Opinion issued April 3, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00549-CR ——————————— VINCENT HARRIS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas Trial Court Case No. 1716998
MEMORANDUM OPINION
Appellant Vincent Harris was convicted of murder involving a shooting and
sentenced to sixty years’ imprisonment. In three issues, Harris challenges his
conviction based on an alleged violation of the Confrontation Clause involving
admission of evidence and jury-charge error. We affirm. I. Background
On the evening of September 11, 2020, Daniel Partida, who had recently been
discharged from a halfway house, consumed alcohol and illegal drugs before falling
asleep at a bus stop with his possessions nearby in plastic bags. These possessions
were stolen and brought to a nearby Citgo gas station where they were placed inside
the station’s food mart. A group of men, including Harris (who is also known as
Airline Lil Mac), gathered at the Citgo station that evening and into the early hours
of September 12, 2020. Harris and his acquaintance Cornelius Watson1 placed
handguns inside the Citgo station’s food mart, as captured by video cameras.
When he awoke, Partida saw that his possessions, including his wallet and cell
phone, were missing and went to the Citgo station to find them. The men at the
Citgo station did not return the possessions, but some of them, including Ricky
Nacoste, assaulted Partida. Partida then left. Harris testified that he approached the
fight and told the men to leave Partida alone and not take advantage of him, but that
Partida “cussed” at Harris and stated he was going to “get his stuff back by any
means.” Harris’s account that he was acting altruistically in trying to help Partida
1 Our court previously affirmed Watson’s murder conviction involving the same events as this case. See Watson v. State, No. 01-23-00172-CR, 2024 WL 3350262 (Tex. App.—Houston [1st Dist.] July 9, 2024, no pet.) (mem. op., not designated for publication).
2 was contradicted by video showing that, after this confrontation, Harris was laughing
and reenacting the fight.
Around an hour later, Partida returned to the Citgo station. Partida testified
he did not have any weapon at any point that night and returned to the station because
he needed his possessions. According to Harris, Partida declared that, if his
possessions were not returned, “he was going to call his people and they were going
to shut this bitch down,” which Harris took to be a threat of violence. But Partida
testified his cell phone had been stolen and he could not make any calls.
Nacoste again started fighting Partida. Harris testified he tried to stop the fight
because he was concerned “one of them could hit their head the wrong way and die.”
Nonetheless, Harris eventually joined the fight and admitted he was punching at
Partida as he was trying to walk away. Harris admitted Partida did not have a
weapon and that Harris could have stopped fighting and returned to the Citgo station.
The fighters moved into the street and then into the parking lot of a Shell station
across from the Citgo station. Around that time, Jarmel Joiner, who was in a
wheelchair, traveled by the scene. Harris knew Joiner as someone who frequents
the area and washes car windows to make money.
At the time of this fight, Ingrid Ramirez was riding in a truck with her
husband, coming from the other side of a highway overpass that ran parallel to the
Citgo and Shell stations. They came to a stop at a traffic light on the side of the
3 overpass where the Citgo and Shell stations were located. At that point, Ramirez
saw Partida fighting with Nacoste. Ramirez believed Nacoste was the aggressor in
the fight because Partida was moving backward and appeared to be losing. Ramirez
observed the fight move across the road into the median, during which time Harris
joined Nacoste in fighting Partida. She then saw the fight move into the Shell station
parking lot.
While Harris and Partida were fighting in the Shell station parking lot, a blue
car pulled up to the men for about five seconds. Describing video from the Shell
station, a law-enforcement officer testified that Harris appeared to gesture to the car
to “get out of here.” Partida testified that it was a “random vehicle,” whereas Harris
testified it appeared the driver of the blue car knew Partida.
Harris initially testified that the driver of the blue car jumped out of the car,
but then clarified the driver only partially came out of the car and reached for a
handgun. According to Harris, a female passenger in the blue car prevented the
driver from exiting. Harris claims he told the driver to take Partida and leave, but
the driver stated, “[A]nybody standing on the corner fixing to get it.”
