Waymon Nicholas Jordan Jr. v. the State of Texas
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Opinion
In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00205-CR ________________
WAYMON NICHOLAS JORDAN JR., Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 20-02-02178-CR ________________________________________________________________________
MEMORANDUM OPINION
A jury convicted Waymon Nicholas Jordan Jr. (“Jordan”) of capital murder
for shooting Devin Rash (“Rash”) and Ryan York (“York”) in a single transaction.
See Tex. Penal Code Ann. § 19.03(a)(7)(A), (b). The trial court sentenced him to life
without parole. See id. § 12.31(a)(2). On appeal, Jordan raises thirteen issues
challenging: (1) the sufficiency of the evidence; (2) the denial of his motions to
suppress; (3) certain evidentiary rulings; and (4) the trial court’s refusal to include
1 his requested instructions in the jury charge. We affirm the trial court’s judgment for
the reasons discussed below.
BACKGROUND
Rash was a marijuana dealer, and Jordan was a repeat customer. On the
morning of February 12, 2020, Jordan communicated with Rash through SnapChat
and asked to buy two “zips” (ounces) of marijuana. They agreed to a price of $380
and to meet at the Whistle Stop Café parking lot in the River Bend Shopping Center
in Montgomery County. Rash arrived at the Whistle Stop in the same car with York
and Bryce Smith, who was driving. Jordan undisputedly shot all three men in the
head, killing Rash and York almost instantly, but Smith survived. Jordan claimed
self-defense and that the three others tried to rob him, so the primary question at trial
became whether Jordan’s actions were justified. We address the evidence adduced
at trial below. We outline the necessary procedural background for the resolution of
suppression and jury charge issues later in the opinion.
TRIAL EVIDENCE
Testimony of Bryce Smith
Bryce Smith (“Smith”) testified that on February 12, 2020, he drove Rash to
the Whistle Stop Café to sell two ounces of marijuana to someone, and he did not
know Jordan’s name at the time. He testified that he also picked up York.
2 When they pulled into the parking lot, he saw a police car backed in, and they
joked about it; Smith said he was a “little bit” worried about it, but they did not
cancel the deal. When they arrived, Jordan was already there. They parked between
Jordan’s truck and a big van. Smith was driving a compact car, Rash was in the front
passenger seat, and York was in the back on the driver’s side. Smith described Jordan
approaching the car,
So, he walked up to “this” rear door and he opens the door and he looks in. He takes a good look at us, looks me in my face, looks at Devin and makes a comment that, You guys are rolling really deep today and had a really nervous laugh at the end. For you guys that don’t know what that means is, that means he just voiced his concern as to how many people we had in the car . . . somebody who knows what that means is that he’s not coming with good intentions.
Smith said that Jordan finally got into the car on the back passenger side next to
York.
Smith testified that once Jordan got in the car, they talked for a minute –
exchanging pleasantries, then Rash asked whether Jordan had the money. Smith
explained that when Jordan did not answer, Rash asked, “Hey, man. Do you have
the money?” and Smith turned around and looked at him, which is when Jordan
pulled out the gun. Smith testified that Jordan shot York first, then Smith, and Rash
third. Smith said that he “just kind of assumed” Jordan had no money after they were
shot.
3 Smith explained that when he was shot in the head, he went “through a
concussion which is what knocked me out” but did not know how long he was
unconscious. When he came to, he saw his friends’ heads. He explained that York
and Rash were unresponsive. At that point, Smith called Frankie Boyd, Rash’s
girlfriend, instead of the police, because he thought drugs were still in the car and
was worried about getting in trouble. During Smith’s testimony, Boyd’s 9-1-1 call
was played for the jury.
Smith testified that he never knew Rash to sell drugs to strangers or someone
he had not checked out. Smith had never seen Rash or York with a gun. Smith denied
that they planned to rob Jordan and that York never said anything. He also denied
that either he, Rash, or York did anything to put Jordan in fear, like threatening him,
raising their voices, or showing weapons.
He vaguely remembered being transported to the hospital and before that tried
to tell police what he knew, but at that point, he did not know who had done it. Smith
remembered talking to a detective at the hospital and describing the vehicle as a
“jacked-up, white F-150” with big wheels. Smith explained that during the
investigation, he did not know the shooter’s name.
Smith described his health problems since the shooting and admittedly had
blank spots in his memory about the shooting. He explained that some of the details
he had not told officers before his trial testimony because it “never came up.”
4 Testimony of Officer Jason Tosto
Conroe police officer Jason Tosto (“Tosto”) testified that about 5:20 p.m. on
February 12, 2020, he arrived at the River Bend Shopping Center, where the Whistle
Stop Café is located. During his testimony, Tosto referred to a map of the shopping
center and parking area.
Tosto explained he parked at the primary entrance, so he could follow-up on
a prior call and activated his bodycam during that call. While there, he was alerted
at 5:29 p.m. to a Priority 1 event by the Conroe Police Department, and he realized
he was near the address.
When dispatch informed another officer that Tosto was inside the parking lot
where the incident occurred, he checked businesses for any sign of a disturbance and
parked cars for people with injuries. After learning the people involved were in a
black, Nissan car, he approached one that possibly matched the description.
Tosto testified that he saw at least one person in the driver’s seat that appeared
distracted and asked if he was okay – the driver shook his head, “no[.]” Tosto
observed a body slumped forward in the front passenger seat. When the driver exited
to talk to Tosto, he saw another body in the backseat. Tosto explained that he was
initially unsure of the driver’s involvement but saw an injury and blood on his face.
Tosto wanted to help but maintained some distance, since he did not know the
5 driver’s emotional or mental state. The driver asked for help and said he was in pain.
Tosto explained he had the driver sit down to contain him and prevent more injury.
Tosto checked the passengers for a pulse, and neither had one. By then, other
officers started to arrive. Tosto remembered the front passenger still had his seat belt
buckled but remembered nothing in his lap. He removed the front passenger from
the car, which his bodycam recorded. Tosto testified that while officers helped, they
learned another involved party was no longer on location, so they asked who did it
and what happened.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00205-CR ________________
WAYMON NICHOLAS JORDAN JR., Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 20-02-02178-CR ________________________________________________________________________
MEMORANDUM OPINION
A jury convicted Waymon Nicholas Jordan Jr. (“Jordan”) of capital murder
for shooting Devin Rash (“Rash”) and Ryan York (“York”) in a single transaction.
See Tex. Penal Code Ann. § 19.03(a)(7)(A), (b). The trial court sentenced him to life
without parole. See id. § 12.31(a)(2). On appeal, Jordan raises thirteen issues
challenging: (1) the sufficiency of the evidence; (2) the denial of his motions to
suppress; (3) certain evidentiary rulings; and (4) the trial court’s refusal to include
1 his requested instructions in the jury charge. We affirm the trial court’s judgment for
the reasons discussed below.
BACKGROUND
Rash was a marijuana dealer, and Jordan was a repeat customer. On the
morning of February 12, 2020, Jordan communicated with Rash through SnapChat
and asked to buy two “zips” (ounces) of marijuana. They agreed to a price of $380
and to meet at the Whistle Stop Café parking lot in the River Bend Shopping Center
in Montgomery County. Rash arrived at the Whistle Stop in the same car with York
and Bryce Smith, who was driving. Jordan undisputedly shot all three men in the
head, killing Rash and York almost instantly, but Smith survived. Jordan claimed
self-defense and that the three others tried to rob him, so the primary question at trial
became whether Jordan’s actions were justified. We address the evidence adduced
at trial below. We outline the necessary procedural background for the resolution of
suppression and jury charge issues later in the opinion.
TRIAL EVIDENCE
Testimony of Bryce Smith
Bryce Smith (“Smith”) testified that on February 12, 2020, he drove Rash to
the Whistle Stop Café to sell two ounces of marijuana to someone, and he did not
know Jordan’s name at the time. He testified that he also picked up York.
2 When they pulled into the parking lot, he saw a police car backed in, and they
joked about it; Smith said he was a “little bit” worried about it, but they did not
cancel the deal. When they arrived, Jordan was already there. They parked between
Jordan’s truck and a big van. Smith was driving a compact car, Rash was in the front
passenger seat, and York was in the back on the driver’s side. Smith described Jordan
approaching the car,
So, he walked up to “this” rear door and he opens the door and he looks in. He takes a good look at us, looks me in my face, looks at Devin and makes a comment that, You guys are rolling really deep today and had a really nervous laugh at the end. For you guys that don’t know what that means is, that means he just voiced his concern as to how many people we had in the car . . . somebody who knows what that means is that he’s not coming with good intentions.
Smith said that Jordan finally got into the car on the back passenger side next to
York.
Smith testified that once Jordan got in the car, they talked for a minute –
exchanging pleasantries, then Rash asked whether Jordan had the money. Smith
explained that when Jordan did not answer, Rash asked, “Hey, man. Do you have
the money?” and Smith turned around and looked at him, which is when Jordan
pulled out the gun. Smith testified that Jordan shot York first, then Smith, and Rash
third. Smith said that he “just kind of assumed” Jordan had no money after they were
shot.
3 Smith explained that when he was shot in the head, he went “through a
concussion which is what knocked me out” but did not know how long he was
unconscious. When he came to, he saw his friends’ heads. He explained that York
and Rash were unresponsive. At that point, Smith called Frankie Boyd, Rash’s
girlfriend, instead of the police, because he thought drugs were still in the car and
was worried about getting in trouble. During Smith’s testimony, Boyd’s 9-1-1 call
was played for the jury.
Smith testified that he never knew Rash to sell drugs to strangers or someone
he had not checked out. Smith had never seen Rash or York with a gun. Smith denied
that they planned to rob Jordan and that York never said anything. He also denied
that either he, Rash, or York did anything to put Jordan in fear, like threatening him,
raising their voices, or showing weapons.
He vaguely remembered being transported to the hospital and before that tried
to tell police what he knew, but at that point, he did not know who had done it. Smith
remembered talking to a detective at the hospital and describing the vehicle as a
“jacked-up, white F-150” with big wheels. Smith explained that during the
investigation, he did not know the shooter’s name.
Smith described his health problems since the shooting and admittedly had
blank spots in his memory about the shooting. He explained that some of the details
he had not told officers before his trial testimony because it “never came up.”
4 Testimony of Officer Jason Tosto
Conroe police officer Jason Tosto (“Tosto”) testified that about 5:20 p.m. on
February 12, 2020, he arrived at the River Bend Shopping Center, where the Whistle
Stop Café is located. During his testimony, Tosto referred to a map of the shopping
center and parking area.
Tosto explained he parked at the primary entrance, so he could follow-up on
a prior call and activated his bodycam during that call. While there, he was alerted
at 5:29 p.m. to a Priority 1 event by the Conroe Police Department, and he realized
he was near the address.
When dispatch informed another officer that Tosto was inside the parking lot
where the incident occurred, he checked businesses for any sign of a disturbance and
parked cars for people with injuries. After learning the people involved were in a
black, Nissan car, he approached one that possibly matched the description.
Tosto testified that he saw at least one person in the driver’s seat that appeared
distracted and asked if he was okay – the driver shook his head, “no[.]” Tosto
observed a body slumped forward in the front passenger seat. When the driver exited
to talk to Tosto, he saw another body in the backseat. Tosto explained that he was
initially unsure of the driver’s involvement but saw an injury and blood on his face.
Tosto wanted to help but maintained some distance, since he did not know the
5 driver’s emotional or mental state. The driver asked for help and said he was in pain.
Tosto explained he had the driver sit down to contain him and prevent more injury.
Tosto checked the passengers for a pulse, and neither had one. By then, other
officers started to arrive. Tosto remembered the front passenger still had his seat belt
buckled but remembered nothing in his lap. He removed the front passenger from
the car, which his bodycam recorded. Tosto testified that while officers helped, they
learned another involved party was no longer on location, so they asked who did it
and what happened. Smith told them he did not know the person or what he looked
like and just remembered hearing two bangs, then his head hurt.
During Tosto’s testimony, his bodycam footage was played for the jury, and
it showed Tosto locating the vehicle and Smith’s exiting the car with blood on his
face and head. It captured York and Rash being pulled from the car and officers
performing CPR.
Tosto explained it was important to try to get information from Smith,
although seriously injured, “Because at that point, we were under the impression
there was another involved party that was no longer on location, and we needed
names, descriptions, vehicles, any information he could give us so we could continue
to follow with that investigation.” Tosto later learned the shooting happened while
he sat in the parking lot, but he did not hear the shots, and no vehicles caught his
attention. He learned that some businesses, including the Makeup Junkie store, had
6 surveillance footage, which was played for the jury and showed a white, lifted Ford
F-250 pickup truck leaving the parking lot.
Tosto testified that he later transported a person of interest from Willis to the
Conroe Police Station. He testified that the person was not under arrest or in
handcuffs, and he walked the person through the police station’s front door. Tosto
did not know the individual’s name, “just that he was a person of interest.” Tosto
testified he did not ask him any questions during the transport other than “personal
music choices.”
Tosto was familiar with the concept of a “drug rip.” Tosto explained that “a
drug rip is a prearranged deal for the sale of narcotics that has gone in a different
way . . . essentially, you come with the drugs, I come with money. I don’t have the
drugs, but I’m going to take your money.” Tosto testified that marijuana is illegal in
Texas.
Testimony of Ralph Horne
Officer Ralph Horne (“Horne”) with the Conroe Police Department testified.
He previously worked as a crime scene investigator (CSI) for about ten or eleven
years. Horne testified that about 5:30 p.m. on February 12, 2020, he was dispatched
to River Bend Station Shopping Center and was the on-call CSI. When he arrived,
Horne took photographs to document the scene, which included photographs of
Rash’s and York’s bodies.
7 Horne remembered Smith trying to explain what happened. He discussed two
photographs that showed the parking lot with the black Nissan and a box truck with
Rash lying outside the passenger door and another that showed a cell phone next to
Rash. Horne collected the cell phone as evidence and gave it to Investigator Cook.
Horne explained he processed the black Nissan for evidence. Horne said the
windows of the vehicle were rolled up, but the doors were open, and the car was
running. Nothing outside the car drew his attention, except he “noticed there were
no bullet defects in the car.” Horne observed two deceased males from gunshot
wounds and learned the shootings took place inside the car. He also knew at least
three shots had been fired.
Horne also processed the vehicle and found shell casings. He found the first
shell casing behind the driver’s seat and the second under the driver’s seat. He
explained that Investigator Carey found a third shell casing consistent with the first
two, when he removed the vehicle seats for a court demonstration. He explained that
a revolver does not discharge casings, so they knew they were looking for a
semiautomatic. Horne testified they also found a duffel bag containing $3,600 in the
front passenger floorboard and “lots of blood in different areas of the vehicle.” He
did not find any marijuana at the scene.
They believed the shooter sat in the rear passenger seat, so they collected DNA
swabbing from that seat.
8 Horne testified that he was asked to photograph Jordan, collect a gunshot
residue kit on his hands, and collect DNA from inside his mouth for comparison
purposes. Horne testified that Jordan did not have any injuries. The DNA sample
and gunshot residue test were done per a signed consent, which was admitted into
evidence.
