closer than two or three feet), three from intermediate range
(about two to three feet away), and four from an undetermined range.
9 Dr. R. Pipkin, a firearms examiner with the Harris County Institute of Forensic
Sciences, testified that the five nine-millimeter cartridge cases tested came from the
handgun found near T.J. She also testified that an unknown firearm fired the six
.40-caliber cartridge cases found at the scene. There was also a bullet and bullet
fragments that could not be identified as having been fired by either gun but could
not have been fired by the nine-millimeter handgun found near T.J. Additionally,
there were at least two more firearms at the scene beside the nine-millimeter
handgun.
Viewing the evidence in the light most favorable to the conviction, the
evidence is sufficient to find that Fisher intended to kill Sparrow. A culpable mental
state is generally inferred from the circumstances. Nisbett v. State, 552 S.W.3d 244,
267 (Tex. Crim. App. 2018). We infer his mental state from his “acts, words and
conduct.” Galvan-Cerna, 509 S.W.3d at 404. Fisher admitted he was not going to
let the people inside the Buick leave and that he “took care” of them, explaining that
he “laid [them] out” and they got “worked” by a .40-caliber handgun. The jury could
infer specific intent to kill from the use of a deadly weapon, the number of gunshot
wounds, and the extent of the injuries. See Nisbett, 552 S.W.3d at 267 (mental state
may be inferred from victim’s injuries); Motilla v. State, 78 S.W.3d 352, 359 (Tex.
Crim. App. 2002) (decision to fire multiple times is evidence of intent to kill); Felder
v. State, 848 S.W.2d 85, 90 (Tex. Crim. App. 1992) (intent to fatally harm apparent
10 from number and location of wounds); Hollins v. State, No. 01-14-00744-CR, 2015
WL 5076298, at *4 (Tex. App.—Houston [1st Dist.] Aug. 27, 2015, pet. ref’d)
(mem. op., not designated for publication) (jury may infer intent to kill from use of
deadly weapon). Fisher’s mental state can also be inferred from his admission that
he got rid of the phone that contained messages between him and T.J. See Nisbett,
552 S.W.3d at 267 (jury may infer mental state from circumstances); Galvan-Cerna,
509 S.W.3d at 404 (inferring mental state from “words, acts and conduct”).
Contrary to Fisher’s suggestion, the State did not have to prove that Fisher
completed the robbery; the jury could infer the intent to rob from the circumstantial
evidence. Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1994) (State
must only show that intent to commit robbery was formed before or at same time as
murder). So we are only to determine whether any rational factfinder could find
beyond a reasonable doubt from the evidence that Fisher formed the intent to take
Sparrow’s property before or at the time of his murder. See id.
Investigator Viramontes testified that “hit a lick” means to commit a robbery.
Fisher admitted having hit “licks” with T.J. before and described himself as T.J.’s
partner when doing so. When he talked to T.J.’s father, Fisher explained that he and
T.J. were not supposed to “hit the lick” until another person returned to the apartment
complex because that person had a car. Stewart also testified that Red told her that
“T.J. was trying to hit a lick and it went bad.”
11 Fisher argues that without Batiste’s testimony, none of his conversation with
T.J.’s father makes sense. We disagree. It is clear from Fisher’s call with T.J.’s father
that they were discussing the robbery during which T.J. and Sparrow died. T.J.’s
father had called Fisher wanting closure about what happened to T.J. This is why
Fisher explained that he was hitting a lick with T.J. and that it had gone wrong.
It was the jury’s responsibility to assess the credibility of the witnesses and
weigh the evidence. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d). In doing so, the jury was free to disbelieve any the
evidence. See id. Viewing the evidence in the light most favorable to the verdict, the
jury could have rationally inferred that Fisher decided to rob Sparrow either before
or during the murder. See Lewis v. State, 448 S.W.3d 138, 145 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d); Baimba v. State, No. 01-19-00178-CR, 2020 WL
7250330, at *3 (Tex. App.—Houston [1st Dist.] Dec. 10, 2020, no pet.) (mem. op.,
not designated for publication).
We therefore hold that the State presented sufficient evidence from which a
rational jury could conclude, beyond a reasonable doubt, that Fisher intended to kill
Sparrow while committing robbery and thus committed capital murder. See TEX.
PENAL CODE § 19.03(a)(2).
We overrule Fisher’s second issue.