Ramirez also observed the blue car pull up to the men, where she says an
occupant spoke to Partida for two or three seconds. Ramirez saw the car then make
a U-turn out of the Shell station, drive under the overpass, and turn left to get onto
the feeder road on the other side of the overpass; she did not see the blue car again.
4 Ramirez did not see anyone in the blue car display a weapon, although she admitted
she could not tell if they were armed or not.
As the blue car began to leave, Harris and Watson ran back to the Citgo station
food mart. Partida followed them, and Joiner was still nearby. Harris and Watson
emerged from the food mart holding guns. Harris claims he was retrieving his gun
to defend himself and others because of the threat made by the driver of the blue car.
However, Harris conceded that nothing prevented him or others from leaving the
area or taking cover inside the Citgo station food mart.
At this point, Partida and Joiner turned around and started traveling away from
the Citgo station with their backs to the store. Harris and Watson followed in the
direction of Partida and Joiner and began shooting once they reached the adjacent
street. According to Harris, he saw the blue car had made a U-turn on the other side
of the overpass and was moving around three miles per hour. Harris claims that the
driver of the blue car then fired two shots from a gun inside the car. Harris testified
he told Watson, “[T]hey’re shooting at us,” so he and Watson defensively returned
fire. Harris stated there was a gap of about two to three seconds between when the
driver of the blue car fired shots and when Harris and Watson returned fire.
During this time, Ramirez and her husband were parked in the Shell station
parking lot with a good view of the shooting events. Ramirez testified she saw Harris
and Watson fire shots in the direction of Partida and Joiner, who were around five
5 feet apart from each other and still had their backs to Harris and Watson. Ramirez
testified she was one-hundred percent sure that the men shot in the direction of
Partida and Joiner.2 Ramirez stated they fired more than ten shots, and she did not
hear any other gunshots.
An investigating officer testified that law enforcement spoke to multiple
witnesses following the shooting, and the witnesses’ statements were generally
consistent except from one witness who stated the men were “shooting at a car near
the underpass.”
During the shooting, Joiner was hit by a bullet and died quickly thereafter.
Harris and Watson returned to the Citgo station, and Harris left in a vehicle that sped
past Joiner’s body on the street. Watson left the scene on foot. Ramirez called 911
to report that Joiner had been shot. Ramirez’s husband checked Joiner for a pulse
and determined he was dead.
2 On appeal, Harris contends Ramirez conceded her trial account of the shooting was inconsistent with her original account when she told officers the shooters were shooting in the direction of the blue car. Ramirez did not make such a concession.
During cross-examination at trial, Ramirez remained adamant that Harris and Watson were shooting in the direction of Partida and Joiner, not the blue car. She was then shown a transcript of a hearing from February 2023 where she apparently may have said it was possible they were shooting in the direction of a car. However, on re-direct examination, she explained she corrected the questioner in the prior hearing by explaining she did not say it was possible the men shot in the direction of a car.
6 Harris did not attempt to aid Joiner or communicate with police despite
knowing within a few minutes of the shooting that Joiner had died. Harris also could
not produce his gun at trial, claiming he had his then-girlfriend keep it to use to
exonerate him should he become a suspect in the shooting, but explaining he does
not communicate with her anymore.
Fourteen shell casings were found near where Joiner was shot. Forensics
established that the casings came from two guns, one that fired 9 mm ammunition,
and one that fired .380 caliber ammunition. Harris testified his gun was a .380
caliber. A crime-scene investigator testified she searched the area under the
overpass and did not see any casings in that area. Trial witnesses testified that
casings can be moved as cars drive over them and that casings will stay inside a gun
if a revolver is used or stay inside a car if the gun was fired while inside the car.
The investigation eventually led to Harris and Watson, both of whom were
indicted for murder. At trial in Harris’s case, he admitted the first time he told his
self-defense story was during the trial. He conceded he lied in January 2021 when
he told police he knew nothing about the shooting, and he recognized he did not tell
police about the blue car and his alleged self-defense story. Additionally, Harris
admitted that, when speaking on the phone to a friend in April 2023 about the
charges, Harris stated, “I know it’s my fault. I ain’t gonna never blame it on any
other person. It’s my fault, but damn.”