Horne prepared a search warrant for an address on Canyon Hills Drive, which
a judge signed. They executed the search warrant and looked for a firearm and
clothes. Horne described the evidence collected at the house and showed the jury
photos. Horne testified there was a white F-250 pickup truck in the driveway. Horne
discussed photographs of the truck and described a lifted white F-250 with a large
bumper and brush guard. In Jordan’s room there was a black energy drink can on the
nightstand, which had a hidden compartment where they found .2 ounces of
marijuana. Horne was unaware of two ounces of marijuana being found at the house.
In the top dresser drawer, they found a knife and .22 caliber GSG Firefly
semiautomatic pistol, which they collected and aligned with the shell casings found
in Smith’s car. Horne testified they found a magazine containing seven bullets. The
shell casings from the vehicle and ammunition pulled from Jordan’s gun were both
stamped with a “C” manufacturer’s logo. Horne said that in the closet, they located
a carboard box with a hoodie and pants. Horne processed Jordan’s clothes, and a
9 spot on the pants had a presumptive positive test for blood. They collected a sample
and sent it to the DPS lab for testing.
Testimony of Detective Raymond Adams
Raymond Adams (“Adams”) is a detective with the Conroe Police
Department, and on February 12, 2020, he was assigned to investigate the River
Bend Shopping Center shooting. His partner, Detective Benjamin Mitchell, also
responded to the scene. Adams spoke with Officer Tosto to find out where each
person had been in the vehicle. Adams spoke to the 9-1-1 caller, Frankie Boyd.
Adams explained he got Rash’s cell phone from the crime scene unit, which
recovered it from underneath Rash’s leg. Adams accessed the cell phone using a
passcode Boyd provided. Based on conversations with Boyd, Adams looked at
SnapChat messages and located messages from that day. Adams testified he was
most interested in SnapChat messages between Rash and someone with the
username “nickjordan00.” Adams explained those messages were from that date,
referenced meeting at the Whistle Stop, and were very recent. He testified that he
had a CSI photograph Rash’s conversation with nickjordan00. In the SnapChat
messages, nickjordan00 said he was driving a “lifted” or “jacked up” white truck.
The messages included vehicle descriptions, and Rash directed nickjordan00 to park
near a box truck on the south end of the parking lot. Adams explained the SnapChat
messages drew his focus to nickjordan00, because it was clear he was the buyer.
10 Adams sent an officer to the hospital to meet Smith, and that officer relayed a
suspect description by radio of “a single, white male in a white, lifted Ford truck.”
By that time, Adams had a username of nickjordan00, and a white male driving a
jacked-up Ford. Adams gave the SnapChat username to deputies from the
Montgomery County Violent Offenders Task Force to process. They also had
another detective look for surveillance video of the truck, and she found an image of
a white, “jacked-up” Ford. Adams testified they then forwarded nickjordan00 and a
white, jacked-up Ford truck to the Real Time Crime Center. The Real Time Crime
Center provided a possible match for the username, which was “Waymon Nicholas
Jordan with a birth date in 2000[,]” and “[t]hey did link a white Ford truck to him.”
Adams explained that the Real Time Crime Center provided a truck license plate,
and the vehicle was registered to Gerald Williams, who was listed as a contact on
bond paperwork for Jordan and probably a family member. The Real Time Crime
Center also provided two Willis addresses, one on Ranch Road and the other on
Canyon Hills Drive, so they sent teams to both addresses to look for the white truck.
Officers located the truck at the Canyon Hills address. The jury was shown a
photograph of the truck, and Adams explained that “the Montgomery County Real
Time Crime Center gave a license plate hit that had an image of the truck,” with “the
same rims as that still shot from Makeup Junkie. It has the same fender and door
decals, as well as a large, front/rear bumper and an in-bed toolbox.”
11 While Adams testified, photographs of the SnapChat messages between Rash
and nickjordan00 were admitted into evidence. Adams testified that Rash’s phone
showed “Nick Jordan” was associated with the username nickjordan00 and listed on
Rash’s “friend screen.” He testified that the messages began about 10 a.m. on
February 12, when Jordan asked Rash if he had two ounces of marijuana to sell. The
messages showed, and Adams testified, that Rash contacted Jordan around 3 p.m.
and gave him a price of $380.
Adams told the jury Rash asked Jordan to meet him at the Whistle Stop Café
and to park by the “semi” at the end of the parking lot, which was where they found
Smith’s car. Adams testified that Rash messaged Jordan he would be in a black
Nissan, and Jordan answered he was driving a “jacked up, white Ford.”
Adams testified that the Makeup Junkie surveillance video, which was played
for the jury, showed the black Nissan arrive and the white truck leave about two-
and-a-half minutes later. Adams explained another camera located in a different area
of the parking lot captured a white Ford truck with black rims and oversized bumpers
arrive at 4:44 p.m. driving north to south, and about 5:17 or 5:18, the black Nissan
passed in the same direction.
Adams testified that the white truck belonged to Jordan’s stepfather. Jordan
had a black, Chevrolet Cobalt, and they learned based on his cell phone data and
surveillance footage, he visited the same shopping center earlier that day but drove
12 the Chevrolet Cobalt. Adams said that the Chevrolet Cobalt was consistent with a
vehicle at the house when they executed the search warrant. Surveillance video
admitted also showed the Cobalt enter the shopping center at 10:37 a.m., and by
10:51 a.m., Jordan contacted Rash by SnapChat. Adams explained that Jordan and
Rash had met at the Whistle Stop before, and Jordan knew Rash liked to do deals
there. Messages showed about two weeks before the shooting, Jordan asked Rash if
he could give his information to someone who wanted to buy ounces, and Rash
trusted Jordan enough to vouch for him.
Testimony of Billy Ballard
Deputy Billy Ballard (“Ballard”) of the Montgomery County Sheriff’s Office
testified as a CSI and specialist in digital forensics. Ballard described the two types
of software and hardware they use to download cell phones. He described GrayKey
software as “more friendly with iPhones and Apple devices” that they used to break
passcodes. He explained that when the shooting happened, the Conroe Police
Department did not have this software, so he assisted Conroe Investigator Stoney
Cook with a device. Ballard collected the device from the scene and returned to the
lab where he used GrayKey to unlock the passcode. Cook did not know the owner’s
name but knew he was deceased and unable to provide a code. Ballard extracted raw
data from the device and returned the extraction to Cook, who had software to create
a report from the extracted data. Cook requested that Ballard perform a GrayKey
13 extraction on a second device pursuant to a search warrant. Ballard performed the
second extraction, and he released the raw data to Cook, who prepared a report.
Testimony of Stoney Cook
Stoney Cook (“Cook”), a Conroe Police Department Detective, testified about
his prior CSI work on this case. When Cook arrived at the Whistle Stop Café, he
immediately processed the cell phones. They collected phones from Smith, Rash,
York, and Frankie Boyd, and he performed full extractions for Smith’s, Rash’s, and
Boyd’s phones. Consistent with Ballard’s testimony, Cook testified that in February
2020, Conroe Police Department did not have GrayKey, but he knew that software
could be used to unlock iPhones, so he called Ballard for assistance to unlock York’s
phone and pull the raw data from it. Cook gave the reports he generated from the
phone downloads to Detective Adams.
Later, Cook received Jordan’s cell phone, which he downloaded by consent
or a search warrant using Cellebrite software. Cook explained that although he
successfully extracted Jordan’s phone, he had Ballard perform a second extraction
on Jordan’s phone under the consent and search warrant using GrayKey. Cook
testified that Ballard successfully extracted it and returned the data to him. Cook
took the Cellebrite extraction he did plus the data he received from Ballard and
combined them into one report. During Cook’s testimony, the trial court admitted
the report for Jordan’s phone.
14 Testimony of Forensic Pathologist Kathryn Pinneri
Board-certified forensic pathologist, Dr. Kathryn Pinneri (“Pinneri”), testified
about the autopsies she performed on York and Rash. Dr. Pinneri discussed the
reports she prepared for Rash’s and York’s autopsies, which were admitted into
evidence. Multiple photographs and x-rays were also admitted into evidence during
Pinneri’s testimony. The defense objected to two photos showing Rash’s and York’s
bodies at the scene and argued their probative value was outweighed by the
prejudicial effect. In overruling the objections, the trial court noted that the death
investigator from Dr. Pinneri’s office took the complained-of photographs, and they
were the only two photos of the deceased bodies offered. Pinneri testified that they
took many photographs but only introduced twelve.
Pinneri testified that on external examination, she found a gunshot wound by
York’s right ear. Pinneri explained she did not find any firearm residue on York’s
skin, and it appeared the bullet went through the collar of his sweatshirt first. Pinneri
testified that even if you did not find gunshot residue or stippling, the gun could still
be fired at close range. Clothing or thick hair, which York had, might prevent firearm
residue on someone. She “recovered the projectile from the left side of the back of
the brain[.]” Pinneri said the bullet went from right to the left and from front of the
body to the back. Pinneri testified, and her report stated, that York’s cause of death
was a “penetrating gunshot wound to the head.” Her report also noted the manner of
15 death was homicide. She said that the bullet’s trajectory through the brain resulted
in rapid death, because it went through “major structures.” Pinneri explained that the
gun’s muzzle had to be on the right side of York’s body, and it had to be towards the
front of York based on the bullet’s direction, although she could not say how York
was holding his head when the bullet entered. York’s toxicology results were
positive for marijuana.
As to Rash, Pinneri testified that on external examination, she found a gunshot
wound to the right side of his head towards the back of the skull. Pinneri testified
she “recovered a bullet and a bunch of fragments from right under the entrance
wound . . . as well as from the left, frontal lobe[.]” She explained the trajectory was
from back to front and “went a little bit upward, and it went from the right side of
the body to the left side of the body.” Pinneri said that Rash’s death would have been
“fairly instantaneous” as the bullet went through the brain stem. Pinneri noted that
Rash was blind in his left eye, and if he had turned his head to the left, he could not
see someone in the back seat. Pinneri did not find firearm residue on Rash’s skin,
but based on the amount of hair, she did not expect to find any. She explained that
did not mean he was not shot at close proximity. Rash also testified positive for
marijuana. Her report revealed Rash’s manner of death was homicide, and his cause
of death was a “[p]enetrating gunshot wound of the head[.]” Pinneri testified that
16 Rash would have been straight or turned right if the shooter was in the back seat, but
she could not know with certainty where Rash held his head when he was shot.
Testimony of Shane Windsor
Forensic Scientist Shane Windsor (“Windsor”) testified that he works for the
Texas Department of Public Safety Crime Laboratory Division in the Firearms and
Toolmarks Section. Windsor was the verifying analyst. In this case, a firearm, two
fired bullet fragments, and many smaller metal fragments were submitted to the DPS
lab. They tested a .22 caliber pistol. They were asked to determine the firearm’s
functionality and if the two fired fragments and multiple smaller metal fragments
could have been fired from it.
Windsor testified that he “agreed with the original analyst and his conclusions
that we could not identify or eliminate the two fired bullets as having come from this
particular firearm.” There were insufficient marks on the bullets’ surface to allow
for a more conclusive determination. Windsor testified there was an agreement in
class characteristics, which meant: (1) the width of lands and grooves were the same;
(2) the direction of the twist was the same; and (3) one bullet had an entire surface
to use, so the number of lands and grooves was the same. The other fragment was
not intact so they could not determine the complete number of lands and grooves.
Windsor determined that the magazine on the gun held eleven bullets–ten in the
magazine plus one in the chamber. The gun operated correctly, which meant there
17 were no problems with the safeties and every time they squeezed the trigger, the
hammer fell, and the firearm discharged. Windsor testified that the ejector on this
firearm is on the left-hand side, so the cartridge case would eject to the right.
Testimony of Detective Benjamin Mitchell
Detective Benjamin Mitchell (“Mitchell”) has collected evidence from many
crime scenes. Responding to Windsor’s testimony, Mitchell explained that shell
casings eject with velocity, and if the spent casing strikes an object, it can rebound
or bounce. He noted that how the gun is held also impacts the direction the casing
ejects, and he was unaware of any consistency in shell casing trajectory.
On February 12, 2020, he received a call about a shooting and responded to
the Whistle Stop Café. Mitchell testified he investigated the case with his partner,
Detective Adams. When Mitchell responded to the scene, he collected information,
talked to witnesses, obtained videos, obtained information from other teams like
crime scene and dispatch, sent investigators to talk to witnesses and victims, and
coordinated that information. As other people gathered information, they relayed it
to Mitchell and Adams. Mitchell had information from many sources, including
CSIs, detectives talking to Smith at the hospital, Real Time Crime Center, detectives
getting surveillance video, and cell phone data.
While working the scene, Mitchell received information that a white, “jacked-
up” Ford truck was spotted on location. Mitchell saw the SnapChat messages
18 between nickjordan00 and Rash. Mitchell watched the Makeup Junkie surveillance
video and saw the white Ford truck. He testified that surveillance captured the white
Ford truck on the southern end of the parking lot closer to the Nissan and box truck.
Another surveillance camera on the north end of the parking lot captured Officer
Tosto and the white Ford truck. Mitchell said the white truck on the Makeup Junkie
video matched other information Smith provided at the hospital, and Mitchell saw
information about a jacked-up white Ford in the SnapChat conversations between
Rash and nickjordan00. No other trucks matching that description were seen on
surveillance footage for the relevant timeframe, so Mitchell believed that was the
suspect vehicle.
Mitchell described the Whistle Stop scene at 6:30 or 7 p.m. as being “all-
hands-on deck” with investigators, patrol, outside law enforcement agencies, the
Marshall’s office, EMS, medical examiners, DAs, and Conroe PD administration –
all with the single goal “[t]o solve this homicide[.]” Mitchell coordinated that effort.
Mitchell listed the information he learned from the Real Time Crime Center while
he was still at the Whistle Stop scene, including: (1) a match was made between a
person named Waymon Nicholas Jordan with a birth year of 2000 and a jacked-up
white Ford truck; (2) a license plate reader captured a picture of the truck, which was
compared to the Makeup Junkie video from the time of the shooting; (3) two
addresses in the Willis area; and (4) one address on Canyon Hills. When Mitchell
19 received the addresses, they sent investigators in unmarked cars to check for a
vehicle matching the description. At the Canyon Hills address, investigators found
a matching white Ford truck in the driveway.
After locating the white truck, law enforcement moved to a Kroger parking
lot in Willis and investigators watched the Canyon Hills address and observed an
unknown white male and female leave the residence in a car. Based on the known
information, the male matched the description. Specifically, he was white and looked
like he could be in his 20s, consistent with a birth year of 2000, and they believed
the “00” at the end of the SnapChat username to be a birth year.
Undercover officers followed the car from the Canyon Hills address and
relayed their position. That car stopped at a McDonald’s across the street “very
close” to the Kroger where the officers met. They approached the vehicle at
McDonald’s to identify the people inside. Mitchell testified stopping them in the
drive-through afforded a “tactical advantage” over trying to enter someone’s home
where they could barricade with firearms and evidence, which is “a lot more
dangerous.” About five hours elapsed since Boyd’s 9-1-1 call to officers
approaching this person at McDonald’s. Mitchell testified that given the Whistle
Stop scene, they were concerned for officer safety, other victims, evidence
destruction, and that the suspect may flee or endanger others.
