Affirmed and Opinion Filed August 14, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00462-CR
TREVOR RUSSELL, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-2175838-T
MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Miskel Opinion by Justice Partida-Kipness In four issues, appellant Trevor Russell challenges his conviction for
aggravated assault with a deadly weapon. Russell alleges the trial court erred by
failing (1) to include an application paragraph regarding self-defense in the jury
charge and (2) to instruct the jury the State bore the burden of disproving his claim
of self-defense. Russell also claims his trial counsel was ineffective for failing to
object (3) to the omission of the self-defense application paragraph in the jury charge
and (4) to the absence of an instruction the State bore the burden of disproving
Russell’s self-defense claim. We affirm the judgment. BACKGROUND
Russell was charged with aggravated assault with a deadly weapon for
shooting Vernon Woodward. Woodward testified he initially considered Russell a
friend and would work on his car for him. He stated the men had a disagreement
over what Woodward believed was a money-related issue. Woodward met Russell
at Lucky’s Food Mart, a neighborhood hangout, on May 12, 2021, to try to resolve
their issue. Woodward said he tried to talk to Russell, but Russell took a posture
showing he wanted to fight Woodward. When he realized Russell did not want to
discuss the issue, Woodward walked away from him and returned to his vehicle. As
Woodward was walking, he stated he heard someone call out his name and say “look
out.” Woodward turned and saw Russell running towards him. As he approached,
Russell pulled out a firearm and shot Woodward in the leg. Woodward fell to the
ground and Russell shot him eight additional times. Woodward stated he could not
do anything to stop the shooting but just “h[eld] my hands up.” Woodward had no
type of weapon on him when Russell shot him. Woodward testified he did have a
pellet gun in his vehicle but never pulled it out of his car.
Russell testified in his own defense explaining Woodward did some body
work on Russell’s vehicle. Russell felt Woodward did not properly repair the vehicle
and confronted Woodward when the two were at Lucky’s Food Mart. Russell stated
the two had a verbal altercation and Woodward told him, “I’m not going to fight you
–2– . . . I’m going to shoot you.” Russell believed Woodward had a rifle in his vehicle
and stated Woodward had intent. Russell also testified he believed another man who
worked at Lucky’s named Mark, was about to give Woodward a gun. On cross-
examination, Russell stated he had a pellet gun and shot Woodward with the pellet
gun. He explained he intended to beat Woodward to his weapon. When asked about
the surveillance video, Russell admitted it showed him running towards Woodward
and Woodward’s hands were extended into the air.
The trial court included a self-defense instruction in the abstract portion of the
jury charge but it was not included in the application portion. After requesting a self-
defense instruction, Russell did not object to the jury charge. The jury convicted
Russell of aggravated assault with a deadly weapon. He was sentenced to forty years’
imprisonment. This appeal followed.
ANALYSIS
In four issues, which we reorganized, Russell alleges the trial court erred by
failing (1) to include an application paragraph regarding self-defense in the jury
charge and (2) to instruct the jury the State bore the burden of disproving his claim
of self-defense. Additionally, he argues his trial counsel was ineffective for failing
to object (3) to the omission of the self-defense application paragraph in the jury
charge and (4) to the absence of an instruction the State bore the burden of disproving
Russell’s self-defense claim.
–3– I. Jury Charge Error
The purpose of the trial court’s jury charge is to instruct the jurors on the law
applicable to the case. See TEX. CODE CRIM. PROC. art. 36.14. The charge is the
instrument with which the jury convicts; therefore, it must be an accurate statement
of the law and set out the essential elements of the offense. Fields v. State, ––
S.W.3d––, ––, No. 01-20-00280-CR, 2022 WL 3268525, at *3 (Tex. App.—
Houston [1st Dist.] Aug. 11, 2022, pet. ref’d). A jury charge that improperly states
the law or the elements of an offense is erroneous. Id.
All alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court. Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012). Appellate review of purported error in a jury charge
involves a two-step process. Id. First, we determine whether the jury instructions are
erroneous. Id. Second, if error occurred, an appellate court must analyze the error
for harm. Id. The issue of error preservation is not relevant until harm is assessed
because the degree of harm required for reversal depends on whether error was
preserved or not. Id.
The failure to preserve jury-charge error is not a bar to appellate review but
rather establishes the degree of harm necessary for reversal. Warner v. State, 245
S.W.3d 458, 461 (Tex. Crim. App. 2008). Neither the State nor the appellant bears
the burden on appeal to prove harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex.