7 The jury charge contained several disjunctive application paragraphs
regarding alternative theories for how Harris was responsible for Joiner’s murder.
The charge also submitted defensive instructions that required acquittal if the jury
found, or had a reasonable doubt as to whether, Harris reasonably believed the use
of deadly force was immediately necessary to protect himself or a third person from
another’s use or attempted use of unlawful deadly force. These instructions further
provided that the use of force is not justified in response to verbal provocation alone,
and that a person who did not provoke the other person against whom deadly force
is used, and who was not engaged in criminal activity at the time the deadly force is
used, is not required to retreat before using deadly force.
During closing arguments, Harris argued he acted in defense of himself and
others when he lawfully fired shots in response to the driver of the blue car shooting.
Harris also argued that the driver of the blue car may have shot Joiner. The State
argued Harris was guilty of murder because the evidence refuted the story he
fabricated to justify Joiner’s shooting. The State further contended that, even if the
jury believed Harris’s story, he was not entitled to acquittal based on defense of
himself or others because the driver of the blue car engaged in mere verbal
provocation and Harris provoked the situation.
The jury unanimously found Harris guilty of murder, and the trial court
sentenced him to sixty years’ imprisonment. Harris now appeals.
8 II. Confrontation Clause
In his first issue, Harris contends that admission of the report regarding
Joiner’s autopsy, and testimony about the report, violated Harris’s right to
confrontation under the Sixth Amendment, requiring reversal. We disagree.
A. Legal standards
The Sixth Amendment to the United States Constitution—the Confrontation
Clause—provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him[.]” U.S. CONST. amend.
VI. “The main purpose behind the Confrontation Clause is to secure for the opposing
party the opportunity of cross-examination because that is ‘the principal means by
which the believability of a witness and the truth of his testimony are tested.’”
Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App. 2016) (citation omitted).
To implicate the Confrontation Clause, an out-of-court statement must
(1) have been made by a witness absent from trial and (2) be testimonial in nature.
Henriquez v. State, 580 S.W.3d 421, 427 (Tex. App.—Houston [1st Dist.] 2019, pet.
ref’d). If those initial requirements are met, the statement is admissible and does not
violate the Confrontation Clause only if (1) the declarant is unavailable and (2) the
defendant had a prior opportunity to cross-examine the declarant. Id. “An autopsy
report is considered testimonial when an objective medical examiner would
9 reasonably believe that the report would be used in a later prosecution.” Id. at 427–
28.
In assessing the harm arising out of a violation of constitutional rights, we
must reverse a judgment of conviction unless we determine beyond a reasonable
doubt that the error did not contribute to the conviction. TEX. R. APP. P. 44.2(a).
The critical inquiry is not whether the evidence supported the verdict absent the
erroneously admitted evidence, but rather the likelihood that the constitutional error
was a contributing factor in the jury’s deliberations. Henriquez, 580 S.W.3d at 429
(citations and quotations omitted). When reviewing harm for violations of the
Confrontation Clause, we consider: (1) how important the out-of-court statement
was to the State’s case; (2) whether the out-of-court statement was cumulative of
other evidence; (3) the presence or absence of evidence corroborating or
contradicting the out-of-court statement on material points; and (4) the overall
strength of the prosecution’s case. Gutierrez v. State, 516 S.W.3d 593, 599 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d).
B. Analysis
Tabitha Ward, M.D. performed the autopsy of Joiner, and Lucile Tennant,
M.D. reviewed the report. At trial, Dr. Ward and Dr. Tennant were not available to
testify, so the State called Ana Lopez, M.D. to testify about the autopsy and the
manner of Joiner’s death. Harris objected to admission of the autopsy report and Dr.
10 Lopez’s testimony because Dr. Lopez was not involved in the autopsy, meaning
Harris was unable to cross-examine the doctors who actually performed the autopsy,
violating his right to confrontation. The trial court overruled the objection and
admitted the autopsy report.
