AFFIRMED and Opinion Filed August 21, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00790-CR
RONALD ANTHONY ELLIOTT, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F20-76874-T
MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Goldstein Opinion by Justice Goldstein Ronald Anthony Elliott appeals his murder conviction. A jury convicted
appellant and sentenced him to sixty years’ confinement. In six issues, appellant
argues the State failed to disprove that he acted in self-defense, the trial court erred
by failing to limit the culpable mental state in the jury charge and not submitting a
jury charge on apparent danger, he was harmed by cumulative error in the jury
charge, and the trial court abused its discretion in not allowing him to question a
detective about appellant’s statements to police and not allowing appellant to testify
about his statements to police. We affirm the trial court’s judgment. BACKGROUND
In December 2020, appellant was charged by indictment with murder.
Specifically, the indictment alleged that, on or about November 1, 2020, appellant
(1) intentionally and knowingly caused the death of Patrick Richardson by shooting
him with a firearm and (2) further intended to cause serious bodily injury to
Richardson and committed an act clearly dangerous to human life by shooting
Richardson with a firearm, a deadly weapon, and thereby caused the death of
Richardson.1
At trial in July 2022, the State called nine witnesses in its case in chief, and
appellant testified as the defense’s only witness during the guilt innocence phase of
the trial.
1. Eye Witness: Derrick McWilliams
Derrick McWilliams testified that he owns Huge Guyz Kitchen, a restaurant
in Dallas. McWilliams was “mostly in the back” of the restaurant, and he had two
women, Jasmine Rogers and Markeidria Alberty, working “out front.” On
November 1, 2020, the restaurant did not open until approximately 1:30 p.m. even
though it normally opened at noon. People were waiting in line outside the restaurant
before it opened. Alberty was “making the plates” and McWilliams was “taking the
money and bagging up the food.”
1 The indictment thus charged appellant with murder under both alternatives provided by section 19.02(b) of the penal code. See TEX. PENAL CODE § 19.02(b)(1)–(2). –2– “A guy walked in.” McWilliams heard somebody say “What you . . . lookin
at?” McWilliams said, “Not up in here,” and did not pay any more attention until he
had finished “bagging up, like, two or three more customers” and saw “that he got
surrounded.” McWilliams “came from behind the counter, and that’s when the
shooting started.” McWilliams saw “a guy with dreads start shooting,” and then
McWilliams “fell back and everybody started running out.” McWilliams identified
appellant as the “guy with dreads.” McWilliams’ restaurant had video cameras
capable of recording, and the State played a video of events on the day of the
shooting while McWilliams testified as to what was depicted. The video showed
appellant, Alton Keaton, William Davis, Madarius Counter, and another man enter
the restaurant. About fifteen minutes later, the decedent, Richardson, entered the
restaurant. McWilliams testified and, after watching the video from inside the
restaurant, confirmed appellant shooting and established that he did not see
Richardson “grab a gun or pull a gun or have anything in his hands at all.”2 Shortly
thereafter, appellant ran out of the restaurant, and his companions followed.
Richardson also came out of the restaurant and fell down.
2. Eyewitness: Markeidria Alberty
Alberty testified she knew Richardson since she was fifteen years old, and
Richardson was friends with her “baby daddy,” McKendrick Taylor. Alberty did
2 On cross-examination, McWilliams confirmed that he “he didn’t see Mr. Richardson with a gun” but also stated that he didn’t “know whether he had a gun or not.” –3– not have “a personal relationship” with appellant, but she knew him by his nickname,
“Pickles.” On November 1, 2020, the restaurant was “pretty hectic,” and customers
were waiting in line for food. Richardson walked in to the restaurant “with a smile
on his face saying he was ready to eat,” talking to Alberty from a distance. The
customers in the restaurant were “making small talk” while they waited on the food,
but it “started to be, like, a loud commotion.” When McWilliams said “not in here,”
Richardson put his hands up and said, “I don’t want no smoke, Big Homie. I don’t
want no problem. I just want to get my plate.” Appellant “reached, like, somewhere
from the side and he got a gun and he started shooting repeatedly” at Richardson and
appellant’s friends.
In response to step-by-step questioning in conjunction with the playing of a
video by the prosecutor, Alberty testified Richardson kept his hands on his belly and
not to his sides. When asked whether Richardson said “Pull yours before I pull
mine,” Alberty testified “He didn’t have one to pull.” Richardson’s “body started to
move” toward the door, and appellant’s hand “went from being on his side now to
up a little bit.” Richardson was “clearly trying to get towards the door,” and
appellant started shooting while Richardson was trying “to run out the door.” Once
Richardson was no longer in the restaurant, appellant continued to shoot at
Richardson as Richardson was running away. When Richardson fell down outside,
appellant was “still chasing him.”