–4– Crim. App. 2013). Harm is assessed in light of the entire jury charge, the state of the
evidence, including contested issues and the weight of the probative evidence, the
parties’ arguments, and all other relevant information in the record. Alcoser v. State,
663 S.W.3d 160, 165 (Tex. Crim. App. 2022); Cosio v. State, 353 S.W.3d 766, 777
(Tex. Crim. App. 2011).
If the “defendant never presents a proposed jury instruction (or fails to object
to the lack of one), any potential error in the charge is reviewed only for ‘egregious
harm’ under Almanza.” Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App.
2008) (citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op.
on reh’g)). When an “appellant d[oes] not object to the charge, the error does not
result in reversal ‘unless it was so egregious and created such harm that appellant
was denied a fair trial.’” Warner, 245 S.W.3d at 461 (quoting Almanza, 686 S.W.2d
at 171). “Errors that result in egregious harm are those that affect the ‘very basis of
the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive
theory.’” Id. at 461–62 (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim.
App. 1996)). To establish egregious harm, the “appellant must have suffered actual,
rather than theoretical, harm.” Id. at 461.
A proper jury charge consists of an abstract of the law and the application
paragraphs. Smith v. State, No. 01-22-00471-CR, 2023 WL 4239875, at *6 (Tex.
App.—Houston [1st Dist.] June 29, 2023, no pet.). The abstract paragraphs serve as
a glossary to help the jury understand concepts and terms used in the application
–5– paragraphs of the charge. Id. The application paragraphs then apply the “pertinent
penal law, abstract definitions, and general legal principles to the particular facts and
the indictment allegations.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App.
2012).
A defendant is entitled to a self-defense instruction when a defensive issue is
raised by the evidence, “whether that evidence is strong or weak, unimpeached or
contradicted, and regardless of what the trial court may think about the credibility of
the defense.” Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). The
defendant bears the burden of production with respect to a defense, and the issue of
the existence of a defense is not submitted to the jury unless evidence is admitted
supporting the defense. Barnes v. State, No. 05-22-00013-CR, 2023 WL 3964007,
at *2 (Tex. App.—Dallas June 13, 2023, no pet. h.) (mem. op., not designated for
publication). To merit a self-defense instruction, an appellant must have adduced
some evidence of his state of mind at the time he used the force at issue. Barnes,
2023 WL 3964007, at *3; Vega v. State, No. 05-16-00882-CR, 2017 WL 1245423,
at *2 (Tex. App.—Dallas Apr. 5, 2017, no pet.) (mem. op., not designated for
publication).
Russell’s jury charge contained the following:
Application Paragraph
Now, considering all the law contained in the Court’s charge, if you believe from the evidence beyond a reasonable doubt that the Defendant, Trevor Russell, on or about the 19th day of May, 2021, in
–6– the County of Dallas and said State, did unlawfully then and there intentionally or knowingly or recklessly cause bodily injury to Vernon Woodward, by shooting Vernon Woodward with a firearm, and said defendant did use and exhibit a deadly weapon to wit; a firearm, during the commission of the assault, then you will find the defendant guilty of aggravated assault with a deadly weapon.
If you believe the defendant is not guilty of any offense, or have reasonable doubt thereof, then you will acquit the defendant and say by your verdict “not guilty.”
Self-Defense
‘Reasonable belief’ means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.
A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.
The use of force against another is not justified in response to verbal provocation alone.
The use of force against another is not justified if the actor provoked the other’s use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor.
A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against another; and
–7– (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary to protect himself against the other’s use of unlawful deadly force.
A person who has the right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force.
Russell requested a self-defense instruction but did not object to the jury
charge as it was written. However, the jury charge contains error because the
requested instruction was only contained in the section titled “Self-Defense” without
being included in the application portion of the jury charge. Since Russell did not
object to the jury charge as written, the factors must show he suffered egregious
harm by the jury charge. We look to the following factors to determine if Russell
suffered egregious harm: the entire jury charge, the state of the evidence, including
contested issues and the weight of the probative evidence, the parties’ arguments,
and all other relevant information in the record. Alcoser, 663 S.W.3d at 165.
In looking at the jury charge as a whole, we “ask whether anything in the
balance of the jury charge either exacerbated or ameliorated th[e] error.” French v.