Dr. Lopez testified that she is a board-certified forensic pathologist who has
performed over 5,000 autopsies. Dr. Lopez reviewed the autopsy photographs, the
crime-scene photographs, and the findings of Dr. Ward and Dr. Tennant as stated in
their autopsy report. Dr. Lopez agreed with the autopsy-report findings that Joiner
was shot in the right side of his back from a distance of greater than 2.5-to-3 feet,
and the bullet exited the left side of his body near the chest. But Dr. Lopez also
testified she independently observed the gunshot wounds in the autopsy photographs
(which were admitted into evidence without objection3), and she explained why the
wound on Joiner’s back was the entry wound and the wound near the left side of his
chest was the exit wound. During cross-examination, Dr. Lopez went over the
autopsy photographs again and explained in detail why the back wound is an entry
3 The photographs admitted into evidence were of Joiner’s body, and specifically his gunshot wounds, before any autopsy-related cutting began. “[A]utopsy photographs are considered nontestimonial in nature and do not implicate the Confrontation Clause.” Henriquez, 580 S.W.3d at 428.
11 wound because it is a circular wound with a rim of abrasion, and the front wound is
an exit wound because it is slit-shaped and does not have a rim of abrasion.
Assuming the autopsy report was testimonial in nature, and assuming
admission of the report and Dr. Lopez’s testimony about the report violated the
Confrontation Clause, we hold the violation was not harmful. Harris argues the
autopsy report and Dr. Lopez’s testimony about the report were “crucial evidence
for the State” because they detailed that Joiner was shot in the right side of his back,
with the bullet exiting the left side of his chest. Harris contends this was important
for the State to prove because there was a “valid disagreement about the trajectory
of the bullet” and it was unknown what caliber gun fired the bullet and from how
far. But the autopsy report simply describes the bullet’s path through Joiner’s body
and does not pertain to where the shooter was aiming when the fatal shot was fired,
where Joiner was facing at the time of the shooting, or what the bullet’s caliber was.
Moreover, Harris argued during trial and argues on appeal that the trajectory of the
bullet path as described in the autopsy report is consistent with the defense theory
that Harris and Watson fired at the blue car in self-defense—meaning, per Harris,
the autopsy report aided his defense.
Harris also argues “Dr. Lopez could only parrot Dr. Ward’s conclusions from
the autopsy report,” but that is wrong. Based on the photographs, Dr. Lopez was
12 able to explain independent of the autopsy report why the bullet wound on Joiner’s
back was the entry wound, and the wound to the left of his chest was the exit wound.
Accordingly, the autopsy report was not critical to the State’s case but set forth
an uncontested fact4 of where the bullet entered and exited Joiner’s body and was
cumulative of Dr. Lopez’s testimony regarding her own review of the photographs.
Moreover, Harris argued that the autopsy report supported his theory of self-defense.
Based on the relevant considerations, we conclude beyond a reasonable doubt that
any Confrontation Clause violation stemming from admission of the autopsy report
and testimony did not contribute to Harris’s conviction. See TEX. R. APP. P. 44.2(a);
Henriquez, 580 S.W.3d at 429–30 (concluding error was harmless because autopsy
report added little beyond autopsy photographs and testifying doctor’s testimony
based on her independent review, both of which were properly admitted). We
overrule Harris’s first issue.
III. Jury Charge
In his second issue, Harris argues that trial court erred by denying his request
to modify language in the jury charge stating that the jury’s duty was to determine
4 Some of the emergency and law-enforcement personnel who came to the scene of the shooting noted the wound near the left side of Joiner’s chest was the entry wound. However, these personnel admitted their preliminary belief was merely a guess and they would defer to the medical examiner’s opinion. Harris did not argue at trial that the front wound was the entry wound but adopted Dr. Lopez’s opinion that the back wound was the entry wound.
13 “guilt or innocence.” In his third issue, Harris contends the disjunctive application
paragraphs in the jury charge allowed him to be convicted by a non-unanimous
verdict in violation of the Texas Constitution.
We review alleged charge error by first determining whether error exists in
the charge. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If error
exists, we analyze the harm resulting from the error to determine whether reversal is
required and apply separate standards of review depending on whether the defendant
timely objected to the jury instructions. Id.; see also Marshall v. State, 479 S.W.3d
840, 843 (Tex. Crim. App. 2016).