–4– When the shooting started, Alberty initially ducked down but then got up and
ran out the back door. Alberty walked to the side of the building to see what was
going on, and she saw Richardson alone on the ground. Alberty ran over to
Richardson, who had his cell phone and keys in his hand. Richardson gave Alberty
“his stuff” and told Alberty to lock his car door. Richardson tried to get up but went
into shock, “started foaming at the mouth and then it was done.” Alberty waited for
the ambulance and police to arrive, drove Richardson’s car to the hospital and gave
the car to Richardson’s friends.
While Alberty was driving away in Richardson’s car, appellant called Alberty
on Facebook messenger and asked “if there were cameras inside” the restaurant.
Alberty said there were cameras, and appellant said he was going to turn himself in.
Appellant sounded “paranoid” during the call.
3. Appellant’s testimony
Appellant testified that, on November 1, 2020, Richardson was out on bond
for the murder of Brandon Fisher, a friend of appellant’s. Appellant “knew”
Richardson was a drug dealer who was “known to carry weapons.” During an
incident at a strip club in 2018, Richardson confronted Fisher “about some theft or
robbery at one of his houses.” Richardson said to Fisher, “Make your move before
I make mine.” When Richardson left the club, appellant was “concerned” for Fisher,
but Fisher declined appellant’s offer to walk to the car with him. After Fisher left
the club with his girlfriend, “they yelled on the loudspeaker, ‘Pickle, [Richardson]
–5– just shot your friend in the head.’” Appellant went outside and saw Fisher lying on
the ground with a gunshot wound to the head.
Before November 1, 2020, appellant had never seen Richardson at Huge Guyz
Kitchen, but appellant had come into contact with Richardson “three or four times.”
Richardson had called appellant and others “snitches” because they were going to
testify about Richardson murdering Fisher.
On the day of the shooting, appellant had a gun “for protection” because he
had been “robbed, like, a week before.” When appellant arrived at Huge Guyz
Kitchen, Richardson was not there. Appellant testified he and his companions were
not engaged in any criminal activity, were not gambling, and were “[j]ust there to
eat.” About thirty minutes after appellant arrived at the restaurant, Richardson
arrived and yelled, “What you . . . lookin at?” at Counter, one of appellant’s
companions. Counter went back to where Richardson was, and the two began
arguing. Things “escalate[d],” and Richardson said, “Go for your move before I go
mine.” Counter looked back at appellant “like he was scared,” and appellant “pulled
mine” before Richardson could “pull his” and “started shooting first.” Appellant
testified he believed Richardson had a weapon and was “fixing to pull something.”
Appellant, when asked “[o]r is he grabbing here (indicating) like he has a weapon?”
responded “Like he has a weapon” and confirmed he had “seen that” “[l]ike three
times” on the video. Appellant was concerned he would kill them like he killed
[Fisher]. Appellant saw “the print” through Richardson’s T-shirt, which appellant
–6– clarified was the shape of a gun. While appellant was shooting at Richardson,
appellant “felt” that Richardson was “[t]rying to reposition to get his gun” even
though he was running away and was “[r]unning to reposition.” Appellant “didn’t
even know he hit” Richardson, and appellant “just was shooting” with all the people
around and “shooting towards several of [his] friends.” Appellant fired his gun “10
times, 12 times” and hit Richardson eight times: five times in the back, two times in
the side, and once in the shoulder. When appellant saw Richardson running toward
a car lot next door, appellant testified Richardson was “still breathing” and “could
have turned around and started shooting.” In response to questioning, appellant
testified that, when Richardson fell and was “on the ground dying,” appellant was
“running away” because he did not know if anyone else was coming to help
Richardson.
Appellant denied calling Alberty and testified he called a detective after he
“had [his] uncle drive to the scene and get the card” with the detective’s number on
it. Appellant told the detective he was willing to give his statement and turn himself
in. On cross-examination, appellant admitted he shot and killed Richardson and
“committed an act clearly dangerous to human life by shooting [Richardson] and
murdering him that day.” At the conclusion of the evidence, the jury convicted
appellant of murder. This appeal followed.
–7– DISCUSSION
A. First Issue: Legal Sufficiency
In his first issue, appellant argues the evidence is legally insufficient to
support his murder conviction “in that the State failed to disprove appellant’s
justification of self-defense.”
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the 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, 319 (1979); Brooks v. State, 323 S.W.3d
893, 899 (Tex. Crim. App. 2010) (plurality op.).
The factfinder is the sole judge of witness credibility and the weight to be
given testimony. See Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021).
We may not re-evaluate the weight and credibility of the evidence or substitute our
judgment for that of the factfinder. Bohannan v. State, 546 S.W.3d 166, 178 (Tex.
Crim. App. 2017). “When the record supports conflicting inferences, we presume
that the factfinder resolved the conflicts in favor of the verdict, and we defer to that
determination.” Murray v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015).