State, 563 S.W.3d 228, 236 (Tex. Crim. App. 2018). The jury charge contained a
section which defined the terms necessary to the charge, an application paragraph, a
section on self-defense, and general evidentiary instructions which also explained
the State’s burden in criminal cases. There was no explanation in the application
paragraph regarding what should occur if the jury found Russell acted in self-
–8– defense. This does weigh slightly in favor of egregious harm. However, the
explanation of the self-defense doctrine immediately followed the application
paragraph. We could assume the jury would read the two sections together, and if it
had believed Russell’s self-defense claim, would have found him not guilty of the
charged offense. Russell’s testimony did not support a valid self-defense claim, the
jury did not believe he acted in self-defense, and the “presumption is dependent on
the evidence that was adduced at trial.” Villarreal v. State, 453 S.W.3d 429, 435–36
(Tex. Crim. App. 2015).
The state of the evidence presented at trial also did not support Russell’s
theory of self-defense. To be entitled to a self-defense instruction, Russell must have
believed deadly force was immediately necessary. See TEX. PENAL CODE § 9.32.
Although Russell testified and stated he felt Woodward threatened him, the evidence
does not support this assessment. Woodward testified he was not armed, and no one
was bringing him a firearm to shoot at Russell. The surveillance video admitted into
evidence supports Woodward’s testimony. It shows as Woodward walks away,
Russell approached and shot him. Russell continued to shoot Woodward as he laid
on the ground with his empty hands raised. Because Russell’s claim of self-defense
is not supported by the record, the inclusion of the self-defense section in the jury
charge was harmless and weighs against a finding of egregious harm. See Villarreal,
453 S.W.3d at 439.
–9– In their arguments to the jury, both sides discussed self-defense and its
applicability to this offense. The State argued Russell acted intentionally in shooting
Woodward and explained how his story of what occurred was not plausible based
on the evidence presented. Russell, on the other hand, reiterated the evidence he
believed was applicable to a self-defense justification. The fact both sides argued
according to their beliefs regarding the applicability of self-defense weighs against
a finding of egregious harm.
Other relevant information in the record shows the trial court explained to the
jury it was the State’s burden to prove Russell was guilty beyond a reasonable doubt
and Russell did not have any burden in the case at all. The trial court also told the
jury it could send out notes if there were any questions or clarification needed
regarding the jury charge. No notes were sent out during jury deliberations. See
Gelinas v. State, 398 S.W.3d 703, 709 (Tex. Crim. App. 2013) (no showing of
egregious harm when there were no jury notes contained in the record showing
confusion). The lack of additional information showing harm weighs against a
finding of egregious harm.
Russell has not made a showing he was egregiously harmed because based on
the evidence in the record, he was not entitled to a self-defense instruction. See
Villarreal, 453 S.W.3d at 436. After considering the four factors necessary to
establish egregious harm, we find Russell has failed to show he was actually harmed
–10– by the omission of self-defense in the application paragraph of the jury charge. His
first issue is overruled.
In his second issue, Russell also claims the trial court erred by failing to
include penal code section 2.03(d) in the jury charge. Section 2.03(d) states “if the
issue of the existence of a defense is submitted to the jury, the court shall charge that
a reasonable doubt on the issue requires that the defendant be acquitted.” TEX. PENAL
CODE § 2.03(d). Russell’s jury charge stated, “In all criminal cases, the burden of
proof is on the State. All persons are presumed to be innocent, and no person may
be convicted of an offense unless each element of the offense is proven beyond a
reasonable doubt.”
In Goodson v. State, as in this case, the charge (1) instructed the jury the
burden of proof beyond a reasonable doubt was on the State and (2) contained
instructions on the presumption of innocence. See No. 05-15-00143-CR, 2017 WL
1360193, at *11 (Tex. App. Apr. 12, 2017). Accordingly, (1) “when the charge is
viewed as a whole, it placed the burden on the State to show beyond a reasonable
doubt that appellant was not acting in self-defense” and (2) therefore, “[n]o error is
shown.” Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979) (rejecting
appellant's complaint the jury charge “was erroneous in that it did not inform the
jury that the State had to disprove beyond a reasonable doubt the issue of self-
defense”); see also Gonzalez v. State, No. 05–13–00630–CR, 2014 WL 3736208, at
*13–14 Tex. App.–Dallas July 14, 2014, no pet.) (not designated for publication)
–11– (concluding “the trial court did not err by submitting the jury charge without
including an instruction that the State was required to disprove the issue of self-
defense beyond a reasonable doubt,” where charge met requirements of Luck and
penal code section 2.03(d)) (internal citations omitted). Additionally, Russell did not
suffer harm because he was not entitled to a self-defense instruction and was not
egregiously harmed by the jury charge as written. We overrule his second issue.