The purpose of the jury charge is to instruct the jurors on the law applicable
to the case. See TEX. CODE CRIM. PROC. art. 36.14; Vasquez v. State, 389 S.W.3d
361, 366 (Tex. Crim. App. 2012). The abstract portion of the court’s charge sets
forth the law in general terms, including statutory definitions and offense elements.
See Vasquez, 389 S.W.3d at 366–67. The application paragraphs then apply that law
to the particular facts. Id. A jury charge that improperly states the law or the
elements of an offense is erroneous. Hollins v. State, No. 01-22-00776-CR, 2024
WL 4982504, at *8 (Tex. App.—Houston [1st Dist.] Dec. 5, 2024, no pet. h.) (mem.
op., not designated for publication).
14 B. There is no jury-charge error regarding “guilt or innocence”
Regarding Harris’s second issue, the charge provided, “Your sole duty at this
time is to determine the guilt or innocence of the defendant under the indictment in
this cause and restrict your deliberations solely to the issue of guilt or innocence of
the defendant.” Harris’s counsel argued this was a misstatement of the law because
the jury does not consider whether a defendant is innocent. Harris’s counsel asked
the trial court to modify the language to read, “Your sole duty at this time is to
determine whether the State has proved the elements under the indictment in this
cause beyond a reasonable doubt and restrict your deliberations solely to that issue.”
The trial court denied this request.
Our sister court has previously held that this exact same instruction is not
improper but tracks the requirement in the Texas Code of Criminal Procedure that
the jury first consider “the issue of guilt or innocence of the defendant” before the
punishment phase of trial. Avila v. State, 15 S.W.3d 568, 576 (Tex. App.—Houston
[14th Dist.] 2000, no pet.) (quoting TEX. CODE CRIM. PROC. art. 37.07, § 2(a)). The
court further explained that there was no risk that this instruction could mislead or
confuse the jury into believing the defendant had the burden to prove his innocence
because other instructions in the charge made it clear the “law does not require a
defendant to prove his innocence or produce any evidence at all.” Id. (emphasis in
original). The charge here similarly contained instructions making it clear that
15 Harris was presumed innocent and had no burden to prove his innocence. The trial
court did not err in rejecting Harris’s proposed instruction. We overrule Harris’s
second issue.
C. There is no jury-charge error regarding unanimity
Regarding Harris’s third issue, the indictment charged him with two
alternative theories for Joiner’s murder, first for intentionally and knowingly causing
Joiner’s death by shooting him with a firearm, and second for intending to cause
serious bodily injury to Joiner and causing his death by intentionally and knowingly
committing an act clearly dangerous to human life by shooting him with a firearm.
See TEX. PENAL CODE § 19.02(b)(1), (2).
The jury charge authorized conviction pursuant to three application
paragraphs as follows: (1) on a finding beyond a reasonable doubt (a) that Harris
intentionally and knowingly caused Joiner’s death by shooting him with a firearm
or (b) that Harris was criminally responsible as a party by promoting or assisting
Watson, who intentionally and knowingly caused Joiner’s death by shooting him
with a firearm; or (2) on a finding beyond a reasonable doubt (a) that Harris intended
to cause serious bodily injury to Joiner and did cause his death by intentionally and
knowingly committing an act clearly dangerous to human life by shooting him with
a firearm or (b) that Harris was criminally responsible as a party by promoting or
assisting Watson, who intended to cause serious bodily injury to Joiner and did cause
16 his death by intentionally and knowingly committing an act clearly dangerous to
human life by shooting him with a firearm; or (3) on a finding beyond a reasonable
doubt that Harris, acting alone or with Watson as a party, intentionally and
knowingly shot a firearm at a known or unknown person or persons, intending or
knowing that serious bodily injury or death would occur to that person or those
persons, and hit Joiner, causing his death. Thus, the jury charge submitted both
indicted theories for Joiner’s murder and allowed for Harris’s conviction under law-
of-parties and transferred-intent theories. See TEX. PENAL CODE §§ 6.04(b)(2)
(transferred intent), 7.01–.02(a)(2) (law of parties).
“When alternate theories of committing the same offense are submitted to the
jury in the disjunctive, it is appropriate for the jury to return a general verdict if the
evidence is sufficient to support a finding under any of the submitted theories.”