20 Mitchell testified that bodycam footage from McDonald’s showed no lights,
no sirens, no drawn weapons, and that an officer “casually” approached the
passenger side of the vehicle stopped in the drive-through and asked to speak to the
person. Mitchell said a white male in the passenger seat “identified himself as Nick
Jordan, later identified as Waymon Nicholas Jordan[,]” and before Mitchell left the
McDonald’s parking lot, he also had a SnapChat name for that person,
“nickjordan00.” Mitchell testified that information matched SnapChat messages he
photographed from Rash’s phone. Mitchell testified that when they identified Jordan
at McDonald’s, they already had the following information: Rash’s SnapChat
messages telling this person to meet at the end of the Whistle Stop parking lot next
to a semitruck, which is where they found the victims’ vehicle; that timeframe
matched the information Boyd provided and the surveillance video; and the white
Ford truck at the Canyon Hills address matched the one on Makeup Junkie
surveillance at the scene. They had also confirmed that Waymon Nicholas Jordan
was born in 2000.
Mitchell said that when he approached Jordan at the McDonald’s drive-
through, Jordan was “calm, kind of casual[]” and “not real nervous considering the
circumstances.” Mitchell said even with all the information they had, the
investigation was “still beginning[,]” and they had “[a] lot” to do. Mitchell wanted
to give Jordan a chance to provide a statement and wanted a statement from the
21 female with him since they did not know if she was involved. Mitchell did not know
at that time whether: Jordan’s phone contained messages corresponding to the ones
in Rash’s phone; Jordan had an alibi; someone else may have been driving the truck;
or whether someone else might have used his SnapChat. They were investigating
those things, and the next step in the investigation was to speak with him.
Mitchell testified that when he spoke to Jordan, there was a large officer
presence, since they were staged at the Kroger across the street. They chose that area
because it was near the Canyon Hills address. Mitchell explained that other police
officers and prosecutors at McDonald’s stood at a distance and allowed the
investigators to speak with Jordan. He characterized Jordan’s interaction with the
smaller group of officers as a “casual conversation.” Mitchell testified that when
asked to go to the police station, Jordan said he did not want to several times. After
Detective Adams could not change Jordan’s mind, Mitchell tried to “encourage” so
Jordan knew “it was for the importance of this investigation.” Mitchell explained,
“He was aware that we were conducting an investigation and I informed him it would
behoove him to speak with me and we could not continue a thorough conversation
while standing in the parking lot of the drive-through at McDonald’s.” After Jordan
again said he did not want to go to the police station and wanted to go home, Mitchell
told Jordan it was serious, and he needed to come talk to them. Jordan finally agreed
22 but said, “If I don’t have a choice.” Mitchell testified that Jordan was not free to
leave at that point.
Mitchell testified that they had interview rooms at the police station and why
they were a better place to speak with someone. Mitchell testified that from
McDonald’s, the interview room at the police station was “under a ten-minute
drive[,]” and “two exits from the intersection we are at.” Mitchell said it seemed
reasonable to interview Jordan at the police station. He testified Jordan was not
handcuffed, shackled, told he was under arrest, or interrogated when the officer
transported him to the police station. They put Jordan in an interview room about six
hours after the shooting. Mitchell testified that before asking Jordan any questions
at the police station about the Whistle Stop incident, he read Jordan his Miranda
warnings. After Mitchell read the warnings, he asked Jordan if he understood them,
and Mitchell’s partner again made sure he understood. Mitchell believed that Jordan
understood his rights, voluntarily waived those rights, and provided a statement.
During Mitchell’s testimony the trial court admitted bodycam of the
interaction at McDonald’s and Jordan’s subsequent interview with police at the
station. Jordan objected to his interview and noted objections previously made
during a pretrial suppression hearing that taking him from McDonald’s to the police
station constituted an unlawful arrest without probable cause. Mitchell testified that
when he began Jordan’s interview, he already knew: (1) about the SnapChat
23 messages; (2) about the white truck; (3) about the Canyon Hills address; (4) about
the SnapChat username; (5) that Rash told the person in the SnapChat to meet next
to the semi at the River Bend Shopping Center; and (6) that is where Rash’s body
was found.
When Mitchell asked about the Whistle Stop incident, Jordan told him he
never used SnapChat. Mitchell did not believe him, because he provided his
username before Mitchell asked the question, and it was inconsistent with the
messages on Rash’s phone. Jordan denied driving his stepfather’s truck and said he
never left the house that day. As the video played for the jury, Mitchell was asked
without objection multiple times whether Jordan was being honest, and he repeatedly
testified Jordan was not being honest.
Jordan told Mitchell during his interview that Rash and Smith started yelling
and cursing at him, and York jumped in and grabbed him. Jordan told Mitchell he
shot York first in the right side of the head near the temple, which Mitchell explained
was inconsistent with him actively struggling with York, but Mitchell did not know
if York grabbed Jordan.
Mitchell said that from the driver’s seat, Smith could not reach Jordan without
crossing through the center of the car, and Jordan shot Smith in the right cheek.
Mitchell testified Rash was wearing his seatbelt, his phone was in his lap, and he did
not have a weapon. Mitchell said it would have been difficult for Rash to see Jordan
24 if he was blind in his left eye, and Jordan shot Rash in the back of the head on the
right side. Mitchell testified that in his professional opinion and based on those
things, Rash did not pose an immediate threat to Jordan. Jordan told Mitchell he
grabbed the marijuana from the center console before exiting the car and never saw
a gun. Mitchell testified that based on his training and experience, searching a car
for marijuana after shooting three people was inconsistent with self-defense.
On cross-examination, defense counsel also asked about Jordan’s
truthfulness. Mitchell responded that Jordan was not truthful during the interview,
and he had to work on Jordan to get the story out. Mitchell testified that Jordan said,
“You got me. I did it.” Mitchell believed Jordan was truthful when he said that.
Mitchell testified that Jordan “smirked and then said, ‘They tried to rob me, yes.’”
In Mitchell’s opinion, however, it appeared inconsistent with a robbery. Mitchell
testified that Jordan spent three hours “deceiving and minimizing” during the
interview.
Mitchell testified they found the gun Jordan used in a drawer, and they found
$380 in the pants Jordan said he wore that they collected from his room. Mitchell
explained that Jordan told them he hid the marijuana in the woods behind his house,
but officers did not look for it. An aerial photo admitted during his testimony showed
the wooded area was large.
25 Testimony of Paige Hadley
Jordan’s former girlfriend, Paige Hadley (“Hadley”), testified that Jordan
went by the name “Nick,” and his SnapChat username was “nickjordan00.” She said
that on February 12, 2020, she gave his SnapChat username to police. That night,
she went to Jordan’s house where they smoked marijuana and watched a movie and
then went to McDonald’s. Hadley estimated Jordan had an ounce of marijuana, and
they only smoked a small amount. During Hadley’s testimony, her text messages
with Jordan were admitted into evidence, which she discussed. The messages
showed that she offered to buy marijuana on the way to Jordan’s house that night,
but he told her he already had some. Hadley explained this surprised her, because he
was unemployed, and it was uncommon for him to buy marijuana. While they dated,
he did not have a regular source of income.
When she arrived at Jordan’s house that night, he looked like “a deer in the
headlights.” She remembered that Jordan was quiet but just thought he had a bad
day. Hadley said she saw news reports about the shooting, but when she mentioned
them, she did not see Jordan react. Jordan did not tell her he was robbed earlier that
day.
Testimony of Jeremy Thomas
Jeremy Thomas (“Thomas”) is an investigator with the Montgomery County
District Attorney’s Office in the Digital Forensic Unit. He is certified in Cellebrite
26 software used to extract cell phone data. Thomas testified that he is familiar with
GrayKey and has used it. Thomas described the information contained in the report
prepared from Jordan’s cell phone data. Thomas discussed an exhibit that included
aerial maps and GPS data points pulled from Jordan’s phone with times and his
locations throughout the day. Thomas testified to the following timeline, including
reading certain messages into the record, which was based on information pulled
from Jordan’s phone pursuant to a search warrant:
• 2:52 p.m. – Jordan starts a SnapChat conversation with Rash regarding how much weed and the price Rash quoted;
• 2:55 p.m. – Jordan’s conversation occurred while he was at his house and ends at this time;
• 3:06 p.m. – Jordan starts searching on his phone for how far away you can hear a handgun;
• 3:31 p.m. – Jordan resumes his SnapChat conversation with Rash as read into the record by Thomas;
• 4:46 p.m. – Jordan and Rash message about when they were leaving to meet up, and Jordan was still in his neighborhood despite telling Rash he was leaving at 4:29 p.m.;
• 4:56 p.m. – Jordan receives a text message from his mom asking if he has his stepdad’s truck and where he is;
• 5:13 p.m. – Jordan is at the Whistle Stop;
• 5:18 p.m. – Jordan’s phone was still near the Whistle Stop;
• 5:21 p.m. – Jordan’s phone was north of the Whistle Stop strip center, which was consistent with the direction of his home in Willis;
27 • 5:35 p.m. – Jordan’s phone was back at his residence; and
• 9:55 p.m. – there was a Google search on Jordan’s phone for a shooting in Conroe, Texas while Jordan was at his house.
Testimony of Eric Devlin
Eric Devlin (“Devlin”) testified for the defense and is the Managing Director
of Lone Star Forensic Group, a digital forensics company. Devlin testified he
reviewed reports and extractions for Jordan’s, Rash’s, Smith’s, Boyd’s, and York’s
phones. Devlin did not examine the devices himself, instead he verified the integrity
of the extractions he received and worked with those.
Devlin said that when he reviewed York’s phone, he discovered evidence of
marijuana sales. Devlin disputed that Rash only sold marijuana based on the cell
phone information, although he denied seeing evidence that Rash sold
methamphetamine, crack, PCP, fentanyl, or heroin. He also disagreed that Rash had
a limited customer base of family and friends and testified it “appeared to be a larger
market” that “was ongoing.” Finally, Devlin testified that phone evidence showed
Rash planned to buy several thousand dollars’ worth of marijuana wax after his deal
with Jordan that same day. Devlin testified that the $3,600 found at the scene aligned
with this planned purchase.
28 Testimony of Forensic Psychologist Wendy Elliott
Dr. Wendy Elliott (“Elliott”) is a forensic psychologist who testified about
cognitive brain development, a recognized field within psychology. Elliott testified
that a young, male brain is different from a thirty-year-old brain. Elliott explained
that the prefrontal cortex responsible for decision-making is well developed by age
sixteen or seventeen, but its connection to the rest of the brain is not. She described
it as having “a brain that has a really, really strong accelerator and not a great brake
until early to mid-20’s” when “the brain really has solidified its connections and all
of those parts of the brain are working together in concert and we see an
improvement in decision-making.” Elliott did not evaluate Jordan and said her
testimony was about average males that age who are legally adults but still
developing cognitively. The only information she had specific to Jordan was his age
and that he was charged with capital murder. She testified that research shows
adolescents and young adults make poorer decisions in the presence of peers than
adults.
Testimony of Angel Baird
Angel Baird, a friend of Jordan’s mother, testified that she has known Jordan
for four or five years. She testified she had a good opinion of him, and he had a good
reputation in the community as being law-abiding. Yet, she knew Jordan was
29 previously arrested for marijuana and learned he was illegally carrying a firearm
when this happened.
Other Evidence
Jordan stipulated that DNA tests identified Rash’s blood on the pants he wore
that evening. That stipulation was read into the record for the jury, and a copy was
admitted into evidence. Additional evidence at trial included, among other things:
photographs of the scene and victims; autopsy x-rays; copies of SnapChat messages
between Jordan and Rash; a cell phone report from the download of Jordan’s phone;
surveillance video from businesses in the strip center where the shooting happened;
Tosto’s bodycam video from the Whistle Stop scene; Rash’s and York’s autopsy
reports; text messages between Jordan and Hadley; maps with marked GPS location
data pulled from Jordan’s phone; photographs of the white Ford F-250; bond
paperwork for Jordan’s prior marijuana offense with his stepfather’s contact
information; and a video of Jordan’s police interview.
ANALYSIS
Issues One and Two: Sufficiency of the Evidence
In issues one and two, Jordan complains the evidence was insufficient to
support the jury’s guilty verdict and that the trial court erred in denying his motion
for directed verdict. Specifically, he complains that no evidence was introduced to
show he intended to cause the death of York and Rash. We address these issues
30 together since we treat a complaint about the denial of a motion for directed verdict
“as a challenge to the legal sufficiency of the evidence.” See Williams v. State, 937
S.W.2d 479, 482 (Tex. Crim. App. 1996) (citation omitted); Andrus v. State, 495
S.W.3d 300, 304 (Tex. App.—Beaumont 2016, no pet.) (citation omitted).
In evaluating legal sufficiency of the evidence to prove the charged offense,
we view all 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 crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–19
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Metcalf
v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). Under the Jackson standard,
we defer to the jury’s responsibility to fairly resolve conflicting testimony, weigh
the evidence, and draw reasonable inferences from basic facts to ultimate
facts. See Hooper, 214 S.W.3d at 13. The jury as factfinder is the sole judge of the
weight of the evidence and witnesses’ credibility, and it may believe all, some, or
none of the testimony presented by the parties. Metcalf, 597 S.W.3d at 855 (citations
omitted). We do not reweigh the evidence or determine the credibility of the
evidence, nor do we substitute our judgment for the factfinder’s. See Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). “Each fact need not point
directly and independently to a defendant’s guilt, as long as the cumulative force of
31 all the incriminating circumstances is sufficient to support the conviction.” Balderas
v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (citation omitted).
A person commits capital murder if he “intentionally or knowingly causes the
death of an individual[]” and “murders more than one person . . . during the same
criminal transaction[.]” Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(7)(A). The
indictment alleged that Jordan “intentionally or knowingly cause[d] the death of . . .
Devin Rash, by [s]hooting Devin Rash with a firearm, and during the same criminal
transaction, did then and there intentionally or knowingly cause the death of . . .
Ryan York, by [s]hooting Ryan York with a firearm[.]” The court charged the jury
on capital murder and the lesser-included offense of murder. See id. The court also
charged the jury on self-defense as justification for the offense. Finally, the court
instructed the jury that they could find Jordan was justified in using deadly force to
defend himself: (1) against both complainants, which would result in a “not guilty”
verdict; (2) one complainant but not the other, which would mean a guilty verdict
for the lesser-included offense of murder; or (3) against neither complainant, which
would result in a guilty verdict for capital murder.
Texas recognizes the defense of justification, which excludes criminal
responsibility for otherwise criminal behavior. See id. § 9.02. Self-defense is one
type of justification. See id. § 9.31. “[A] person is justified in using force against
another when and to the degree the actor reasonably believes the force is
32 immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.” Id. § 9.31(a).
[A] defendant bears the burden of production, which requires the production of some evidence that supports the particular defense. Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. The 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. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory.
Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton v. State,
804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991)); see also Valverde v. State, 490
S.W.3d 526, 527–28 (Tex. App.—San Antonio 2016, pet. ref’d). In reviewing a
challenge to the sufficiency of the evidence to support the jury’s implicit rejection
of self-defense,
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 (citations omitted). Self-defense is a fact issue the jury
determines, and it is free to accept or reject any defensive evidence on the
issue. See id. at 913–14. Defensive evidence consistent with the scene’s physical
evidence will not render the State’s evidence insufficient since evidentiary
credibility determinations are solely within the jury’s province, and the jury is free 33 to accept or reject the defensive evidence. See Montemayor v. State, 55 S.W.3d 78,
82 (Tex. App.—Austin 2001, pet ref’d). A jury’s finding of guilt constitutes an
implicit finding that it rejected the defensive theory. See id.; see also Valverde, 490
S.W.3d at 528.
Jordan did not dispute that he killed Rash and York, rather the issue is whether
he was justified in doing so. The evidence supporting the claim of self-defense was
based on what Jordan told detectives during his interview as recounted by Mitchell’s
testimony and the video confession–that they cursed at him, York grabbed him, and
they tried to rob him.
The jury heard and saw other evidence that contradicted Jordan’s claims.
Mitchell testified that shooting York first in the right side of his head was
inconsistent with Jordan’s actively struggling with York. Mitchell also said that
based on his experience, Jordan’s searching a car for marijuana after shooting three
people was inconsistent with a self-defense claim. The jury heard witnesses testify
that Rash was still in his seatbelt when they found him dead at the scene and $380
was found in Jordan’s pants. Smith also told the jury they had no plans to rob Jordan.
Jordan told detectives he did not see a weapon, and police did not find any weapons
in the car. The jury was free to disbelieve Jordan’s version of events and reject his
justification of self-defense. See Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at
913–14; Valverde, 490 S.W.3d at 528; Montemayor, 55 S.W.3d at 82.
34 We turn to Jordan’s argument that there was no evidence introduced at trial
that he intended to kill York and Rash. A firearm is statutorily defined as a deadly
weapon. Tex. Penal Code Ann. § 1.07(17)(A). A jury can infer the intent to kill when
a deadly weapon is used unless it would be unreasonable to infer that death or serious
bodily injury could result from using the weapon. Cavazos v. State, 382 S.W.3d 377,
384 (Tex. Crim. App. 2012); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App.
1996). The most obvious and easiest cases to prove intent to kill, are those in which
a firearm was used and fired at a person. Godsey v. State, 719 S.W.2d 578, 581 (Tex.
Crim. App. 1986). Jordan used a firearm when he fired at York and Rash, shooting
them both in the head, thus the jury was free to infer the requisite intent to kill. See
Cavazos, 382 S.W.3d at 384; Jones, 944 S.W.2d at 647; Godsey, 719 S.W.2d at 581.
A jury may consider events that occurred before, during, and after the commission
of the offense. Pitonyak v. State, 253 S.W.3d 834, 844 (Tex. App.—Austin 2008,
pet. ref’d). These events included Jordan’s internet search a few hours before the
murders for how far away you can hear a handgun and him searching a car for
marijuana after killing two people and seriously injuring another by shooting them
in the head with a firearm.
Viewing all the evidence in the light most favorable to the prosecution, we
hold that a rational jury could have found that Jordan intentionally or knowingly
killed Rash and York in a single transaction beyond a reasonable doubt. See Jackson,
35 443 U.S. at 318–19; Metcalf, 597 S.W.3d at 855; Hooper, 214 S.W.3d at 13; see also
Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(7)(A)(1). We also hold a rational
jury could have found against Jordan on his self-defense claim beyond a reasonable
doubt. See Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913–14; Valverde, 490
S.W.3d at 527–28. Thus, the evidence was legally sufficient to support the jury’s
guilty verdict for the offense of capital murder as charged in the indictment. We
overrule issues one and two.
Issues Three, Four, Five, and Eight: Evidentiary Rulings
In issues three, four, five, and eight, Jordan challenges the trial court’s
evidentiary rulings.
Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion and must uphold the trial court’s ruling if it was “within the zone of
reasonable disagreement.” Wells v. State, 611 S.W.3d 396, 427 (Tex. Crim. App.
2020) (citation omitted). A trial court abuses its discretion if it acts without reference
to any guiding rules and principles or acts arbitrarily or unreasonably. Rhomer v.
State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). We uphold the trial court’s
decision if correct on any theory of law applicable to the case. De La Paz v. State,
279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Osbourn v. State, 92 S.W.3d 531, 538
(Tex. Crim. App. 2002). If the trial court erred in admitting or excluding evidence,
36 then we generally apply the harm standard in Texas Rule of Appellate Procedure
44.2(b), which requires us to disregard errors that do not affect substantial
rights. See Tex. R. App. P. 44.2(b); see also Walters v. State, 247 S.W.3d 204, 218–
19 (Tex. Crim. App. 2007) (citation omitted).
Admission of 9-1-1 Call
In issue three, Jordan complains the trial court erred by admitting Boyd’s 9-
1-1 call over his objection that it violated his right to confrontation. In support of
this issue, Jordan contends Boyd was not the victim. The State counters that the 9-
1-1 recording was admissible as a nontestimonial statement under Davis v.
Washington, 547 U.S. 813, 822 (2006).
The Sixth Amendment’s Confrontation Clause affords an accused the right to
confront witnesses in criminal prosecutions. U.S. CONST. amend. VI. The
Confrontation Clause prohibits admitting testimonial hearsay statements unless the
prosecution can demonstrate that the out-of-court declarant is unavailable to testify,
and the defendant has had a prior opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 59 (2004); De La Paz v. State, 273 S.W.3d
671, 680 (Tex. Crim. App. 2008). Whether a statement is testimonial or non-
testimonial is a question of law that we review de novo. See De La Paz, 273 S.W.3d
at 680; Cook v. State, 199 S.W.3d 495, 497 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) (stating that we review de novo trial court’s ruling that admission of 911
37 tape did not violate rights under Confrontation Clause); see also Paulette v. State,
No. 09-20-00027-CR, 2022 WL 107160, at *12 (Tex. App.—Beaumont Jan. 12,
2022, pet. ref’d) (mem. op., not designated for publication).
We focus on the objective purpose of the interview or interrogation, not the
declarant’s expectations, when determining whether a hearsay statement is
“testimonial.” See De La Paz, 273 S.W.3d at 680 (quoting Davis, 547 U.S. at 822–
23) (other citation omitted). In Davis v. Washington, the Supreme Court explained:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
547 U.S. at 822; see also De La Paz, 273 S.W.3d at 680 (citation omitted).
Consistent with this, “[s]tatements made to police during contact initiated by a
witness at the beginning of an investigation are generally not considered
testimonial.” Cook, 199 S.W.3d at 498 (citation omitted). Usually, 911 calls initiated
to summon police assistance are “nontestimonial because they are ‘a cry for help’ or
‘the provision of information enabling officers immediately to end a threatening
situation.’” Guzman v. State, No. 02-18-00332-CR, 2019 WL 2223213, at *2 (Tex.
App.—Fort Worth May 23, 2019, no pet.) (mem. op., not designated for publication)
(quoting Davis, 547 U.S. at 832) (other citations omitted).
38 We consider the following non-exhaustive list of factors when determining
whether statements were made during an ongoing emergency:
1) whether the situation was still in progress; 2) whether the questions sought to determine what is presently happening as opposed to what has happened in the past; 3) whether the primary purpose of the interrogation was to render aid rather than to memorialize a possible crime; 4) whether the questioning was conducted in a separate room, away from the alleged attacker; and 5) whether the events were deliberately recounted in a step-by-step fashion.
Vinson v. State, 252 S.W.3d 336, 339 (Tex. Crim. App. 2008) (citations omitted).
Once a defendant objects to a statement as violating the Confrontation Clause, the
burden shifts to the State to establish the statement (1) did not contain testimonial
hearsay, or (2) contained testimonial hearsay but was nevertheless admissible
under Crawford. De La Paz, 273 S.W.3d at 680–81. At trial, the State argued the 9-
1-1 call was nontestimonial.
The record shows that Boyd called 9-1-1 on February 12, 2020, and the call
lasted a little over eleven minutes. During the call, Boyd spoke with the 9-1-1
operator and EMS personnel and reported the location of the emergency. Boyd stated
that “two people, I think three have been shot,” and “my friend just called me, he’s
there with my boyfriend and another friend, and he said he didn’t know what to do.”
She explained her friend “was panicking,” so she told him that she would call 9-1-
1. Boyd told the operator that “someone got in his car and shot them,” and her friends
were in “a black Nissan.” When the operator asked for a phone number for her
39 boyfriend, Boyd answered that “he’s not responding apparently, so he’s not going to
answer.” Boyd sounded distressed, was crying, and breathing heavily. Boyd
explained that she was on her way to the location. Boyd tearfully asks, “Can you just
please send somebody, please?”
Once the 9-1-1 operator patched EMS into the call, Boyd repeated to EMS
that her friends had been shot, and two were unresponsive. EMS told Boyd to “take
a deep breath” and assured her “help is on the way.” When she told EMS she was
“about to pull into the parking lot[,]” EMS instructed, “I don’t want you to pull into
the parking lot. I don’t want you to put yourself in any danger.” EMS asked the
location of the injuries and if she knew where the assailant went, but Boyd did not
know. EMS advised, “The paramedics are coming to you as fast as they safely can
with their lights and sirens.”
Boyd advised the operator where she was parked and that she saw the police
arrive. The operator is heard repeatedly telling Boyd to stay away from the scene,
while Boyd is heard crying. The operator also asked if Boyd knew who the men were
meeting, but she did not. Boyd asked, “When are the ambulances supposed to be
here? They’re not here yet.” The operator advised, “They are responding as fast as
they can safely[,]” and “we have as many people coming to help as we can.” The
operator instructed Boyd not to call family members since officers needed to secure
the scene.
40 To determine whether these statements were made under circumstances
objectively indicating the primary purpose was to enable police to meet an ongoing
emergency, we apply the non-exclusive factors set forth in Davis and Vinson. See
Davis, 547 U.S. at 826–28; Vinson, 252 S.W.3d at 339. As to the first factor, when
Boyd called, the situation was unfolding, police had not secured the scene, and EMS
had not arrived. She relayed the information Smith provided, which was that all three
were shot, he was bleeding, and the other two were unresponsive, but she did not
know the extent of the injuries. Further reflecting the situation was ongoing, EMS
told her not to put herself in danger, which indicated they did not know if the shooter
was still at the scene. As for the second and third factors, although the operator and
EMS inquired about how the incident happened, they sought to determine the current
condition of the individuals and how many there were to effectively render aid. They
repeatedly assured Boyd help was coming as fast as safely possible with “lights and
sirens.” As to the fourth factor, Boyd made the call, the interaction occurred entirely
over the phone, and there was no questioning in a “separate room.” Finally,
regarding the fifth factor, the events were not recounted in a step-by-step fashion.
Boyd frantically pleaded for help throughout the call and provided what information
she had when asked.
Applying the non-exclusive factors above and viewing the evidence
objectively, we conclude that Boyd’s statements in the 9-1-1 call were made “under
41 circumstances objectively indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.” See Davis, 547 U.S. at
822, 826–28; Vinson, 252 S.W.3d at 339. Thus, we hold the 9-1-1 call was
nontestimonial in nature, and the trial court did not err by admitting it. See Davis,
547 U.S. at 822, 826–28; Vinson, 252 S.W.3d at 339.
We note that Jordan argues that Boyd was not a victim and attempts to
distinguish it from other cases that concluded statements were nontestimonial in
nature and cites Gutierrez v. State, 516 S.W.3d 593 (Tex. App.—Houston [1st Dist.]
2017, pet. ref’d). Yet, in Gutierrez, the court’s analysis did not depend on whether a
victim made the statements, instead the court focused on “whether the primary,
objective purpose of the call and the statements were to report an ongoing
emergency.” Id. at 598 (citations omitted). The determining factor was that the
statements “were concerned with the details of the offense, not an ongoing
emergency.” Id. at 599. We are unaware of any authority holding that a
determination of a statement’s testimonial nature depends on the reporter’s victim
status nor does Jordan cite any. We can think of many times when non-victims call
9-1-1 seeking aid for ongoing emergencies, including when victims are unconscious
or unable. To render those statements testimonial based on victim status alone would
have far-reaching ramifications that contradict established precedent which focuses
objectively on the call’s primary purpose of seeking to render aid in an ongoing
42 emergency. See Davis, 547 U.S. at 822, 826–27; Vinson, 252 S.W.3d at 339. We
overrule issue three.
Admission of Bodycam Footage and Photographs
In issues four and five, Jordan complains about the trial court’s admission of
Tosto’s bodycam footage of the scene and victims, a still photo of Smith talking to
EMS with blood on his head taken from bodycam footage, and photographs taken
by the medical examiner’s office of Rash’s and York’s bodies lying on the ground
with blood on their clothes and heads. For each complained-of exhibit, Jordan
objected under Rule 403 that the prejudicial impact outweighed the probative value.
See Tex. R. Evid. 403.
Evidence having any tendency to make the existence of any fact of
consequence to the determination of the action more probable or less probable than
it would be without the evidence is relevant. See id. 401. Rule 403 permits a trial
court to exclude relevant evidence “if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Id.
403. Rule 403 favors admitting relevant evidence and “carries a presumption that
relevant evidence will be more probative than prejudicial.” Davis v. State, 329
S.W.3d 798, 806 (Tex. Crim. App. 2010) (citation omitted).
43 Admissibility of photographs is within the trial court’s sound
discretion. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003). If the
trial court’s ruling falls within the zone of reasonable disagreement, it does not abuse
its discretion. De La Paz, 279 S.W.3d at 343–44. In determining whether the
probative value of photographs is substantially outweighed by the danger of unfair
prejudice, we consider: the number of exhibits offered; their gruesomeness; their
detail; their size; whether they are in color; whether they are close up; whether the
body depicted is clothed; the availability of other means of proof; and other
circumstances unique to the individual case. See Hayes v. State, 85 S.W.3d 809, 815
(Tex. Crim. App. 2002). A trial court does not err merely because it admits gruesome
photographs. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995).
Photographs are “powerful visual evidence, probative of various aspects” of the
offense “including the brutality and heinousness of the offense.” Id.
The bodycam was highly probative as it showed Tosto arriving on scene and
locating the vehicle, the victim’s location in the car, the victims’ head wounds, Rash
still wearing a seatbelt, and life-saving measures. The two colored photographs of
Rash’s and York’s clothed bodies at the scene taken by the medical examiner’s office
were probative to show the injuries and clothes they were wearing. The photographs
may be “somewhat gruesome, but these results were apparently what appellant
himself intended[]” when he shot three men in the head. See Kendrick v. State, 942
44 S.W.2d 120, 126 (Tex. App.—Beaumont 1997, no pet.) (noting same in context of
photographs depicting victims’ charred remains). The same is true for the still
photograph of Smith speaking to EMS with a significant head injury, especially
considering the defense’s challenge to his credibility on cross-examination based on
gaps in his memory.