12 Denial of Mistrial
Fisher contends that the trial court erred by denying a mistrial when Batiste,
after a lengthy direct examination, invoked her Fifth Amendment right not to
incriminate herself after cross-examination began and the defense had asked her over
50 questions. Fisher argues that Batiste’s testimony was so damaging that it could
not be corrected with an instruction to disregard because there was no other evidence
implicating Fisher in Sparrow’s murder. The State argues that the prejudicial effect
of Batiste’s testimony was minimal because of the corrective measures taken by the
trial court along with the remaining evidence supporting the conviction.
“A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow
class of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884
(Tex. Crim. App. 2009). When the trial court sustains an objection and instructs the
jury to disregard the objected-to evidence but then denies a mistrial, the issue is
whether the trial court abused its discretion by denying the mistrial. Archie v. State,
340 S.W.3d 734, 738–39 (Tex. Crim. App. 2011) (citing Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004)). An appellate court views the evidence in
the light most favorable to the trial court’s ruling, considering only those arguments
before the trial court at the time of its ruling. Ocon, 284 S.W.3d at 884 (citing Wead
v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). The ruling must be upheld
13 if it was within the zone of reasonable disagreement. Id. Only in the extreme
circumstances where the prejudice is incurable is a mistrial required. Hawkins, 135
S.W.3d at 77; Ocon, 284 S.W.3d at 884–85.
Fisher argues that it was impossible for the jury to not consider Batiste’s
testimony implicating him in Sparrow’s murder. Batiste testified that she moved to
Houston in 2019 into an apartment with a man she knew as “K” and his girlfriend.
Sometimes T.J. stayed at the apartment. On the night of the incident, she was at the
apartment with T.J., K, and K’s girlfriend. They all went to eat at Waffle House and
then returned to the apartment. Batiste went inside and was followed by K, his
girlfriend, T.J., and Red. Batiste identified Red as Fisher. Batiste went to bed but
soon heard gunshots. When she went outside to see what was going on, she noticed
a body. She went back inside the apartment, ran to the balcony, and saw someone
jump a fence. Fisher then ran into the apartment and told her she needed to go find
T.J. because he had been shot. Fisher told her that they had gone to hit a lick but the
man that T.J. was talking to ended up shooting T.J., so Fisher then shot the passenger
and driver of the vehicle. Batiste then tried to get ahold of Stewart and was given a
ride by K and his girlfriend. Batiste rode with Stewart back to the apartment complex
to try to find T.J. After they could not locate T.J., they left and were followed by a
police officer to a nearby gas station. At the gas station, Batiste was questioned by
14 the police but disclose what she knew. Batiste and Stewart returned to Stewart’s
home where Batiste waited to be picked up by her mother. After realizing she left
her ID in K’s vehicle, Batiste, her mother, and her mother’s boyfriend met up with
K to retrieve it before heading straight to Batiste’s mother’s house in Louisiana.
Fisher specifically complains of being denied the opportunity to challenge
Batiste’s testimony that he and T.J. “went and hit a lick” when “a guy ended up
shooting T.J. in the leg” and then Fisher “ended up shooting the guy in the passenger
seat” and then going “back around and kill[ing] the driver.”
A mistrial is appropriate when the objectionable events are so emotionally
inflammatory that curative instructions are unlikely to prevent the jury from being
unfairly prejudiced against the defendant. See Young v. State, 137 S.W.3d 65, 71
(Tex. Crim. App. 2004); see also Ocon, 284 S.W.3d at 884 (“Whether an error
requires a mistrial must be determined by the particular facts of the case.”). When
determining whether the trial court abused its discretion in denying a mistrial, we
balance (1) the prejudicial effect, (2) the curative measures taken, and (3) the
strength of the evidence supporting the conviction. See Archie, 340 S.W.3d at 739
(referring to the Mosley factors from Mosley v. State, 983 S.W.2d 249 (Tex. Crim.
App. 1998) and extending them to evaluation of improper jury argument that
violated a defendant’s constitutional rights). The question is whether, balancing the
Mosley factors, the trial court abused its discretion by denying a mistrial.