We measure the evidence by the elements of the offense as defined by the
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997). This standard recognizes the trier of fact as the sole judge of the weight
and credibility of the evidence after drawing reasonable inferences from the
–8– evidence, and on review, we determine whether the necessary inferences made by
the trier of fact are reasonable, based upon the cumulative force of all of the
evidence. Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011).
When it comes to sufficiency review of a self-defense claim, the court of
criminal appeals has stated the following:
[I]n a claim of self-defense or defense of third persons that would justify a defendant’s use of force against another, the defendant bears the burden to produce evidence supporting the defense, while the State bears the burden of persuasion to disprove the raised issues. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991). The defendant’s burden of production requires him to adduce some evidence that would support a rational finding in his favor on the defensive issue. Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013). By contrast, the State’s burden of persuasion “is not one that requires the production of evidence; rather it requires only that the State prove its case beyond a reasonable doubt.” Zuliani, 97 S.W.3d at 594 (citing Saxton, 804 S.W.2d at 913). Thus, “[i]n resolving the sufficiency of the evidence issue, we look not to whether the State presented evidence which refuted appellant’s self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.” Saxton, 804 S.W.2d at 914.
Braughton v. State, 569 S.W.3d 592, 608–09 (Tex. Crim. App. 2018).
A person commits murder if he (1) intentionally or knowingly causes the death
of an individual or (2) intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an individual. TEX. PENAL
CODE § 19.02(b)(1)–(2). However, it is a defense to prosecution that the conduct in
question is justified under Chapter 9 of the penal code. Id. § 9.02. A person is –9– justified in using force against another when and to the degree the actor reasonably
believes the force is immediately necessary to protect the actor against the other’s
use or attempted use of unlawful force. Id. § 9.31(a). A person is justified in using
deadly force against another if the actor would be justified in using force against the
other under section 9.31 and when and to the degree the actor reasonably believes
the deadly force is immediately necessary to protect the actor against the other’s use
or attempted use of unlawful deadly force. Id. § 9.32(a).
Appellant does not challenge the sufficiency of the evidence to show he shot
and killed Richardson; instead, he challenges the sufficiency of the evidence to
disprove his justification of self-defense. In making this challenge, appellant
assumes he has met his initial burden to adduce some evidence that would support a
rational finding in his favor on the defensive issue. Appellant relies on several
different evidentiary bases to support his assertions under this issue. First, appellant
knew that Richardson “was violent, carried a weapon and was a cold-blooded killer”
out on bond for the murder of Fisher. Second, when Richardson walked into the
restaurant, he engaged appellant and his companions “and was the aggressor,”
yelling “What you . . . lookin at?” at one of appellant’s companions and remaining
in the restaurant even though he could have left. Third, appellant saw “the print”
through Richardson’s T-shirt, which appellant clarified was the shape of a gun, and
Richardson said, “Go for your move before I go mine.” Fourth, appellant ran away
after the shooting because he did not know if anyone else was coming to help
–10– Richardson. Finally, appellant turned himself in voluntarily and gave a statement to
police. Appellant argues that this evidence corroborates his “testimony that
Richardson had a firearm and was reaching for it that day and that [appellant] acted
in self-defense and in defense of others.”
Appellant’s testimony is juxtaposed against other testimony and evidence
considered by the jury. McWilliams testified and video from inside the restaurant
showed that appellant was shooting and that Richardson did not “grab a gun or pull
a gun or have anything in his hands at all.” Alberty testified Richardson did not have
a gun to “pull.” Other than appellant’s testimony that he saw “the print,” there was
no evidence Richardson had a gun. Instead, the evidence showed Richardson was
not threatening appellant with a weapon but, according to Alberty, was “clearly
trying to get towards the door,” and appellant started shooting while Richardson was
trying “to run out the door.” No gun linked to Richardson was recovered from the
scene of the shooting.
Appellant argues further that Alberty was “not a credible witness” because
she was on probation for theft and had “about five different thefts.” Citing to the
fact that Alberty “tampered with evidence at the scene” by taking Richardson’s
property and car, appellant posits that Alberty or someone else that day took
Richardson’s firearm.” Justin O’Donnell, a Dallas police crime scene supervisor,
testified he recovered 9mm fired cartridge casings at the scene but also found a single
.40 caliber Smith & Wesson fired cartridge casing from the crime scene, but he could
–11– not tell how long it had been there or how far away it was “from the white vehicle
where the bloodstains were found.” Nevertheless, appellant cites O’Donnell’s
testimony that it was “possible” there were two firearms at the scene, presumably in
support of appellant’s argument that the evidence showed Richardson had a gun.
Kialani Killinger, a trace evidence examiner at the Southwest Institute of Forensic
Sciences (SWIFS), testified she conducted an analysis of gunshot residue on
Richardson and recovered “one particle characteristic of primer gunshot residue
confirmed” on the back of Richardson’s left hand. Killinger testified it was possible
the gunshot residue indicated Richardson had handled or fired a firearm. Appellant
argues this testimony supports his own testimony that Richardson had a firearm.