The trial court was within the zone of reasonable disagreement when it
determined the complained-of evidence’s probative value was not outweighed by
unfair prejudice to Jordan. See Tex. R. Evid. 403; Sonnier, 913 S.W.2d at 519;
Kendrick, 942 S.W.2d at 126. We overrule issues four and five.
Admission of Mitchell’s Opinion Testimony on Jordan’s Truthfulness
In issue eight, Jordan challenges the trial court’s admission of Detective
Mitchell’s opinion testimony that Jordan was untruthful. Jordan complains that the
State improperly asked whether Mitchell believed Rash, York, and Smith tried to
rob Jordan, and about Mitchell’s response that he did not believe that. Jordan
objected at trial that Mitchell was not in the position to give an opinion because he
was not in the car at the time and did not have personal knowledge. Mitchell argues
on appeal that Mitchell’s “answer was the functional equivalent of him providing
prohibited opinion testimony of ‘truthfulness.’”
To preserve a complaint for appellate review, a party must timely object to
the evidence with enough specificity to let the trial court know what he wants and
45 why. See Tex. R. App. P. 33.1(a). Generally, a party must continue to object each
time inadmissible evidence is offered. See Martinez v. State, 98 S.W.3d 189, 193
(Tex. Crim. App. 2003) (quoting Ethington v. State, 819 S.W.2d 854, 858 (Tex.
Crim. App. 1991)). The exceptions to this are when a party obtains a running
objection, or the court hears the objection outside the jury’s presence. See id.
The record shows that Mitchell provided similar opinion testimony about
Jordan’s truthfulness elsewhere without objection. While playing Jordan’s interview
for the jury, Mitchell was asked on at least eight other occasions whether he believed
Jordan was being honest during the interview, and he testified every time he did not
believe Jordan was honest. Each of these questions asked Mitchell to provide an
opinion about whether Jordan was being truthful, which Mitchell did. We hold that
Jordan forfeited his complaint by failing to renew his objection each time Mitchell
testified about Jordan’s truthfulness, to obtain a running objection, or request a
hearing outside the jury’s presence. See Tex. R. App. P. 33.1(a); Martinez, 98
S.W.3d at 193 (quoting Ethington, 819 S.W.2d at 858). We overrule issue eight.
Issues Six and Seven: Motions to Suppress
In issues six and seven, Jordan complains the trial court erroneously denied
his motions to suppress. In issue six, Jordan contends the trial court erred when it
overruled his Motion to Suppress Arrest and Evidence, asserting that he was arrested
46 without a warrant or probable cause. In issue seven he argues the trial court erred in
not suppressing his custodial statements at the Conroe Police Department.
Motions to Suppress and Pretrial Suppression Hearing
Before trial, Jordan filed two motions to suppress: (1) Motion to Suppress
Arrest; and (2) Motion for Hearing on Admissibility of Statement by Defendant
addressing what took place at the police station. The parties’ central dispute was
whether Jordan was arrested at McDonald’s or whether the interaction constituted
an investigative detention. Jordan argued that this was a non-consensual encounter,
and he was arrested without probable cause. The State argued that it was an
investigative detention supported by reasonable suspicion. During the suppression
hearing, the parties focused on the motion to suppress the arrest rather than the
custodial statement. Defense counsel argued Jordan did not feel like he was free to
leave but noted that once Jordan arrived at the station,
[I]t appears that the rights were read to him correctly, and it appears that he waived them, but since this is the step before that, we think that’s the one you should focus on. We think they have not been able to carry their burden to show this was a valid consent to be interviewed. So, we ask you to grant our motion to suppress arrest. The following exchange occurred at the end of the suppression hearing:
THE COURT: Both sides are dealing with the motion to suppress the arrest, correct? [THE STATE]: Your Honor, I think that was my argument. I think the evidence was clear from the stand about the statement and how it was conducted, and I think it speaks for itself as to the motion to suppress the defendant’s statement. 47 [THE DEFENSE]: And I didn’t address it in argument because I think the stronger argument is the argument to suppress the arrest. However, I will just point out that the detective said he did nothing to determine whether he was intoxicated or not, and he acknowledged he had no idea whether he was. So, it’s there for your consideration. [THE COURT]: That’s what I’m asking.
The trial court signed an Order denying the Motion to Suppress Arrest but did not
sign the proposed custodial statement.
Detective Mitchell testified at the suppression hearing. He testified his partner
called him on February 12, 2020, around 5:30 p.m. and told him about a shooting at
the Whistle Stop. He explained it was originally reported by a 9-1-1 caller, Frankie
Boyd. He testified that Boyd reported that her friend Smith, who was with her
boyfriend, Rash, and York, called and told her someone got into his car, shot
multiple times, and Rash and York were “nonresponsive.” According to Boyd, Smith
was also shot, and they were in a black Nissan.
Mitchell testified that Officer Tosto responded to the priority dispatch and
found the black Nissan. Mitchell said he reviewed Tosto’s bodycam footage, which
was admitted into evidence at the suppression hearing. Mitchell described the
footage and explained that as Tosto approached the Nissan, “he discovered Bryce
[Smith], who was bleeding from the face. Then, he finds the other two victims that
had been shot, both unresponsive. Devin Rash is sitting in the front, right, passenger
seat, and Ryan York sitting in the back, left, passenger seat behind the driver seat.”
48 Smith was shot in the head and able to speak, although he was not fully coherent and
unable to initially give a good description about who did it. There was nobody in the
right, rear vehicle seat. Mitchell said the video showed Rash’s cell phone.
Mitchell testified that another Conroe police officer interviewed Smith at the
hospital, which was recorded by bodycam that Mitchell watched. At the hospital,
Smith provided more information and described the suspect as a white male with a
“white, jacked up . . . Ford F-150 with dark, tinted windows.” Smith explained they
were at the Whistle Stop to sell marijuana to this person, and at 6:00 p.m., the officer
radioed the information to detectives working the scene.
Mitchell said that Boyd, who identified herself as Rash’s girlfriend, arrived at
the Whistle Stop, and another detective interviewed her. She told officers the three
men left together around 5 p.m. in Smith’s black Nissan, and Rash, who sold
marijuana, was carrying a bag. Boyd told the detective that Rash set up deals using
SnapChat, described his phone, and gave detectives Rash’s phone passcode. Once
Mitchell had this lead, he wanted to look at Rash’s SnapChat. Mitchell testified that
crime scene units began collecting and processing evidence, including Rash’s cell
phone. The phone they collected matched the description Boyd provided and opened
with the passcode.
Mitchell explained that they reviewed SnapChat messages on Rash’s phone
and took photos of them at 7:17 p.m. Those messages showed that someone
49 identified as “Nick Jordan” with a SnapChat username “nickjordan00” messaged
Rash about buying two ounces of marijuana. Photographs of the SnapChat messages
were admitted into evidence during the hearing. Mitchell said the messages showed
they agreed to a price of $380 and to meet at the Whistle Stop. Rash told Jordan to
park “by the semi in the end of the parking lot[.]” Rash said he would be in a black
Nissan, which they found next to the semi-trailer. Jordan described his vehicle as a
“jacked up, white Ford[,]” consistent with what Smith reported at the hospital.
Mitchell testified that when he read these messages, he was suspicious of Nick
Jordan in a white, Ford truck, and said, “I believe he was the last person that possibly
had contact with the victims.” He also believed the “00” at the end of “nickjordan”
might refer to a birth date.
Mitchell explained that another detective was provided a description of the
suspect and vehicle and checked businesses nearby, including Makeup Junkie, for
surveillance video. A surveillance image captured by Makeup Junkie at 5:19 p.m.
was admitted into evidence and showed a lifted, white Ford truck matching that
description. He reviewed surveillance footage and saw no other vehicles matching
the description. Mitchell testified the information about the white Ford was relayed
to the entire investigative team.
Mitchell testified they provided the Snapchat username of “nickjordan00” and
detailed truck description to analysts with the Real Time Crime Center, who cross
50 reference law enforcement databases and produce leads. When they cross-referenced
that information, the only “Nick Jordan” they found in the area was “Waymon
Nicholas Jordan.” Mitchell testified Real Time Crime Center provided investigators
bond paperwork for “Waymon Nicholas Jordan” with a birth year of 2000, for
possession of marijuana. The bond paperwork was admitted into evidence and
included a contact name for Gerald Williams, which was Jordan’s stepfather.
Mitchell explained that Williams owned a lifted, white, Ford truck, and license plate
reader hits from his registered plate matched the described vehicle. Real Time
provided them with an alternate address on Canyon Hills associated with Williams
and Jordan. Plainclothes, undercover detectives were dispatched to that address and
reported “a white, Ford F-250, brush guard, dark tinted windows, black wheels
matching the description parked in the driveway.”
Mitchell testified that once they received information about the truck
connected to Jordan with birth year 2000, officers continued watching the house and
vehicle, but around 10:38 p.m., other team members moved to a Kroger on 1097 in
Willis. Officers watching the Canyon Hills address relayed that a white male and
female left the residence, and the young white male roughly matched the description
they had. Mitchell testified the officers followed the vehicle to the McDonald’s on
FM 1097, across the street from the Kroger where officers relocated. When the
vehicle stopped in the drive-thru, Lieutenant Stowe approached it to identify the
51 individuals inside, and when this transpired, about five hours had passed since the
shooting.
Bodycam video was admitted into evidence showing Stowe calmly
approaching the vehicle in the drive-thru and identifying himself, and Stowe did not
have a weapon. The passenger identified himself as Nick Jordan, which Mitchell
believed fit the Whistle Stop meeting and SnapChat conversation. Mitchell was
suspicious of Jordan at that point and believed he was involved in the crime. After
Jordan identified himself to Stowe, Detective Adams approached and told him they
were investigating a murder, his name came up, and they wanted him to speak with
him at the station. Jordan declined and said he wanted to go home. Mitchell then
approached Jordan, identified himself, and explained it would “behoove him to aid
us in the investigation,” but they could not do that in the parking lot. Mitchell
testified the Conroe Police Station was about ten minutes away, and after telling
Jordan it was a better place to talk, Jordan again declined before eventually telling
officers he would come with them since “I don’t have a choice.”
Mitchell testified that when he arrived at the McDonald’s, he had the
following information: (1) Snapchat messages describing the marijuana transaction;
(2) confirmation that the vehicle captured on Makeup Junkie surveillance at the
scene at the time of the murders was the same truck located at the Canyon Hills
address (based on plate read and bond paperwork); (3) the bond paperwork for a
52 marijuana offense showing someone named Waymon Nicholas Jordan with a birth
year of 2000 that corresponded to the “00” in the Snapchat handle “nickjordan00”;
and (4) a witness described the person as a white male.
Officers put Jordan into a car without handcuffs and transported him to the
Conroe Police Department. During the transport, the officer did not question Jordan.
When they arrived at the police station, they immediately put Jordan in an interview
room and Mirandized him before questioning him. Mitchell said that Jordan
acknowledged he understood his rights and voluntarily waived them before giving a
statement. Mitchell testified that he and Adams confirmed Jordan understood his
Miranda rights.
Mitchell testified that Jordan’s evasive answers made the interview last
longer, and Jordan confessed to murdering Rash and York and shooting Smith two
hours and forty-three minutes into the interview. After Jordan confessed, they
arrested him. Officers did not try to determine whether he was intoxicated before
speaking with him.
In urging the motions to suppress, Jordan argued that he did not think he was
free to leave. He also asserted the totality of the circumstances showed that he did
not want to be interviewed. Jordan focused on the fact that he did not feel as if he
had a choice. The defense also acknowledged that once he arrived, it appeared his
rights were read correctly, and he waived them. Yet, he argued that “since this is the
53 step before that, we think that’s the one you should focus on. We think they have not
been able to carry their burden to show this was a valid consent to be interviewed.
So, we ask you to grant our motion to suppress his arrest.”
The State argued the encounter was an investigative detention and fell “in the
middle” of a consensual encounter and a full-blown arrest. The State argued this
must be judged from the perspective of a reasonable officer at the scene rather than
in hindsight. The State argued that “if a police officer can articulate specific facts
giving rise to the belief that this person has been or will be involved in a crime, that
gives them the suspicion that they need to detain that individual” to investigate. The
State then identified specific, articulable facts officers had when they transported
Jordan to the police station. The State also argued that officers are allowed to use
reasonably necessary force to maintain the status quo during an investigation. The
trial court denied Jordan’s Motion to Suppress Arrest. The record did not initially
contain Findings of Fact and Conclusions of Law, so we abated the appeal and
requested the trial court provide them. The trial court did not sign the order regarding
the custodial statement.
Exhibits admitted at the suppression hearing included bodycam video at the
McDonald’s and bodycam from the officer who transported him to the station,
photographs of the truck, SnapChat messages from Rash’s phone with nickjordan00,
and copies of the Jordan’s bond paperwork listing Williams as a contact. The video
54 of the interview at the police station was not offered as an exhibit, but Mitchell
testified about what transpired.
Findings of Fact and Conclusions of Law
The trial court supplemented the record with Findings of Fact and Conclusions
of Law, which included the following, among others:
FINDINGS OF FACT ...
15. During the entire interaction at McDonald’s, there were no lights and sirens, no weapons drawn, no taser pointed, and no force used on the defendant. 16. The officers who had been staging at the Kroger diverted to the McDonald’s, but most of them stood around the perimeter of the parking lot and were not involved with speaking to the defendant. ... 18. Everyone who interacted with the defendant on scene maintained a calm and requesting tone and demeanor. 19. The defendant appeared calm as well. 20. He did not seem nervous, frightened, or intimidated. 21. Detective Adams informed the defendant that his name came up in an investigation and asked him to accompany Adams to the police station to speak. 22. The defendant said he would rather just go home. 23. Mitchell re-approached the defendant and explained that they needed to speak with him at the police department about something serious, and could not continue to speak in the McDonald’s parking lot. 24. The defendant said alright, and agreed to go with him. 25. Mitchell explained that another officer would give the defendant a ride, and the defendant said “if I don’t have a choice.” 26. the defendant was transported in a patrol car, but he was never told he was under arrest and he was not handcuffed at any point while at the McDonald’s or during the ride to the police station. ...
55 32. At the conclusion of the hearing, the defendant argued that the State had not carried its “burden to show this was a valid consent to be interviewed.” 33. The defendant conceded at the hearing that his rights were read to him correctly, and that he waived them. 34. The defendant did not argue or present any evidence that his statement was involuntary, aside from arguing that Mitchell did not affirmatively inquire about whether the defendant was intoxicated. 35. The defendant instead focused his argument at the hearing on the motion to suppress his arrest. 36. The recorded interview was admitted at trial as exhibit 93. 37. The video begins with the defendant being shown in the interview room, where he sat down. 38. Over six minutes later, Detectives Mitchell and Adams entered and sat down. 39. They asked for the defendant’s name, address, and date of birth. The defendant understood and appropriately answered the questions. 40. Mitchell stated that he appreciated the defendant coming to talk to them, but said he needed to read the defendant his rights before they spoke. 41. The defendant acknowledged his understanding, stating “yeah, go ahead.” 42. Mitchell read the defendant his statutory rights, and asked the defendant if he understood those rights. 43. The defendant immediately and unequivocally replied, “yes, sir.” 44. Adams asked “do you know what all that means?” ... 46. The defendant understood his rights and voluntarily waived those rights and gave a statement. ... 49. The defendant understood that he did not have to accede to the detectives’ requests. 50. The defendant voluntarily continued answering the detectives’ questions. 51. The defendant seemed to understand the detectives’ questions and answered them coherently. 52. Throughout the interview, the defendant appeared to be in total control of his mental faculties. 53. The defendant did not request an attorney at any point.