II. Ineffective Assistance of Counsel
In his third and fourth issue, Russell argues his trial counsel was ineffective.
He states “no competent lawyer would have failed to object to the omission of the
application paragraph for self-defense” or “the omission of the reasonable doubt
instruction for self-defense.”
A successful ineffective assistance claim depends on (1) deficient
performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 694 (1984).
In determining whether counsel’s representation was deficient, we indulge a strong
presumption counsel’s conduct falls within a wide range of reasonable professional
assistance, including the possibility counsel’s actions were strategic. Id. at 689. We
focus on the totality of the representation afforded and not on individual alleged
errors. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). We consider
the adequacy of assistance as viewed at the time of trial, not in hindsight. Robertson
v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). We may not second-guess
counsel’s strategic decisions and defense counsel’s trial strategy cannot be
–12– considered ineffective assistance of counsel simply because another attorney would
have used a different strategy. Herrera v. State, No. 05-19-00021-CR, 2020 WL
4435309, at *10 (Tex. App.—Dallas Aug. 3, 2020, no pet.) (mem. op., not
designated for publication).
To defeat the presumption of reasonable representation, an allegation of
ineffectiveness must be firmly founded in the record and the record must
affirmatively demonstrate the alleged ineffectiveness. Prine v. State, 537 S.W.3d
113, 117 (Tex. Crim. App. 2017); Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.
App. 2001). A silent record provides no explanation for counsel’s actions and will
not overcome the strong presumption of reasonable assistance. Rylander v. State,
101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999). Moreover, “trial counsel should ordinarily be afforded
an opportunity to explain his actions before being denounced as ineffective.”
Rylander, 101 S.W.3d at 111. Where trial counsel is not given an opportunity to
explain his actions, counsel should only be found ineffective if counsel’s conduct
was “so outrageous that no competent attorney would have engaged in it.” Id. at 117
(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Russell claims his trial counsel was ineffective because he did not object to
the omission of self-defense in the application paragraph of the jury charge and penal
code section 2.03(d). In his motion for new trial, he failed to raise either of these
allegations against his trial counsel; therefore, trial counsel had not been given an
–13– opportunity to respond to such claims. See Bone v. State, 77 S.W.3d 828, 835 (Tex.
Crim. App. 2002).
However, we previously determined Russell was not entitled to a self-defense
instruction based on the evidence presented at trial. Trial counsel did request a self-
defense instruction, which was included in the jury charge under the “Self-Defense”
section. Russell’s testimony did not establish Woodward threatened him with deadly
force at any time before Russell shot Woodward multiple times. His belief he was
entitled to exercise self-defense was unfounded and implausible. Although the
evidence did not support Russell’s belief in self-defense, trial counsel did pursue
Russell’s defensive theory throughout the trial in his questioning of witnesses,
argument to the jury, and request for the instruction. Russell has not shown how trial
counsel’s actions were deficient based on the evidence presented. We overrule his
third issue.
Russell also alleges trial counsel was ineffective by not requesting the
inclusion of penal code section 2.03(d). However, as addressed above, the jury
charge included an explanation regarding the State’s burden of proof and how
Russell was presumed innocent unless all the elements of the offense were proven
beyond a reasonable doubt. Trial counsel’s lack of request of the specific language
of section 2.03(d) was not deficient when the appropriate language was contained in
the jury charge. We overrule Russell’s fourth issue.
–14– CONCLUSION
Based on the evidence presented in this record, we find Russell was not
egregiously harmed by the jury charge as presented and his trial counsel was not
ineffective. We affirm the trial court’s judgment.
/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b). 220543F.U05
–15– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TREVOR RUSSELL, Appellant On Appeal from the 283rd Judicial District Court, Dallas County, Texas No. 05-22-00462-CR V. Trial Court Cause No. F-2175838-T. Opinion delivered by Justice Partida- THE STATE OF TEXAS, Appellee Kipness. Justices Reichek and Miskel participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 14th day of August 2023.
–16–