However, Killinger also testified there was no way to tell if Richardson fired a
weapon, and there were different ways to get gunshot residue on your hands,
including “being nearby while you’re being shot” or “clutching your wound where
you got shot.” As with the other evidence admitted at trial, the jury was the sole
judge of the weight and credibility of the evidence. See Adames, 353 S.W.3d at 860.
Here, “viewing all the evidence in the light most favorable to the prosecution,
any rational trier of fact would have found the essential elements of [the offense]
beyond a reasonable doubt and also would have found against appellant on the self-
defense issue beyond a reasonable doubt.” Braughton, 569 S.W.3d at 608–09
(quoting Saxton, 804 S.W.2d at 914). Accordingly, we conclude the evidence is
legally sufficient to support appellant’s murder conviction and the jury’s rejection
–12– of appellant’ claim that he acted in self-defense. See id. We overrule appellant’s
first issue.
B. Second and Third Issues: Jury Charge Error, Culpable Mental State and Apparent Danger
In his second issue, appellant complains the trial court erred in not limiting
the culpable mental state of “knowingly” and “with knowledge” to the result of
appellant’s conduct. In his third issue, appellant argues the trial court erred by not
submitting a jury charge on apparent danger, thereby limiting the jury’s
consideration to only actual danger. In his fourth issue, appellant asserts he was
harmed by the cumulative jury charge error. Because appellant argues these issues
together, we address these issues together.
Our first duty in analyzing a jury-charge issue is to decide whether error exists.
Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If error exists, we must
determine whether the error caused sufficient harm to warrant reversal. Ngo v. State,
175 S.W.3d 738, 743–44 (Tex. Crim. App .2005). When, as in this case, the error
was not objected to, the error must be “fundamental” and requires reversal only if it
was “so egregious and created such harm that the defendant was deprived of a fair
and impartial trial.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015)
(citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g)). Egregious harm exists when the record shows that a defendant has suffered
actual, rather than merely theoretical, harm from jury-charge error. Nava v. State,
–13– 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 174.
Egregious harm consists of error affecting the very basis of the case, depriving the
defendant of a valuable right, or vitally affecting a defensive theory. Villarreal, 453
S.W.3d at 433. “Egregious harm is a ‘high and difficult standard’ to meet, and such
a determination must be ‘borne out by the trial record.’” Id. (quoting Reeves v. State,
420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). We assess harm in light of (1) the
entirety of the jury charge, (2) the state of the evidence, including the contested
issues and weight of probative evidence, (3) the arguments of counsel, and (4) if
applicable any other relevant information revealed by the trial record as a whole.
Campbell v. State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022).
Appellant argues that murder is a result-of-conduct offense, which means that
the applicable mental state is only that related to result of conduct, citing Cook v.
State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). Appellant points out that the
trial court’s definition of “intentionally” was limited to the result of conduct, but the
definition of “knowingly” or “with knowledge” was not limited to the result of
conduct. As a result, appellant argues he was egregiously harmed because the jury
was allowed to convict appellant “based not upon [a]ppellant’s intent to cause
Richardson’s death or serious bodily injury but instead upon the nature of conduct
and/or circumstances surrounding the conduct and not the required culpability to
effect the result.”
–14– The jury charge in this case instructed the jury that a person commits the
offense of murder if the person (1) intentionally or knowingly causes the death of an
individual or (2) intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual. The trial court further
instructed the jury that:
A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
“Section 6.03 of the Texas Penal Code sets out: four culpable mental states—
intentionally, knowingly, recklessly, and criminally negligently; two possible
conduct elements—nature of the conduct and result of the conduct; and the effect of
the circumstances surrounding the conduct.” Price, 457 S.W.3d at 441; see also
TEX. PENAL CODE § 6.03. The gravamen of the offense is utilized to determine
which conduct elements should be included in the culpable mental-state language of
the jury charge. Price, 457 S.W.3d at 441. If the gravamen of the offense is the
result of conduct, the jury charge definitions of culpable mental states should be
tailored to the result of conduct. Id. A trial court errs by failing to limit the
definitions of the culpable mental states to the conduct element or elements of the
offense to which they apply. Id. –15– The State concedes it was error to include the “full, unrestricted statutory
definition of knowing” without limiting the language of “knowing” to the
appropriate conduct element. See id. at 441. In considering whether appellant was
egregiously harmed by the error, we first consider the entire jury charge. See
Almanza, 686 S.W.2d at 171. “In assessing harm resulting from the inclusion of
improper conduct elements in the definitions of culpable mental states, we ‘may
consider the degree, if any, to which the culpable mental states were limited by the
application portions of the jury charge.’” Patrick v. State, 906 S.W.2d 481, 492
(Tex. Crim. App. 1995).