56 54. Despite being advised that he had the right to terminate the interview at any time, the defendant never chose to do that. ... 56. There were no indications that the defendant was intoxicated, impaired, or mentally unsound. ... 65. Though Mitchell said it would “behoove” the defendant to speak with the detectives, and made several statements indicating that he wanted to “help” the defendant, neither detective promised the defendant any benefit if he confessed. 66. The detectives never threatened or coerced the defendant. 67. Mitchell truthfully told the defendant that the information they had made it look like the defendant committed capital murder. That statement was accurate, and not a threat likely to induce a false confession. 68. The defendant lied to the detectives for over two hours, which contributed to the length of the interview as the detectives tried to investigate his claims. 69. About two hours and forty-three minutes into the interview, the defendant admitted that he shot the three victims, claiming he did so after being attacked. 70. No evidence suggested the defendant was intoxicated or impaired by any substance while being interviewed, or that he lacked the mental capacity to understand and voluntarily waive his rights. 71. No evidence showed that police coerced the defendant to confess, or that his confession resulted from police overreaching or misconduct. 72. The defendant’s decision to waive his rights and give a statement was voluntary. 73. The defendant’s confession was voluntary.
CONCLUSIONS OF LAW
1. The defendant was read the requisite statutory and constitutional warnings at the beginning of his video-recorded interview, and the totality of the circumstances show that he understood those warnings and knowingly, intelligently, and voluntarily waived his rights. See Tex. Code Crim. Proc. Ann. art. 38.22 § 3, 7; Joseph v. State, 309 S.W.3d 20, 24-27 (Tex. Crim. App. 2010); see also Ortiz v. State, No. 08-23-00025-CR, 2024 WL 2178996, at *5 (Tex. App.—El Paso May
57 15, 2024, no pet. h.) (mem. op., not designated for publication) (collecting cases). 2. The defendant did not raise any disputed fact issue concerning the legality of obtaining his statement. See Oursbourn v. State, 259 S.W.3d 159, 181-82 (Tex. Crim. App. 2008). 3. The defendant’s confession did not result from police coercion or overreaching. See id. at 169-71; see also Ortiz, 2024 WL 2178996, at *5-8) (interrogation not coercive where defendant given food, water, and breaks; police promised no specific benefit; and no evidence showed defendant to be intoxicated or impaired); Fineran v. State, 201 S.W.3d 361, 365-66 (Tex. App.—El Paso 2006, pet. ref’d) (similar). 4. The defendant’s confession was voluntary. See Tex. Code Crim. Proc. Ann. art. 38.22 § 6; Lopez v. State, 610 S.W.3d 487, 496-98 (Tex. Crim. App. 2020); Cameron v. State, 630 S.W.3d 579, 596 (Tex. App.—San Antonio 2021, no pet.) (defendant’s statement voluntary where defendant appeared to understand and coherently answer each question and no evidence was presented to show she was susceptible to psychological pressures); Giddens v. State, 256 S.W.3d 426, 430-31 (Tex. App.—Waco 2008, pet. ref’d) (defendant’s confession voluntary and not product of coercive interrogation where length of interview due largely to defendant’s deception; defendant was offered breaks and refreshment; and no evidence showed defendant unwilling to talk).
Standard of Review and Applicable Law
We review a trial court’s denial of a motion to suppress under a bifurcated
standard. See Igboji v. State, 666 S.W.3d 607, 612 (Tex. Crim. App. 2023); Amador
v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (stating same in determination
of reasonableness of a temporary investigative detention or arrest). We review a trial
court’s determination on the reasonableness of a specific search or seizure using a de
novo standard. Igboji, 666 S.W.3d at 612; Amador, 221 S.W.3d at 673. We afford
trial courts almost complete deference in determining historical facts that depend on
credibility and demeanor. Igboji, 666 S.W.3d at 612; Amador, 221 S.W.3d at 673. 58 Where, as here, a trial court issues findings of fact and conclusions of law, we view
the evidence in the light most favorable to the ruling and determine whether the
evidence supports those findings. See State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006). We uphold the trial court’s ruling if it is supported by the record
and correct under any theory of law applicable to the case. See Young v. State, 283
S.W.3d 854, 873 (Tex. Crim. App. 2009).
Officers’ interaction with Jordan was a consensual encounter that moved into an investigative detention.
The United States and Texas Constitutions prohibit unreasonable searches and
seizures. U.S. CONST. amend. IV; Tex. Const. art. I, § 9. “The law recognizes three
types of police-citizen interactions related to searches and seizures: (1) consensual
encounters that do not implicate the Fourth Amendment; (2) investigative detentions
that must be supported by a reasonable suspicion of criminal activity; and (3) arrests
that are reasonable only if supported by probable cause.” Monjaras v. State, 664
S.W.3d 921, 927 (Tex. Crim. App. 2022) (citing Furr v. State, 499 S.W.3d 872, 877
(Tex. Crim. App. 2016)) (other citation omitted).
“An encounter is consensual only if the citizen is free to leave and terminate
the interaction at any time.” Monjaras, 664 S.W.3d at 927; Crain v. State, 315
S.W.3d 43, 49 (Tex. Crim. App. 2010). An interaction is a detention when a person
cedes to an officer’s show of authority under a reasonable belief that he is not free
to leave. See Crain, 315 S.W.3d at 49. “There is no bright line rule dictating when a 59 consensual encounter becomes a detention.” Furr, 499 S.W.3d at 877 (citation
omitted); see also Monjaras, 664 S.W.3d at 927. “Rather, reviewing courts must
‘examine the totality of the circumstances to determine whether a reasonable person
would have felt free to ignore the officer’s request or to terminate the consensual
encounter.’” Monjaras, 664 S.W.3d at 927 (quoting Furr, 499 S.W.3d at 877; State
v. Castleberry, 332 S.W.3d 460, 467 (Tex. Crim. App. 2011)). Whether a citizen has
been detained is an objective determination, and a detainee’s or law enforcement’s
subjective intent or belief is irrelevant. See Stansbury v. California, 511 U.S. 318,
323 (1994); Monjaras, 664 S.W.3d at 927; Furr, 499 S.W.3d at 878; Dowthitt v.
State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996).
An officer merely requesting identification and permission to search does not
escalate an encounter into an investigative detention. Hunter v. State, 955 S.W.2d
102, 104 (Tex. Crim. App. 1997); see also Castleberry, 332 S.W.3d at 466
(explaining that officers may request identification and information from a citizen
without reasonable suspicion). Nor does a consensual encounter become an
investigative detention merely because an officer fails to inform the citizen that he
does not have to comply with the requests. Monjaras, 664 S.W.3d at 927 (citation
omitted). If the officer conveys to the citizen that compliance with the requests is
required, then an investigative detention occurs. Id.
60 Whether a use of force elevates the detention to an arrest turns on the
reasonableness of the intrusion under all the facts. Bartlett v. State, 249 S.W.3d 658,
669 (Tex. App.—Austin 2008, pet. ref’d). Factors considered in determining
whether the encounter is an investigative detention or arrest include: (1) the officers’
degree of force; (2) detention’s duration; (3) efficiency of investigative process and
location; (4) officer’s expressed intent – whether he told the individual he was under
arrest or detained; (5) the nature of the crime under investigation; (6) the degree of
suspicion; (7) location of stop; (8) time of day; (9) the suspect’s reaction; and (10)
whether the officer actually investigates. See State v. Sheppard, 271 S.W.3d 281,
291 (Tex. Crim. App. 2008); State v. Moore, 25 S.W.3d 383, 386 (Tex. App.—
Austin 2000, no pet.); see also Bartlett, 249 S.W.3d at 669. When examining the
detention’s duration, courts also consider whether the detainee’s evasive answers
increased the time required for officers to question him. See Balentine v. State, 71
S.W.3d 763, 771 (Tex. Crim. App. 2002) (noting the time needed to question
appellant about his possible involvement “increased substantially because
of appellant’s evasive answers,” and not because of officer’s dilatory tactic).
“‘[C]ommon sense and ordinary human experience must govern over rigid
criteria.’” Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997) (citation
omitted). “Furthermore, allowances must be made for the fact that officers must
often make quick decisions under tense, uncertain and rapidly changing
61 circumstances.” Id. Thus, an investigative detention’s circumstances, such as safety
and security reasons, may reasonably justify an officer transporting the suspect
elsewhere for questioning. See Castro v. State, 373 S.W.3d 159, 166 (Tex. App.—
San Antonio 2012, no pet.) (transporting suspect short distance for investigation is
consistent with investigatory detention’s purpose); Turner v. State, 252 S.W.3d 571,
579 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (handcuffing and
transporting suspect thirty minutes to police station did not convert investigative
detention to arrest).
Whether the officer’s actions were reasonable are judged from the perspective
of a reasonable officer at the scene, rather than in hindsight. Rhodes, 945 S.W.2d at
118; Goldberg v. State, 95 S.W.3d 345, 360 (Tex. App.—Houston [1st Dist.] 2002,
pet. ref’d). Police may use such force as reasonably necessary to accomplish the
detention’s goal: investigation, maintenance of the status quo, or officer safety.
Rhodes, 945 S.W.2d at 117. We must first determine whether the detention
constitutes an arrest or an investigatory detention since the “nature of the detention
determines the applicable constitutional standards.” Castro, 373 S.W.3d at 164
(citing Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991)).
Lieutenant Stowe initially approached the vehicle already stopped in the
drive-thru and asked Jordan to identify himself, and he did. This initial interaction
constituted a consensual encounter. See Castleberry, 332 S.W.3d at 466–67; Hunter,
62 955 S.W.2d at 104. Mitchell’s testimony at the suppression hearing, as outlined
above, established officers did not use a high degree of force. Video evidence and
Mitchell’s testimony established that despite a large officer presence, only three
approached Jordan and did so individually. Officers did not activate their lights, they
spoke calmly, did not draw their weapons, and did not handcuff him. They
immediately separated him from his girlfriend and questioned her.
As Mitchell explained, they were investigating two murders that occurred
hours before, and multiple connections made them suspicious of Jordan. Mitchell
and Adams told Jordan that his name had come up in a murder investigation, and he
wanted to know how. Officers wanted to continue investigating to confirm or dispel
their suspicions of Jordan. Mitchell explained they were concerned about public and
officer safety given the nature of the crime. They wanted to move Jordan to a more
secure location so they could continue questioning him. Officers transported him ten
minutes to the police station and immediately put him in a room.
Less than ten minutes after arriving, they Mirandized him, and began
questioning him about his involvement. Mitchell testified that they investigated
whether Jordan had an alibi, whether someone else could have driven the white
truck, and whether someone else may have used his SnapChat account. Jordan began
by naming another individual who he falsely claimed took his stepfather’s truck to
buy marijuana. Mitchell testified that as they interviewed him, other officers “spent
63 a considerable amount of time” trying to locate and cross-reference that individual
to determine whether he existed. He also testified that Jordan’s evasiveness resulted
in a longer interview. After almost three hours and being unable to verify the
information Jordan provided, he confessed. Jordan’s providing false information to
officers increased the length of questioning. See Balentine, 71 S.W.3d at 771. After
he confessed, officers arrested him.
On appeal, Jordan focuses on (1) the fact that Jordan did not believe he had a
choice but to go with police and (2) a seeming inconsistency in Mitchell’s testimony
about whether Jordan was free to leave. First, we note that it is not Jordan’s
subjective belief or Mitchell’s that matters. See Stansbury, 511 U.S. at 323;
Monjaras, 664 S.W.3d at 927; Furr, 499 S.W.3d at 878; Dowthitt, 931 S.W.2d at
254. Second, Jordan’s belief that he was not free to leave is consistent with an
investigatory detention. See Crain, 315 S.W.3d at 49 (explaining that an
investigative detention occurs when an individual yields to an officer’s show of
authority under a reasonable belief that he is not free to leave).
We have considered the relevant factors of degree of force, detention’s
duration, nature of the crime, location of the stop, degree of suspicion, and that
officers immediately and continually were investigating the crime and attempting to
verify information Jordan provided. See Sheppard, 271 S.W.3d at 291; Bartlett, 249
S.W.3d at 669; Moore, 25 S.W.3d at 386. Based on the totality of the circumstances,
64 we conclude the evidence at the suppression hearing supports that the officers’
encounter with Jordan began as a consensual interaction by asking him to identify
himself then moved to an investigatory detention when they put him in a police car,
transported him to the station, and questioned him. See Monjaras, 664 S.W.3d at
927; Furr, 499 S.W.3d at 877; Castleberry, 332 S.W.3d at 467.
Reasonable suspicion supported officers’ investigative detention of Jordan.
Having determined this was a consensual encounter that escalated into an
investigatory detention, we now turn to whether the officers’ conduct was reasonable
considering the totality of the circumstances. See Derichsweiler v. State, 348 S.W.3d
906, 914 (Tex. Crim. App. 2011); see also Matthews v. State, 431 S.W.3d 596, 603
(Tex. Crim. App. 2014). Under the Fourth Amendment, an officer’s “reasonable
suspicion” to believe that an individual has been involved in criminal activity will
support a brief investigative detention. Derichsweiler, 348 S.W.3d at 914; see
also Terry v. Ohio, 392 U.S. 1, 21–22 (1968). “‘A police officer has reasonable
suspicion to detain if he has specific, articulable facts that, combined with rational
inferences from those facts, would lead him reasonably to conclude that the person
detained is, has been, or soon will be engaged in criminal activity.’” Matthews, 431
S.W.3d at 603 (citation omitted). “In determining whether an officer has reasonable
suspicion to detain, we look at the totality of the circumstances through an objective
lens, disregarding the officer’s subjective intent.” Id.
65 During the suppression hearing, Mitchell specified the available facts and why
they believed Jordan was involved in the shooting when they approached him at
McDonald’s. See id.; Derichsweiler, 348 S.W.3d at 914. We have delineated those
facts in detail in our discussion above. Based on the evidence at the suppression
hearing, we hold that officers had specific, articulable facts that, combined with
rational inferences from those facts, led them to reasonably conclude Jordan was
involved in the shooting at the Whistle Stop Café. See Matthews, 431 S.W.3d at 603;
Derichsweiler, 348 S.W.3d at 914. Accordingly, reasonable suspicion supported
officers’ investigative detention of Jordan. See Matthews, 431 S.W.3d at 603;
Derichsweiler, 348 S.W.3d at 914. Since Jordan was not unlawfully arrested, the
trial court did not err in denying his Motion to Suppress Arrest or in admitting the
complained-of evidence Jordan argued was tainted by an unlawful arrest. We
overrule issue six.