Lazarine v. State, No. 01-19-00982-CR, 2021 WL 5702182, at *4 (Tex. App.—
Houston [1st Dist.] Dec. 2, 2021, pet. ref’d) (mem. op., not designated for
publication). This applies when alternative theories for committing murder are
submitted because “the theories are alternative manners and means of committing
the offense of murder, rather than distinct offenses.” Braughton v. State, 522 S.W.3d
714, 727–28 (Tex. App.—Houston [1st Dist.] 2017), aff’d, 659 S.W.3d 592 (Tex.
Crim. App. 2019). It also applies when application paragraphs authorize a murder
conviction based on law-of-parties and transferred-intent theories because they are
17 likewise alternative manners and means of committing murder. See Holford v. State,
177 S.W.3d 454, 463 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (pertaining
to the law of parties); see also Small v. State, No. 01-14-00421-CR, 2016 WL
4126725, at *17 (Tex. App.—Houston [1st Dist.] Aug. 2, 2016, pet. ref’d) (mem.
op., not designated for publication) (explaining section 6.04(b)(2) authorizes a
murder conviction when defendant kills a person different than the person he
intended to kill).
In Holford, we determined disjunctive application paragraphs involving a
murder charge and the law of parties did not violate the unanimity requirement:
Each of the disjunctive paragraphs thus describes a different means of committing the same act. The paragraphs instructing on conspiracy and law of parties include a transferred intent as a potential means of committing the offense, but the transferred intent ultimately relates to the same actus reus. . . . [T]he actus reus of Holford’s offense was murder. We hold that the trial court’s instructions require the jurors to agree that Holford committed that single act (either directly or via transferred intent), and thus the trial court did not err in failing to instruct the jury that it must agree unanimously on the manner of [decedent’s] murder.
177 S.W.3d at 463; see also Sanchez v. State, No. 03-13-00050-CR, 2013 WL
4487562, at *6 (Tex. App.—Austin Aug. 15, 2013, pet. ref’d) (mem. op., not
designated for publication) (“[The Court of Criminal Appeals] makes it clear that
multiple theories of party liability under section 7.02 may be listed disjunctively in
the jury charge without running afoul of the constitutional unanimity requirement.”).
18 Harris relies on inapplicable cases in which the jury charge erroneously did
not require unanimity regarding the specific offense committed or the specific
incident that constituted commission of the offense. See Stuhler v. State, 218 S.W.3d
706, 716–20 (Tex. Crim. App. 2007) (concluding unanimity required for type of
“injury to a child” committed); Ngo v. State, 175 S.W.3d 738, 741 (Tex. Crim. App.
2005) (concluding unanimity required for specific incident of “credit card abuse”
committed); Francis v. State, 36 S.W.3d 121, 122–25 (Tex. Crim. App. 2000)
(concluding unanimity required for specific incident of “indecency with a child”
committed). Here, the charge required unanimity regarding the offense committed
and the incident that constituted commission of the offense, specifically Joiner’s
murder by shooting.
Accordingly, for each theory that was submitted in the present case, the
criminal act was the same—Joiner’s murder. Harris cannot avoid criminal
responsibility for Joiner’s murder merely because Watson, whom Harris was aiding,
fired the fatal shot, or because Harris and Watson intended to shoot another person
when one of them shot Joiner. The charge required the jury to unanimously find
beyond a reasonable doubt that Harris was responsible for causing Joiner’s murder
by shooting, albeit via alternative theories regarding the means and modes of
committing the murder, and thus satisfied the Texas Constitution. See Hernandez v.
State, No. 01-15-00492-CR, 2016 WL 5920768, at *8 (Tex. App.—Houston [1st
19 Dist.] Oct. 11, 2016, pet. ref’d) (mem. op., not designated for publication) (“Jury
unanimity is required on the essential elements of the offense, but is generally not
required on the alternate modes or means of commission.”). We overrule Harris’s
third issue.
Conclusion
We affirm the judgment of the trial court.
Andrew Johnson Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.
Do not publish. TEX. R. APP. P. 47.2(b).