The State argues that appellant has not shown he was egregiously harmed,
pointing out that the application paragraph for murder “clearly modified the alleged
result of appellant’s conduct” as follows:
Now, considering all the law contained in the Court’s charge, if you believe from the evidence beyond a reasonable doubt that the Defendant, RONALD ANTHONY ELLIOT, on or about the 1ST day of November, 2020, in the County of Dallas and said State, did unlawfully then and there intentionally or knowingly cause the death of PATRICK RICHARDSON, an individual, hereinafter called deceased, by shooting deceased with a firearm, a deadly weapon, then you will find the defendant guilty of Murder.
OR
That on or about the 1st day November, 2020, in Dallas County, Texas, the defendant, RONALD ANTHONY ELLIOT, did then and there intend to cause serious bodily injury to PATRICK RICHARDSON, hereinafter called deceased, and did then and there commit and act clearly dangerous to human life, to-wit: shooting deceased with a firearm, deadly weapon, and did thereby cause the death of PATRICK
–16– RICHARDSON, an individual, then you will find the defendant guilty of Murder as alleged in the indictment.
If you believe the defendant is not guilty of any offense, or have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict “not guilty.”
See TEX. PENAL CODE § 19.02(b)(1)–(2). The application portion of the charge
instructed the jury that in order to convict appellant of murder, it was required to
find beyond a reasonable doubt that appellant intentionally or knowingly caused
Richardson’s death or intended to cause serious bodily injury to Richardson and
committed an act clearly dangerous to human life by shooting Richardson and did
thereby cause Richardson’s death. See Patrick, 906 S.W.2d at 492. The application
paragraphs are the “heart and soul” of the jury charge. See Vasquez v. State, 389
S.W.3d 361, 367 (Tex. Crim. App. 2012). “It is the application paragraph of the
charge, not the abstract portion, that authorizes a conviction.” Yzaguirre v. State,
394 S.W.3d 526, 530 (Tex. Crim. App. 2013) (quoting Crenshaw v. State, 378
S.W.3d 460, 466 (Tex. Crim. App. 2012)). “Where the application paragraph
correctly instructs the jury, an error in the abstract instruction is not egregious.”
Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see also Crenshaw, 378
S.W.3d at 466.
In the absence of contrary evidence, we presume the jury followed the trial
court’s instructions in the application paragraphs of the charge. See Williams v.
State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996) (“[W]e assume that the jury
would follow the instruction as given, and we will not reverse in the absence of –17– evidence that the jury was actually confused by the charge.”). Nothing in the charge
in this case emphasized the inapplicable portion of the definition of “knowingly”
that appellant complains about, and the application paragraph properly placed the
culpable mental states. See Patrick, 906 S.W.2d at 492; Delgado v. State, 944
S.W.2d 497, 499 (Tex. App.–Houston [14th Dist.] 1997, pet. ref’d) (“Significantly,
the ‘nature of conduct’ language used in the court's definition paragraphs was not
repeated in the application paragraphs. We hold that this instruction appropriately
limited the overbroad language used in the court's definitions, and pointed the jury
to the proper issue to be resolved in a result-oriented offense.”). We conclude this
factor weighs against a finding of egregious harm.
The next factor is the “state of the evidence.” See Almanza, 686 S.W.2d at
171. The evidence established, and appellant did not dispute, that appellant shot and
killed Richardson and “committed an act clearly dangerous to human life by
shooting [Richardson] and murdering him that day.” The trial court correctly
instructed the jury regarding intentional murder, and there was sufficient evidence
to support a conviction under that theory of the offense. Therefore, there was “at
least one theory of the offense upon which [appellant’s] conviction may stand.”
Medina, 7 S.W.3d at 640. Accordingly, this factor does not weigh in favor of a
conclusion appellant suffered some actual, rather than theoretical, harm from the
trial court’s error in the definition of knowingly in the jury charge.
–18– The third factor requires that we consider the arguments of counsel. See
Almanza, 686 S.W.2d at 171. The State’s closing argument focused on the jury’s
choice between a decision that appellant acted in self-defense or a decision that
Richardson’s murder was a “revenge killing.” The prosecutor emphasized the
elements of appellant’s self-defense theory: that appellant’s actions were reasonable
and immediately necessary. Referring to the video camera recording, the prosecutor
maintained the video showed Richardson was “not pulling” a weapon. The
prosecutor further contended that, “if anyone has the right to self-defense in this
situation, it was [Richardson] because he’s being surrounding by five guys who are
boxing him in.” The prosecutor argued appellant did not act in self-defense and
referred to the application paragraph in the charge and the allegations that appellant
“knowingly or intentionally caused the death of an individual by shooting an
individual, which we’ve proven, or if he intended to cause serious bodily injury to
an individual, and he committed an act clearly dangerous to human life.” Defense
counsel maintained that appellant was consistent in his belief that he shot Richardson
in self-defense. Counsel accused Alberty of tampering with the crime scene and
removing Richardson’s gun. Counsel described Richardson as “a known drug
dealer” with over $6200 in his pocket who was “armed and dangerous.” Referring
to Richardson’s murder of Fisher, counsel argued Fisher did not take Richardson
seriously and “lost his life because of that.” Counsel argued that, when appellant
was “confronted with the same killer,” appellant took the threat seriously and shot
–19– Richardson in self-defense. The State did not erroneously argue the culpable mental
state necessary for the charged offense. Rather, the closing argument of both parties
focused on the issue of self-defense. We find nothing in the closing arguments to
indicate appellant suffered some actual, rather than theoretical, harm from the
erroneous definition of knowingly in the jury charge.