Jordan has failed to preserve his 38.22 complaint about the voluntariness of his custodial interrogation. Nevertheless, the trial court’s findings of fact and conclusions of law that Jordan’s confession was voluntary are supported by the record.
In issue seven, Jordan complains the trial court erred by not suppressing his
“custodial statement.” In support of this issue, he asserts that although he was
“casually” read his Miranda warnings, he was “never asked if he wishes to
knowingly, intelligently and voluntarily waive his rights[,]” which constituted a
violation of article 38.22. In essence, on appeal Jordan complains about how the 66 officers asked him to waive those rights. The State counters that Jordan failed to
preserve this complaint for our review. We agree with the State.
Texas Rule of Appellate Procedure 33.1(a) provides that a complaint is not
preserved for appeal unless it was made to the trial court “by a timely request,
objection or motion” that “stated the grounds for the ruling that the complaining
party sought from the trial court with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent from the
context[.]” Tex. R. App. P. 33.1(a); see also Resendez v. State, 306 S.W.3d 308, 312
(Tex. Crim. App. 2009) (citation omitted). Jordan complains on appeal that officers
violated article 38.22 section 3(a)(2), which requires that “the accused knowingly,
intelligently, and voluntarily waive[] any rights” before an oral custodial statement
is admissible. See Tex. Code Crim. Proc. Ann. art. 38.22 § 3(a)(2).
The facts before us are like those in Resendez v. State. There, the Court of
Criminal Appeals concluded neither the appellant’s pretrial motions to suppress that
generally mentioned article 38.22 nor his arguments at the hearing preserved his
complaint on appeal. See id. at 313, 316–17. The Court explained that “Article 38.22
contains a number of subsections that could have been applicable to the appellant’s
videotaped statement. The appellant’s argument, however, contained little more than
a citation to the statute and did not bring the specific violation of Article 38.22 to the
trial court’s attention.” Id. at 313.
67 As noted above, before trial, Jordan filed his Motion for Hearing on
Admissibility of Statement by Defendant addressing Jordan’s statement at the police
station. That Motion raised various United States and Texas constitutional grounds
for excluding the statement and cited Texas Code of Criminal Procedure articles
38.21, 38.22, 38.23, Jackson v. Denno, 378 U.S. 368 (1964), and Wong Sun v. U.S.,
371 U.S. 471 (1963). The Motion does not mention that Jordan did not “knowingly,
intelligently and voluntarily” waive his rights or that the State failed to secure a
proper waiver of Jordan’s rights. See Tex. Code Crim. Proc. Ann. art. 38.22 §
3(a)(2). Rather, the Motion argues that Jordan was “under arrest or substantially
deprived” of his freedom and that his statements “were the fruit of illegal arrest
and/or search and seizure.”
Likewise at the suppression hearing, the parties focused on Jordan’s Motion
to Suppress Arrest, rather than the voluntariness of his statements. During the
suppression hearing, the trial court asked what he was addressing, and Jordan
responded that he focused on the Motion to Suppress the Arrest but noted that
Mitchell testified he did not try to determine whether Jordan was intoxicated. So, he
submitted that for the trial court’s “consideration.” He did not complain in the
suppression hearing that officers never asked him if he “knowingly, intelligently,
and voluntarily” waived his rights, the argument he makes on appeal. Rather, he
told the trial court the reason he focused on the arrest was that it appeared “the rights
68 were read to him correctly, and it appears that he waived them[.]” The trial court did
not sign an order on the motion to suppress Jordan’s statement.
The trial court’s article 38.22 findings included that officers read Jordan his
rights, and he voluntarily waived them. The trial court also found that Jordan was
coherent, not intoxicated or impaired, and his confession was not the product of
coercion and was voluntary. These findings are supported by the record. See Young,
283 S.W.3d at 873; Kelly, 204 S.W.3d at 818. Further, the trial court’s conclusions
of law included that: (1) Jordan was read the requisite statutory and constitutional
warnings at the beginning of the interview, and the totality of the circumstances
show that he understood them and “knowingly, intelligently, and voluntarily waived
his rights[;]” (2) he did not raise any disputed fact issue concerning the legality of
obtaining his statement; (3) his confession did not result from coercion or
overreaching; and (4) his confession was voluntary.
The trial court further found that the defendant conceded at the hearing
detectives read his rights correctly and he waived them, he did not present any
evidence his statement was involuntary, and he instead focused his argument at the
hearing on the motion to suppress his arrest. These findings are likewise supported
by the record. See Young, 283 S.W.3d at 873; Kelly, 204 S.W.3d at 818. Since Jordan
failed to apprise the trial court of the specific article 38.22, section 3(a)(2) complaint
about the voluntariness of his statement that he now raises on appeal, we conclude
69 he has failed to preserve this for our review. See Tex. R. App. P. 33.1(a); Resendez,
306 S.W.3d at 316–17; see also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim.
App. 2009) (explaining that whether a particular complaint is preserved depends on
whether the complaint made on appeal comports with the complaint at trial). We
overrule issue seven.
Issues Nine through Thirteen: Jury Charge
In issues nine through thirteen, Jordan complains the trial court refused to
include his requested instructions in the jury charge.
Standard of Review and Jury Charge Law
A claim of jury charge error involves a two-step analysis. See Alcoser v. State,
663 S.W.3d 160, 165 (Tex. Crim. App. 2022). We first determine whether the
charge is erroneous, then if so, we decide whether the appellant was harmed by the
erroneous charge. See id.; Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.
2013). There are two standards of review for charge error claims. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g); see also Alcoser, 663
S.W.3d at 165. If a defendant timely objects to the alleged error, the record must
only show “some harm” to obtain relief. Alcoser, 663 S.W.3d at 165; Almanza, 686
S.W.2d at 171. If the defendant fails to timely object, the record must show
“egregious harm.” Alcoser, 663 S.W.3d at 165; Almanza, 686 S.W.2d at 171. We
assess harm “in light of the entire jury charge, the state of the evidence, including
70 the contested issues and weight of [the] probative evidence, the argument of counsel
and any other relevant information revealed by the record of the trial as a
whole.” Almanza, 686 S.W.2d at 171; see also Alcoser, 663 S.W.3d at 165. Jury
charge error “is egregiously harmful if it affects the very basis of the case, deprives
the accused of a valuable right, or vitally affects a defensive theory.” Alcoser, 663
S.W.3d at 165 (citation omitted). “A finding of egregious harm must be based on
‘actual harm rather than theoretical harm.’” Id. (citing Cosio v. State, 353 S.W.3d
766, 777 (Tex. Crim. App. 2011)). Meeting the egregious harm standard is difficult
and is a fact-specific analysis. See id.; see also Villarreal v. State, 453 S.W.3d 429,
433 (Tex. Crim. App. 2015). “Neither party bears the burden to show
harm.” Alcoser, 663 S.W.3d at 165 (citation omitted).
The trial court must submit a jury charge “distinctly setting forth the law
applicable to the case[.]” Tex. Code Crim. Proc. Ann. art. 36.14. The charge should
inform the jury of the applicable law and how to apply it to the case’s facts. Delgado
v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (citation omitted); see also
Alcoser, 663 S.W.3d at 164–65. “Abstract paragraphs ‘serve as a glossary to help
the jury understand the meaning of concepts and terms used in the application
paragraphs of the charge,’ and application paragraphs apply the ‘pertinent penal law,
abstract definitions, and general legal principles to the particular facts and the
indictment allegations.’” Alcoser, 663 S.W.3d at 165 (quoting Crenshaw v. State,
71 378 S.W.3d 460, 466 (Tex. Crim. App. 2012)). A defendant is entitled to an
instruction on any defensive issue raised by the evidence, regardless of the
evidence’s strength or credibility. Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim.
App. 2020). A defensive issue is raised if there is sufficient evidence to support the
jury rationally finding each element of the defense. Id.
The trial court properly instructed the jury on self-defense and multiple assailants, and Jordan was not entitled to the requested apparent danger instruction. In issue nine, Jordan contends the trial court erred when it refused his
“specially requested” instruction on self-defense relating to multiple assailants and
apparent danger. During the charge conference, Jordan submitted a proposed written
instruction on apparent harm and multiple assailants. The State objected that the
language was non-statutory and constituted an impermissible comment on the
weight of the evidence. The trial court denied the non-statutory apparent danger
language but included the multiple assailants wording. On appeal, Jordan argues that
“the charge given was too abstract and restrictive in its explanation of the law of
self-defense.”
“[A] person is 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.” Tex. Penal Code Ann. §
9.31(a). As applicable here, a person is justified in using deadly force against another
72 if he would be justified in using force, and he reasonably believes deadly force is
immediately necessary to protect himself against the other’s use or attempted use of
unlawful deadly force or to prevent the other’s imminent commission of robbery.
See id. § 9.32(a). “When the evidence viewed from the defendant’s standpoint shows
an attack or threatened attack by more than one assailant, the defendant is entitled to
a multiple assailants instruction.” Jordan, 593 S.W.3d at 343 (citation omitted). The
issue may be raised even as to those who are not aggressors if they seem to be
encouraging, aiding, or advising the aggressor. Id. “If there is evidence of more
assailants than one, the charge must inform the jury that the accused can defend
against either, and it is error to require the jury to believe or find that there was more
than one assailant attacking the accused.” Black v. State, 145 S.W. 944, 947 (Tex.
Crim. App. 1912); see also Jordan, 593 S.W.3d at 345.
Regarding self-defense and multiple assailants, the charge’s abstract section
instructed the jury as follows:
Upon the law of self-defense, you are instructed that 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 one or more person’s use or attempted use of unlawful force. A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as set out above, and when and to the degree he reasonably believes that such deadly force is immediately necessary to protect himself against one or more person’s use or attempted use of unlawful deadly force or to prevent the other’s imminent commission of robbery.
73 By the term “reasonable belief” as used herein is meant a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.
By the term “deadly force” is meant force that is intended or known by the persons using it to cause, or in the manner of its use or intended use is capable of causing death or serious bodily injury.
The application portion of the charge addressed multiple assailants and named Rash,
York, and Smith. It first instructed the jury to consider whether Jordan committed
all the elements of capital murder. The charge then instructed the jury regarding the
consequences of its findings or failure to find that Jordan’s belief that his conduct
was immediately necessary to protect himself against Rash, York, and Smith’s “use
or attempted use of unlawful deadly force” or to prevent their “imminent
commission of the offense of robbery” on the offense of capital murder. It instructed
the jury to acquit Jordan unless (1) the State proved that he did not believe his
conduct was immediately necessary, or (2) believed his conduct was immediately
necessary, but his belief was not reasonable. It then instructed the jury to consider
the lesser included offense of murder if it found his belief was reasonable as to one
assailant but not the other. Finally, it instructed that if the jury had a reasonable doubt
as to whether he was guilty of any offense, they must acquit him.
Here the trial court’s charge properly tracked the law of self-defense. See Tex.
Penal Code Ann. §§ 9.31(a), 9.32(a); see also Tex. Code Crim. Proc. Ann. art. 36.14.
Since the evidence raised the issue of multiple assailants, the charge likewise
74 instructed the jury that it could consider the conduct of “one or more” people in the
application paragraph and named Rash, York, and Smith when determining whether
Jordan’s conduct was reasonable. See Jordan, 593 S.W.3d at 343.
Generally, a trial judge should avoid including non-statutory instructions in
the charge because they often constitute impermissible comments on the weight of
the evidence. See Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim.
App. 2019); Walters, 247 S.W.3d at 211.
Jordan requested the following non-statutory apparent danger instruction:
In determining the existence of real or apparent danger, you should consider all the facts and circumstances going to show the condition of the mind of the defendant at the time of the occurrence in question, and in considering such circumstances, you should place yourselves in the defendant’s position at the time and view them from his standpoint alone.
Our sister court in Austin concluded the trial court did not err when it refused a
nearly identical apparent danger instruction as the one denied in this case. See Bundy
v. State, 280 S.W.3d 425, 429–31 (Tex. App.—Austin 2009, pet. ref’d). There, the
court explained that where a defendant claims self-defense, his rights are fully
preserved and the concept of “apparent danger” properly presented when a charge
instructs the jury (1) that a defendant’s conduct is justified if he reasonably believed
the deceased was using or attempting to use unlawful deadly force against him, and
(2) correctly defines “reasonable belief.” See id. at 430 (citations omitted). The
charge did so here. 75 We hold the charge properly instructed the jury on the law of self-defense and
multiple assailants, and the trial court did not err by refusing to include the
nonstatutory apparent danger instruction, which would constitute an impermissible
comment on the weight of the evidence. See Tex. Code Crim. Proc. Ann. art. 36.14;
see also Tex. Penal Code Ann. §§ 9.31(a), 9.32(a); Jordan, 593 S.W.3d at 343;
Bundy, 280 S.W.3d at 429–31. We overrule issue nine.
Jordan was not entitled to an instruction under Texas Penal Code section 9.32(b).
In issue ten, Jordan complains the trial court erred by denying his requested
jury instruction that his actions in self-defense were presumed reasonable per Texas
Penal Code section 9.32. See Tex. Penal Code Ann. § 9.32(b). The trial court denied
the requested instruction for the presumption because he could not meet the third
prong and was engaged in criminal activity.
As relevant here, an actor’s belief that deadly force was immediately
necessary to prevent robbery is presumed to be reasonable if the actor: (1) knew or
had reason to believe the person against whom deadly force was used was
committing or attempting to commit robbery; (2) did not provoke the person against
whom the force was used; and (3) was not otherwise engaged in criminal activity,
other than a Class C misdemeanor traffic offense at the time the force was used. See
id. § 9.32(b)(1)(C), (2), (3). A trial court must instruct the jury on a defensive
presumption if sufficient evidence of the facts raise the presumption “unless the
76 court is satisfied that the evidence as a whole clearly precludes a finding beyond a
reasonable doubt of the presumed fact[.]” Id. § 2.05(b)(1); Morales v. State, 357
S.W.3d 1, 7 (Tex. Crim. App. 2011) (noting same). If the evidence conflicts on
relevant matters, then a fact issue may exist requiring submission of the presumption
to the jury. See Morales, 357 S.W.3d at 8.
SnapChat messages showed that Jordan reached out to buy marijuana from
Rash. Mitchell testified to the marijuana purchase, and Jordan admitted the same in
the recorded statement played for the jury. The undisputed evidence at trial showed
Jordan was engaged in criminal activity when the shooting occurred, since he was
attempting to possess marijuana and had taken steps to purchase it. See Tex. Penal
Code Ann. § 15.01(a) (“A person commits an offense if, with specific intent to
commit an offense, he does an act amounting to more than mere preparation that
tends but fails to effect the commission of the offense.”); Tex. Health & Safety Code
Ann. § 481.121(a) (making it an offense for a person to knowingly or intentionally
possess a usable quantity of marijuana). We hold that since the undisputed evidence
established Jordan was otherwise engaged in criminal activity when the shooting
occurred, he was not entitled to the presumption. See Tex. Penal Code Ann. § 9.32(b)
(3). We overrule issue ten.