15 The first Mosley factor looks at the magnitude of the prejudicial effect of
Batiste’s testimony. See Hawkins, 135 S.W.3d at 77 (prejudice is the touchstone of
the first factor). When a defendant is not allowed to fully cross-examine the State’s
witness, a possible Sixth Amendment violation occurs, since cross-examination is
“implicit within the right to confrontation.” Keller v. State, 662 S.W.2d 362, 364
(Tex. Crim. App. 1984); see also Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim.
App. 2000) (“A primary interest secured by the Confrontation Clause is the right of
cross-examination.”). Batiste testified that Fisher told her that he and T.J. went to
“hit a lick” and that after T.J. was shot, Fisher shot the Buick passenger and driver.
Batiste testified at the end of the second day of trial and was the last witness the jury
heard before adjourning that day. It was not until the next day, when Batiste
underwent further cross-examination, that she asserted her Fifth Amendment right,
and the trial court instructed the jury to disregard her testimony. Because the jury
heard direct evidence that Fisher admitted shooting two people in the Buick and
could consider that information until being instructed to the contrary at the end of
the next day, the effect was significant in severity and magnitude. See Walker v.
State, 610 S.W.2d 481, 484 n.6 (Tex. Crim. App. 1980) (citing Dunn v. United
States, 307 F.2d 883, 886 (5th Cir. 1962) (Gewin, J.) (“[O]ne cannot ‘unring a bell’;
‘after the thrust of the saber it is difficult to say forget the wound.’”)); see also
Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999) (describing witness’s
16 testimony about defendant’s confession as highly prejudicial). Thus, the importance
of Batiste’s testimony and the delay in instructing the jury to disregard it weighs in
favor of finding an abuse of discretion.
Under the second Mosley factor, we consider the curative measures taken. The
trial court instructed the jury to disregard all Batiste’s testimony. See Bryan v. State,
No. 02-19-00408-CR, 2021 WL 1685951, at *2 (Tex. App. —Fort Worth Apr. 29,
2021, no pet.) (mem. op., not designated for publication) (common remedy when
witness asserts their Fifth Amendment right on cross-examination is to strike
witness’s direct testimony and instruct jury to disregard it); Villegas v. State, 791
S.W.2d 226, 234 (Tex. App.—Corpus Christi 1990, pet. ref’d) (usual remedy when
State witness asserts Fifth Amendment right on cross-examination on matters
witness testified to on direct-examination is to strike witness’s direct testimony); see
also Gordillo v. State, No. 01-13-00477-CR, 2015 WL 730593, at *3 (Tex. App.—
Houston [1st Dist.] Feb. 19, 2015, no pet.) (mem. op., not designated for publication)
(citing Fountain v. United States, 384 F.2d 624, 628 (5th Cir. 1967) (when witness
asserts Fifth Amendment right against self-incrimination on cross-examination, that
witness’s direct testimony may be stricken)). The trial court also repeated the
instruction in the jury charge, directing the jurors “to disregard any and all testimony
of . . . Batiste . . . [and] not to consider it for any purpose during your deliberations.”
17 We must presume the jury follows the trial court’s instructions. Gonzalez v.
State, 522 S.W.3d 48, 64 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (citing
Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)). The presumption is
rebuttable, but Fisher must point to evidence that the jury failed to follow the trial
court’s instructions. Thrift, 176 S.W.3d at 224.
Fisher stresses that Batiste was referenced multiple times—after her testimony
was struck—during other witness testimony and the State’s closing argument. The
State asked the jury, “why does [Fisher] threaten [Batiste]? Because he knows in his
mind that she’s the only witness that can put him at the scene where this occurred.”
While the State was referring to the phone conversation between Fisher and T.J.’s
father, it highlights that Batiste was crucial to the case against Fisher. Fisher asserts
that the repeated evocation of Batiste led the jury to consider her stricken testimony.
But Fisher’s only evidence that the jury considered Batiste’s testimony is that he was
convicted of capital murder, which he asserts was unsupported by the evidence
absent Batiste’s testimony. As discussed above, we disagree. Because this is the only
evidence Fisher has raised, we cannot agree that the presumption has been rebutted.
See Jones v. State, 264 S.W.3d 26, 30 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied) (citing Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)
(presuming jury followed trial court’s instruction after not moving for new trial
18 alleging juror misconduct, nor obtaining a hearing to adduce facts not in the record).
This weighs against finding an abuse of discretion.