We finally must consider any other relevant information revealed by the
record as a whole. Almanza, 686 S.W.2d at 171. We have reviewed the entire record
and have found no other relevant information that requires our consideration.
On this record, we conclude the trial court’s error in failing to limit the
definition of “knowingly” to the applicable conduct element of the offense in the
abstract portion of the jury charge caused no actual, as opposed to theoretical, harm
to appellant. See Campbell, 664 S.W.3d at 254.
Appellant also argues that the trial court erred by not submitting a jury charge
on apparent danger. It is well-settled that a defendant has the right to defend oneself
against apparent danger to the same extent as if the danger was real. Hamel v. State,
916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Rider v. State, No. 05-20-00220-CR,
2022 WL 1769116, at *2 (Tex. App.—Dallas June 1, 2022, no pet.) (mem. op., not
designated for publication). Accordingly, the Court of Criminal Appeals has held
that if the evidence at trial raises the issue of self-defense—whether against actual
or apparent danger—the defendant has the right to a jury instruction on the issue of
self-defense. Hamel, 916 S.W.2d at 493. And in Jones v. State, the court held that
–20– when the issue is raised by the evidence, a defendant is entitled to a properly
requested instruction on his right to defend himself against an “apparent danger,” as
viewed from the standpoint of the actor. Jones v. State, 544 S.W.2d 139, 142 (Tex.
Crim. App. 1976); Rider, 2022 WL 1769116, at *2.
The Court of Criminal Appeals subsequently clarified its holding in Jones,
concluding that it was only error to refuse to give an “apparent danger” instruction
in cases in which the jury was not otherwise fully instructed on the law of self-
defense.3 Valentine v. State, 587 S.W.2d 399, 400–01 (Tex. Crim. App. 1979). As
our sister court later summarized:
[W]hen a defendant claims self-defense, his rights are preserved (and the concept of “apparent danger” is properly presented) when a jury charge: (1) states that a defendant’s conduct is justified if he reasonably believed that the deceased was using or attempting to use unlawful deadly force against the defendant, and (2) correctly defines “reasonable belief.”
Bundy v. State, 280 S.W.3d 425, 430 (Tex. App.—Fort Worth 2009, pet. ref’d)
(citing Valentine, 587 S.W.2d at 400–01); Rider, 2022 WL 1769116, at *3.
In complaining about the charge’s lack of an apparent danger instruction,
appellant cites only Jones and other authorities that do not reflect the current status
of the law on this issue. The jury charge in this case both stated that a person’s
conduct is justified if he reasonably believes the force is immediately necessary to
protect himself against the other’s use or attempted use of unlawful force and
3 The jury charge contained an instruction on self-defense, and appellant does not challenge that instruction. –21– correctly defined “reasonable belief.” Thus, the charge preserved appellant’s rights
and properly presented the concept of “apparent danger” without a separate
instruction. See Valentine, 587 S.W.2d at 400–01; Bundy, 280 S.W.3d at 430; Rider,
2022 WL 1769116, at *3. Accordingly, on this record, the trial court did not err in
failing to include in the charge a separate “apparent danger” instruction.
C. Fourth Issue: Cumulative Error
Appellant further complains that “the cumulative error doctrine encompassing
all of the jury charge errors set forth above when considered as a whole deprived
[him] of a fair and impartial trial.” “The doctrine of cumulative error provides that
the cumulative effect of several errors can, in the aggregate, constitute reversible
error, even though no single instance of error would.” Holloway v. State, No. 05-
14-01244-CR, 2016 WL 3098297, at *4 (Tex. App.—Dallas May 25, 2016, no pet.)
(mem. op., not designated for publication); see also Chamberlain v. State, 998
S.W.2d 230, 238 (Tex. Crim. App. 1999) (“It is conceivable that a number of errors
may be found harmful in their cumulative effect.”). We have already addressed the
single error in the court’s jury charge and determined that it did not result in
egregious harm to appellant. Thus, there are no errors to cumulate. See Taylor v.
State, No. 05-14-00821-CR, 2016 WL 7439194, at *9 (Tex. App.—Dallas Dec. 27,
2016) (mem. op., not designated for publication). In other words, a single error is
not cumulative error. See id. We overrule appellant’s second, third, and fourth
issues.