77 Jordan was not entitled to an article 38.22 instruction.
In issue eleven, Jordan complains the trial court erroneously denied his
request for an Article 38.22 instruction. He first contends police unlawfully
“arrested” him when they “surrounded” him at McDonald’s and had him exit the
vehicle but failed to Mirandize him at that time. He sought to suppress the initial
confrontation in the McDonald’s parking lot and statements he made while at the
Conroe police station. Although he was provided statutory warnings before police
questioned him at the station, Jordan contends the video recorded statement played
for the jury did “not reflect a knowing, intelligent, and voluntary waiver of rights.”
See Tex. Code Crim. Proc. Ann. art. 38.22 § 3(a)(2) (requiring that defendant be
warned of his rights and “knowingly, intelligently, and voluntarily” waive them
before custodial interrogation if resulting oral confession is to be admissible). In his
brief, Jordan cites to article 38.22 § 3(a)(2).
During the charge conference, Jordan’s counsel argued that “we are entitled
for the jury to be charged on 38.22 of the voluntariness of his statement and whether
the rights were sufficiently read and properly waived[.]” Jordan clarified during the
charge conference he was “requesting the 38.22, section 7 charge.” That provision
provides, “When the issue is raised by the evidence, the trial judge shall
appropriately instruct the jury, generally, on the law pertaining to such statement.”
Id. art. 38.22 § 7. Under Texas statutes, there are three types of instructions that
78 relate to the taking of confessions: (1) a “general” article 38.22, § 6 voluntariness
instruction; (2) a “general” article 38.22, § 7 warnings instruction (involving
warnings given under § 2 and § 3); and (3) a “specific” article 38.23(a) exclusionary-
rule instruction. Oursbourn v. State, 259 S.W.3d 159, 173 (Tex. Crim. App. 2008).
A 38.22, section 7 instruction applies to 38.22, section 2 and 3 requirements and is
triggered only when “raised by the evidence.” See id. at 176. “For it to be ‘raised by
the evidence’ there must be a genuine factual dispute,” similar to Article
38.23 issues. Id. The section 7 instruction sets out the 38.22, § 2 or 3 requirements
and asks the jury to decide whether those requirements were met. See id. at 173.
On appeal, he directs us to the following evidence he claims warranted the
38.22, section 7 instruction: (1) Mitchell’s trial testimony allegedly contradicted his
suppression hearing testimony about whether Jordan was free to leave; and (2)
officers told Jordan the statement would benefit him. We disagree that a factual
dispute was raised by the evidence the jury considered. First, the only testimony the
jury heard from Mitchell was that Jordan was free to leave–it was not made aware
of any contradictory testimony in the suppression hearing. Absent a conflict
affirmatively raised by the evidence, Jordan was not entitled to an article 38.22,
section 7 instruction asking the jury whether they believed the requirements of article
38.22, sections 2 and 3 were met. See Tex. Code Crim. Proc. Ann. art. 38.22, § 7;
Oursbourn, 259 S.W.3d at 173. Second, the trial court determined that the evidence
79 failed to affirmatively raise a disputed fact issue about what officers told Jordan. As
we have previously noted, the record supports the trial court’s Findings of Fact and
Conclusions of Law. See Young, 283 S.W.3d at 873; Kelly, 204 S.W.3d at 818. The
video evidence speaks for itself, and the testimony at trial mirrored the video—
officers told Jordan it would “behoove” him to come to the station and talk to them
or that it would “benefit” him. This was not a contested matter that the jury needed
to determine under an article 38.22, section 7 instruction. See Tex. Code Crim. Proc.
Ann. art. 38.22, § 7; Oursbourn, 259 S.W.3d at 173.
We conclude that absent a disputed fact issue affirmatively raised by the
evidence, Jordan was not entitled to an Article 38.22, § 7 instruction. See Tex. Code
Crim. Proc. Ann. art. 38.22, § 7; Oursbourn, 259 S.W.3d at 173. We overrule issue
eleven.
Absent a disputed issue of material fact, Jordan was likewise not entitled to an article 38.23 instruction. In issue twelve, Jordan complains that the trial court erred by refusing his
requested 38.23 instruction. He complains he was illegally arrested without a
warrant, and because of that, he was “not in a position of choice which would allow
him to voluntarily waive his rights.” He also asserts by denying him the opportunity
to determine these issues, he was deprived of “due process and due course of law.”
He claims that discrepancies in Detective Mitchell’s trial testimony compared to his
pretrial suppression hearing testimony justify giving the 38.23 instruction. The State
80 responds (1) that whether Jordan was under arrest or merely detained when he
confessed is a legal question, (2) Mitchell’s suppression hearing testimony was not
admitted at trial, so there was no factual dispute for the jury to resolve, and (3) the
allegedly disputed evidence Jordan identified when he first requested the instruction
was not material to the challenged conduct’s lawfulness.
The Code of Criminal Procedure prohibits using evidence obtained in
violation of a defendant’s legal or constitutional rights. See Tex. Code Crim. Proc.
Ann. art. 38.23(a); Ramjattansingh v. State, 587 S.W.3d 141, 151 (Tex. App.—
Houston [1st Dist.] 2019, no pet.). “Evidence is not ‘obtained . . . in violation’ of a
provision of law if there is no causal connection between the illegal conduct and the
acquisition of the evidence.” Gonzales v. State, 67 S.W.3d 910, 912 (Tex. Crim.
App. 2002) (citations omitted); see also Ramjattansingh, 587 S.W.3d at 151
(explaining that “unlawfully obtained” means a causal connection between the
complained-of illegal or unconstitutional conduct and the acquisition of the
evidence). If the evidence raises a material fact issue about whether police obtained
evidence in violation of the defendant’s rights, the trial court must instruct the jury
“to disregard that evidence if it believes the evidence was unlawfully or
unconstitutionally obtained or if it has a reasonable doubt in this
regard.” Ramjattansingh, 587 S.W.3d at 151 (citing Jackson v. State, 468 S.W.3d
189, 199 (Tex. App.—Houston [14th Dist.] 2015, no pet.)).
81 A material fact issue warranting this instruction exists only when: (1) the
evidence heard by the jury raises a fact issue; (2) the evidence about that fact was
affirmatively contested; and (3) the contested fact issue was material to the
lawfulness of the challenged conduct in obtaining the statement alleged to be
involuntary. Oursbourn, 259 S.W.3d at 177; Ramjattansingh, 587 S.W.3d at 151.
Absent a dispute about a material fact, the trial judge alone determines the legality
of the conduct as a question of law. Madden v. State, 242 S.W.3d 504, 510 (Tex.
Crim. App. 2007). Further, if other undisputed facts are sufficient to support the
challenged conduct’s lawfulness, then the disputed fact issue is not submitted to the
jury because it is immaterial to the evidence’s ultimate admissibility. Id. The
disputed fact must be essential in deciding the challenged conduct’s lawfulness. Id.
at 511. “[T]o obtain a jury instruction under Article 38.23(a), the disputed fact must
be one that affects the determination of the legal issue.” Id. at 517.
If the determination of whether this constituted an investigative detention or
an arrest turned on Mitchell’s belief that Jordan was not free to leave, then a dispute
about that fact would require a jury instruction. See id. Jordan again notes alleged
discrepancies in Detective Mitchell’s trial testimony and suppression hearing
testimony about whether Jordan was free to leave. Even if a discrepancy in
Mitchell’s testimony existed, as explained above, this contradiction was not before
the jury. Further, an officer’s subjective belief or intent about whether a suspect was
82 free to leave is immaterial to whether (1) Jordan was under arrest at the McDonald’s
or detained, and (2) whether reasonable suspicion supported the detention. See
Matthews, 431 S.W.3d at 603 (disregarding officer’s subjective intent and looking
at totality of the circumstances through an objective lens to determine reasonable
suspicion); see also Stansbury, 511 U.S. at 323 (explaining custody determination
depends on interrogation’s objective circumstances, not the subjective views of the
person being questioned or the officer); Monjaras, 664 S.W.3d at 927 (same);
Dowthitt, 931 S.W.2d at 254 (same). “[W]hether a defendant was detained pending
an investigation is a legal determination for the court to make, rather than a fact issue
for resolution by the jury.” Ramjattansingh, 587 S.W.3d at 159 (citing Sheppard,
271 S.W.3d at 291).
We hold the disputed facts that Jordan argues warranted an article 38.23
instruction were immaterial to the challenged conduct’s legality, thus the trial court
did not err in refusing the instruction. See Oursbourn, 259 S.W.3d at 177; Madden,
242 S.W.3d at 510; Ramjattansingh, 587 S.W.3d at 151. We overrule issue twelve.
The trial court did not err in refusing to charge the jury on the lesser-included offense of manslaughter.
In issue thirteen, Jordan complains the trial court erred when it refused to
charge the jury on the lesser-included offense of manslaughter. During the charge
conference, Jordan argued the jury could conclude he acted recklessly. He asserted
83 there was evidence that would allow the jury to decide Jordan did not kill
intentionally or knowingly, “but consciously disregarded a substantial and
unjustifiable risk,” so manslaughter was appropriate. The defense noted Jordan’s
statement where he said there were three quick shots, and he ran. The State
responded no evidence supported an inference that Jordan was only guilty of
recklessly killing them or disregarding a substantial and unjustifiable risk that his
conduct could cause the result. The State further argued that “the whole trial has
been about self-defense which means . . . you are doing so intentionally and
knowingly.” The trial court refused to include manslaughter in the charge.
Capital murder’s requisite mental state is “intentionally or knowingly,”
whereas manslaughter’s culpable mental state is “recklessly.” Compare Tex. Penal
Code Ann. §§ 19.02(b)(1) and 19.03(a), with § 19.04(a). A person acts recklessly
with respect to the result of his conduct “when he is aware of but consciously
disregards a substantial and unjustifiable risk that . . . the result will occur.” Id. §
6.03(c).
As applicable here, a lesser-included offense is one which “differs from the
offense charged only in the respect that a less culpable mental state suffices to
establish its commission.” Tex. Code Crim. Proc. Ann. art. 37.09(3). We use the
two-step Aguilar/Rousseau test to determine whether an instruction on a lesser-
included offense should be given. Ritcherson v. State, 568 S.W.3d 667, 670 (Tex.
84 Crim. App. 2018); Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012);
Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). First, we compare the
statutory elements of the alleged lesser offense with the statutory elements and
indictment’s descriptive allegations. Ortiz v. State, 623 S.W.3d 804, 806 (Tex. Crim.
App. 2021) (citing Ritcherson, 568 S.W.3d at 670–71). Second, we ask whether
“‘there is some evidence in the record that would permit a jury to rationally find that,
if the defendant is guilty, he is guilty only of the lesser-included
offense.’” Id. (quoting Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim. App.
2016)). This second step requires (1) evidence directly refuting or negating other
evidence establishing the greater offense and raising the lesser-included offense, or
(2) evidence susceptible to different interpretations, one of which refutes or negates
an element of the greater offense and raises the lesser offense. Ritcherson, 568
S.W.3d at 6771.
Evidence raising the lesser offense must be affirmatively in the record. Id.
“[A] defendant is not entitled to a lesser-included offense instruction based on the
absence of evidence, and the evidence must be ‘directly germane to the lesser-
included offense[.]’” Id. (citing Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim.
App. 1997)). We consider all the evidence admitted at trial, and if more than a
scintilla of evidence raises the lesser offense and negates or rebuts an element of the
greater offense, the defendant is entitled to a lesser-charge instruction. Id.; Roy v.
85 State, 509 S.W.3d 315, 317 (Tex. Crim. App. 2017). It does not matter whether the
evidence is controverted or credible. Ritcherson, 568 S.W.3d at 671. In determining
whether Jordan had the intent to murder or only caused the deaths recklessly, the
sole question “is whether a jury could have reasonably interpreted the record in such
a way that it could find Appellant guilty of only manslaughter.” See id. at 676.
In support of the requested lesser-included instruction on manslaughter,
Jordan contends that “evidence suggested the events unfolded rapidly” when he
“was confronted by three (3) individuals in the small/confined space of a compact
car.” He adds that his statement “reflects that only three shots were fired in rapid
succession after [he] was startled and frightened by the actions of the other occupants
of the vehicle.” Jordan also points to the medical examiner’s testimony and that she
could not provide evidence that the shots were fired intentionally or knowingly or
determine where Rash and York were holding their heads. He points to Pinneri’s
testimony that Rash’s and York’s recent marijuana use would have affected them.
Finally, he argues he had no motive to kill Rash and York, and the fact that he did
not take the money in the car shows he acted recklessly.
Even if Jordan shot Rash and York to protect himself in response to
provocation, that is not evidence he did not shoot intentionally or knowingly with
the intent to kill them. “People acting in self defense often have the intent to kill or
to cause serious bodily injury.” Id. at 678. Likewise, the fact that he fired three shots
86 into the heads of three different individuals in a confined space rapidly, “does not
lend itself to a reasonable inference that [he] acted only recklessly.” See id.
Similarly, the absence of testimony from Pinneri regarding intent or Rash’s and
York’s head positions does nothing to support that Jordan acted only recklessly.
Further, evidence that Jordan left the scene after the shooting without taking money
does not inform the jury of his state of mind when he pulled the trigger. See Cavazos,
382 S.W.3d at 385 (explaining that where defendant pulled a gun, pointed it at
someone, pulled the trigger twice, fled the scene, and later told a friend he did not
mean to did not rationally support an inference that appellant acted recklessly at the
moment he fired the shots).
We agree the evidence shows Jordan fired a gun three times in the confined
space of a car. Despite his claims of a “chaotic” scene, by his own admission, each
of those three shots was separately aimed at the head of everyone in the car and fired
at close range. No evidence supports a reasonable inference Jordan believed the gun
was incapable of causing death. See Ritcherson, 568 S.W.3d at 678 (explaining that
where appellant stabbed victim in the chest, no evidence supported a reasonable
inference appellant believed the knife was not capable of causing death or serious
bodily injury). We conclude there is no reasonable interpretation of the evidence that
would allow a jury to rationally find that Jordan acted only recklessly when he shot
Rash and York in the head. See id.; Cavazos, 382 S.W.3d at 386; see also Tex. Penal
87 Code Ann. §§ 19.02(b)(1), 19.03(a), 19.04(a). Absent evidence that is susceptible to
an interpretation negating or refuting an element of the greater offense and raising
the lesser offense, the second step of the test is not met. See Ritcherson, 568 S.W.3d
at 671 (discussing requirements of two-step analysis for lesser-included offenses);
Cavazos, 382 S.W.3d at 386 (concluding second step of analysis was not met). Thus,
Jordan was not entitled to a jury instruction on the lesser-included offense of
manslaughter, and the trial court did not err in denying it. See Ritcherson, 568
S.W.3d at 671; Cavazos, 382 S.W.3d at 386. We overrule issue thirteen.
CONCLUSION
Having overruled all Jordan’s issues, we affirm the trial court’s judgment.
AFFIRMED.
W. SCOTT GOLEMON Chief Justice
Submitted on March 26, 2024 Opinion Delivered August 28, 2024 Do Not Publish
Before Golemon, C.J., Wright and Chambers, JJ.
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Waymon Nicholas Jordan Jr. v. the State of Texas, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waymon-nicholas-jordan-jr-v-the-state-of-texas-texapp-2024.