Under the third Mosley factor, we consider the strength of the evidence
supporting the conviction. The jury heard the conversation between Fisher and T.J.’s
father wherein Fisher admitted that he “took care” of the people inside the Buick,
explaining they were “laid out” and got “worked” by a .40-caliber handgun. The jury
also heard Stewart’s testimony that “Red” told her he was with T.J. trying to hit a
lick that night, but it went bad. We find the evidence that remained absent Batiste’s
testimony compelling. Even if the jury doubted that Red was the same person as
Fisher or that Fisher was honest with T.J.’s father, the jury could have weighed the
testimony and believed some but not all of the conversation between Fisher and
T.J.’s father. See Archie, 340 S.W.3d at 742; see also Williams, 235 S.W.3d at 750
(jury gets to resolve conflicts in testimony, weigh the evidence, and draw reasonable
inferences). This weighs against finding an abuse of discretion.
While Batiste’s testimony was highly prejudicial, there was no evidence that
the jury disobeyed the trial court’s instructions to disregard the testimony. And
Batiste’s testimony was not the only evidence that Fisher killed the Buick’s
occupants—Fisher himself alluded to this multiple times in his conversation with
T.J.’s father. Therefore, we hold that the trial court had discretion to deny the motion
for mistrial. See Archie, 340 S.W.3d at 742.
19 We overrule Fisher’s first issue.
Jury Instruction on Defense
Fisher contends that he was entitled to a jury instruction on defense of another
because the evidence showed that he was defending T.J. after T.J. was shot. The
State argues that Fisher was not entitled to such an instruction because the use of
force was not justified.
We review the trial court’s decision denying a request for a defensive
instruction for an abuse of discretion, viewing the evidence in the light most
favorable to the defendant’s requested submission. Gamino v. State, 537 S.W.3d
507, 510 (Tex. Crim. App. 2017). Our review of jury charge error is a two-step
process, first considering whether error exists, and if it does, then considering
whether there was harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
The degree of harm necessary for reversal depends on whether the defendant
preserved error by objection. Id. Jury charge error requires reversal when the
defendant has properly objected to the charge and the reviewing court finds some
harm to his rights. Id.; see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1994) (op. on reh’g). The record must show actual harm and not just a theoretical
complaint. Cornet v. State, 417 S.W.3d 446, 450 (Tex. Crim. App. 2013). The “some
20 harm” standard means “that any harm, regardless of degree, is sufficient to require
reversal.” Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007).
The trial court must deliver a written charge setting forth the law that applies
to the case. TEX. CODE CRIM. PROC. art. 36.14. A defendant is entitled to a jury
instruction on a defensive issue if the issue is raised by the evidence, whether that
evidence is strong or weak, unimpeached or contradicted, and no matter what the
trial court may think about the credibility of the defense. Ferrel v. State, 55 S.W.3d
586, 591 (Tex. Crim. App. 2001). “Raised by the evidence” means “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 th[e] element is true.” Shaw v. State,
243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007).
Section 9.33 of the Penal Code provides that a person is justified in using force
against another to protect a third person if:
(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified . . . in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and
(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.
21 TEX. PENAL CODE § 9.33. But when the evidence establishes as a matter of law that
force is not justified in self-defense, no instruction is required. Coble v. State, 871
S.W.2d 192, 202 (Tex. Crim. App. 1993).
Fisher was charged with capital murder where robbery was an element. TEX.
PENAL CODE § 19.03(a)(2). To consider an instruction on self-defense, the jury
would have to find that Fisher or T.J. were committing a robbery. So a self-defense
instruction was unwarranted. Toliver v. State, No. 01-87-00591-CR, 1988 WL
15126, at *1 (Tex. App.—Houston [1st Dist.] Feb. 25, 1988, pet. ref’d) (not
designated for publication) (“[A] robber has no right of self-defense against his
intended victim.”). Although a defendant is entitled to an instruction on any
defensive matter raised by the evidence, a defendant may not claim self-defense in
a robbery cas. Evans v. State, 601 S.W.2d 943, 946 (Tex. Crim. App. 1980); Davis
v. State, 597 S.W.2d 358, 360 (Tex. Crim. App. 1980). Therefore, the trial court did
not abuse its discretion in denying Fisher’s requested jury instruction.
We overrule Fisher’s third issue.
22 Conclusion
We affirm the trial court’s judgment.
Sarah Beth Landau Justice
Panel consists of Justices Landau, Countiss, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).