–22– D. Fifth and Sixth Issues:
In his fifth and sixth issues, argued together, appellant argues the trial court
abused its discretion in not allowing appellant to question a detective concerning
appellant’s cooperation and statement to the police and in not allowing appellant to
testify about his cooperation and statement to the police. Appellant asserts the
statements in question were admissible pursuant to the rule of optional completeness,
citing Allridge v. State, 762 S.W.2d 146, 152 (Tex. Crim. App. 1988).
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Colone v. State, 573 S.W.3d 249, 264–65 (Tex. Crim. App. 2019). A
trial court does not abuse its discretion if the decision to admit evidence is within the
zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim.
App. 2018). If the trial court’s ruling on admissibility is correct under any applicable
theory of law, the trial court’s decision should not be disturbed, even if the trial court
gives the wrong reason for its ruling. Johnson v. State, 490 S.W.3d 895, 908 (Tex.
Crim. App. 2016).
At a pretrial hearing, the trial court addressed the State’s “Allridge motion.”
The prosecutor made the following statement with respect to the motion:
The State filed a motion called the Allridge motion, which I have presented to the Defense, as well as to the Court, which will say that no one can allude even to the fact that the defendant was interviewed. The law is that any statement made by the defendant outside of court would be hearsay, and as a result, the State is asking not even any mention be made that he was interviewed.
–23– In response, defense counsel said he was “going to tell exactly what happened,
that there was a shooting and my client turned himself in and immediately talked to
the police.” Counsel stated he was also going to tell the jury that “they’re going to
hear from my client.” The prosecutor responded, “That’s fine as long as we don’t
talk about the interview that he did.” Defense counsel reiterated his intention to “say
that he turned himself in and immediately talked to a detective. I won’t go into the
technicality of whether he was interviewed, and all that, but I’m saying that he
immediately went to law enforcement.”
Appellant complains about the exclusion of evidence at both the
guilt/innocence and punishment phases of trial. At guilt/innocence, the State called
Dallas homicide detective Phillip Wheeler, who testified that, once another detective
identified appellant from the surveillance video, police began working on “securing
a warrant for murder.” Appellant “reach[ed] out and said he did want to come and
talk about what – what happened that day, and he did come and talk to me.”
Meanwhile, a SWAT team responded to the house where appellant was staying and
recovered some 9mm bullets and a “Glock magazine.”
On cross-examination, Wheeler testified appellant called him, defense
counsel asked if he could approach the bench, and the trial court held a discussion
outside the presence of the jury. Defense counsel asserted the following:
Judge, I believe that the door’s been opened. They, in their motion in limine, said that we couldn’t talk about any -- I guess the fact that the defendant gave a written or oral statement to the police regarding this
–24– case. And I believe that they opened the door when they say -- have their witness to say before this jury that my client called them and contacted with them and came down and turned himself in. That that opens the door, not necessarily to the -- to me introducing the video, Your Honor; however, under optional completeness, for me to at least refer to -- when he says my client came down -- and I’m trying to make sure I’m specific -- that my client contacted them and -- and -- and turned himself here [sic].
I think that I’m entitled to go into exactly to what extent my client contacted them, especially to the extent that, based on information that my client gave them, they went to his home looking for a firearm and recovered all this -- you know, this ammunition that the State has now paraded in front of the jury.
And I think that I’m entitled to go into, not exactly -- not necessarily -- again, Judge, I’m not trying to offer his interview, but I do want to be able to say that my client immediately went there and told them what happened. And I think I’m entitled to that because they opened the door.
The prosecutor pointed out that there had already been “a hearing on this,” and the
parties agreed that “all that we would say is that [appellant] was interviewed.” The
prosecutor noted that the defense “brought up the fact that he had turned himself in,”
which the parties agreed they were going to do. However, the prosecutor argued
“[h]earsay does not allow a defendant to bring up his own statement under any
circumstances.”
At this point, the trial court asked defense counsel what additional information
he was “trying to get into.” Counsel replied:
The only thing I’m getting him to [sic] is -- I guess, I believe I'm entitled to because he's had not just this witness, but also another witness, say that my client turned himself in, called her and said, “Well, I’m going to turn myself in.”
–25– So I’m entitled to say, not only did he turn himself in, but, again, he told you what happened. And based on what he told you, you went to the house. And I believe because they – they’re talking about him going to the house, trying to recover the weapon, that my client told them would be at the house, I'm entitled to go into it.
Again Judge, I’m not trying to offer his statement, but I do believe that I'm entitled to – that the jury should know that -- that -- that he not only -- he didn’t just turn himself in and then they locked him up. That’s – that’s the image that they’ve given them right now.
In the discussion that followed, defense counsel acknowledged that appellant
was going to testify, so counsel did not need appellant’s statement, but he did want
the jury “to know that he was fully cooperative.” The prosecutor cited Allridge for
the proposition that self-serving statements of the accused are generally inadmissible
at trial on his behalf. The trial court stated, “I am not going to allow you to go into
the interview any further than what we discussed at the ruling I had last week.”
Thus, defense counsel sought to admit evidence that appellant turned himself
in to police and gave a statement. Although appellant did not “need appellant’s
statement” because appellant intended to testify, counsel sought to develop evidence
that the statement led police to “the house” and “trying to recover the weapon” or a
“firearm” and recovered “ammunition.”
After the discussion outside the presence of the jury, defense counsel
continued his cross-examination of Wheeler. After confirming with Wheeler that
everything said in the interview with police was recorded, the following exchange
occurred:
–26– [DEFENSE COUNSEL]: I don’t want to get in to what Mr. Elliott said, but was he cooperative?
[DETECTIVE WHEELER]: He gave a statement.
[PROSECUTOR]: Objection, Your Honor. That’s the question. I’m going to object to violating the motion in limine we talked about just now.
[DEFENSE COUNSEL]: Judge – I’ll rephrase, Judge.
[DEFENSE COUNSEL]: Him coming to Jack Evans to come and talk to you, do you consider that cooperating? Did that help in your investigation?
[DETECTIVE WHEELER]: Himself turning himself in definitely helps --
[DEFENSE COUNSEL]: Right. Y’all didn’t have to go look for him, correct.
[DETECTIVE WHEELER]: Right.
[DEFENSE COUNSEL]: So to that extent, he cooperated, correct.
[DETECTIVE WHEELER]: He -- he did come down and give me a statement.
[DEFENSE COUNSEL]: Okay. Now, as far as -- the gun in the case was never recovered, right?
[DEFENSE COUNSEL]: But he told you where he thought it was, right? That’s why you went to the house, right?
Appellant characterizes this questioning as an exchange in which appellant “was not
allowed to have the detective answer the questions.” In support of this
characterization, appellant cites the following exchange later during cross-
examination: –27– [DEFENSE COUNSEL]: All right. And as far as the house, I think you indicated that y’all went out. How did you end up at the house?
[PROSECUTOR]: Objection, Your Honor. That’s -- is that violating the motion in limine as well that we just spoke about?
[DEFENSE COUNSEL]: I’ll rephrase.
[DEFENSE COUNSEL]: You testified earlier about this house were y’all found these cartridges and all that?
[DEFENSE COUNSEL]: Where did you get the information...
THE COURT: I want all counsel to remember the ruling that I just gave.
Appellant follows this quoted exchange with the assertion that his “counsel was
prevented from letting the jury know that [appellant] cooperated and gave the
detective information about where he left the gun at his house and that [appellant’s]
information helped the police to locate ammunition, a magazine to a Glock as well
as other evidence based upon [appellant’s] cooperation and statement.”
Consequently, appellant argues, “the trial court abused its discretion by preventing
the admission of this line of questioning and same affected [appellant’s] substantial
rights thereby harming him by depriving him of a fair and impartial trial.”
Appellant asserts the same argument with respect to the punishment stage
where, he argued, he was entitled to present a complete version of the facts that
included appellant making a statement to police and providing information to police
that led to police “going to get all this ammunition and stuff.” Appellant specifically
complained that, without this information, the evidence was only that “all he did was
–28– go down there and turn himself in.” Appellant requested that, “under optional
completeness and under this Allridge,” he “would like to have presented to the jury
the complete facts regarding what took place” when appellant met with Wheeler. As
counsel asserted previously, he did not seek to have his statement to police entered
into evidence.
We agree with the State that the evidence appellant sought to introduce was
before the jury. Wheeler testified appellant gave a “statement,” and the trial court
did not rule on the prosecutor’s objection to this testimony. As defense counsel
continued the cross-examination, Wheeler testified that appellant “turning himself
in definitely helps,” appellant “did come down and give [Wheeler] a statement,”
police never recovered “the gun in the case,” but appellant “told [Wheeler] where he
thought it was,” and “[t]hat’s why [police] went to the house.” Although the trial
court did not permit appellant to testify to this same evidence at punishment, the jury
at the punishment phase could consider the evidence admitted at the guilt-innocence
phase as well. Christopher v. State, 851 S.W.2d 318, 322 (Tex. App.—Dallas 1993,
pet. ref’d). Because the evidence appellant sought to develop was already before the
jury, we conclude the trial court did not abuse its discretion. See Colone, 573 S.W.3d
at 264–65. We overrule appellant’s fifth and sixth issues.
–29– We affirm the trial court’s judgment.
/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 220790F.U05
–30– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RONALD ANTHONY ELLIOTT, On Appeal from the 283rd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-76874-T. No. 05-22-00790-CR V. Opinion delivered by Justice Goldstein. Justices Molberg and THE STATE OF TEXAS, Appellee Pedersen, III participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 21st day of August 2024.
–31–