In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-24-00132-CR __________________
WILLIAM DALE CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 411th District Court San Jacinto County, Texas Trial Cause No. CR13937 __________________________________________________________________
MEMORANDUM OPINION
William Dale Carter appeals his conviction for aggravated assault on a family
member. Tex. Penal Code Ann. § 22.02(b)(1). Carter was indicted for causing
serious bodily injury by shooting his brother-in-law, Daniel, in the chest with a
revolver.1 Carter complains on appeal that the prosecutor engaged in a course of
1 To protect the victim’s privacy, we use pseudonyms to refer to the victim and his wife. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 1 conduct calculated to deny him a fair and impartial trial, that the trial court denied
his right to counsel by improperly restricting his closing argument, that the
prosecutor denied him a fair and impartial trial by injecting extraneous, unproven
offenses into the record, and that the trial court committed reversible error in the
guilt phase jury charge by not defining the offense as a result-oriented offense. We
affirm.
Background
Given Carter’s issues on appeal, we discuss only the testimony relevant to
Carter’s issues.
Brenda Walker
Brenda Walker is Carter’s sister and the victim’s wife. Brenda and Carter do
not get along. Because of past verbal interactions with her brother, Brenda’s attorney
advised her to record her interactions with Carter “in case any threats were made or
anything like that.” Brenda recorded part of the incident for which Carter was
indicted. Brenda testified she recorded the incident on her cell phone in her pocket
but did not know of any video recording of the incident. The trial court admitted the
audio recording at trial.
The property where the incident took place has been owned by Carter’s and
Brenda’s family for years. Brenda, Daniel and Carter live on the same tract of land
but have separate residences. Brenda denied the existence of an easement giving
2 Carter the right to use a road on her property to reach his house. Carter tried to get
Brenda to sign a document giving him an easement, but neither she nor her husband
signed anything granting Carter access. Brenda explained that just a few days before
the incident, the parties went to court and “[had that motion dismissed] so that we
could put a gate up…to stop whoever, anybody from coming through.”
Brenda placed a “no trespassing” sign on her property which she testified was
specifically for Carter. Brenda testified that Carter did not have the right to be on her
property when the incident occurred and that she and Daniel made it clear to Carter
that he had no right to be on their property.
On the morning of October 23, 2022, Brenda heard Carter’s truck in her
driveway. Carter went to the back of the property but came back through a pasture
gate and approached Brenda’s house. Brenda and Daniel walked out to the driveway
to speak to Carter. Brenda testified that she did not walk out to inflict any injury or
harm towards Carter. Neither Brenda nor Daniel had anything in their hands as they
approached Carter.
Daniel pointed to the “no trespassing” sign and asked Carter if he saw it.
Carter responded, “Do you see this, MF-er?” After Brenda heard Carter’s response,
she looked at Carter. She saw Carter with a gun, saw a flash, and heard the gun go
off. Brenda turned to Daniel, who had “a little spot on his shirt.” Daniel told Brenda
3 to “get down,” and Brenda and Daniel started running towards their house away
from Carter’s truck.
When the couple reached their house, Daniel told Brenda that he was shot in
the heart. Carter continued “to shoot at [Brenda and Daniel] as [they] were running
into the house. So [Daniel] got his shotgun and ran outside to shoot back.” Brenda
then called 911. The evidence at trial showed multiple rounds of shots were fired
into Brenda and Daniel’s house.
Brenda explained to the jury that there was tension regarding the disposition
of their parents’ assets and that Carter was not named as a beneficiary of their
parents’ will, whereas Brenda was. Brenda also explained there was tension with
Carter over his animals. Carter had a dog that was severely injured and appeared to
be suffering. Brenda texted Carter about the dog, but Carter was working and could
not tend to the dog, so Daniel shot the dog “to put it out of its misery.” Brenda denied
killing any of Carter’s other animals and livestock.
On cross-examination, Brenda agreed that the easement and ownership of the
family property was confusing, but that Carter does not need to use her driveway to
get to and from his house. After her husband was shot, Brenda described how Daniel
shot seven rounds at Carter’s truck. Daniel came into their house and talked to the
911 operator when a shot came from Carter’s house. Daniel told the 911 operator
4 that Carter was “shooting at us again, and he grabbed that Israeli shotgun and ran
out and started firing back.”
Brenda explained that when she approached the passenger side of Carter’s
truck, she did not have her phone in her hand. Her phone was either in her pocket or
clipped to her pocket. She denied putting her phone through the passenger-side
window. She made an audio recording of the incident but did not make a video
recording. She denied ever making a video recording of Carter.
Daniel
Daniel testified that leading up to the shooting, Carter insisted on seeing his
parents’ will, which caused problems with the family. Daniel also explained that
prior to the shooting, there had been disagreements about whether Carter had the
right to be on Daniel and Brenda’s property. Brenda’s parents had lived down the
road from Daniel and Brenda and had deeded one-third of their land to them.
Initially, Carter was not upset about the transfer of the property, but he became upset
when Daniel put a double-wide mobile home behind his in-laws’ house, which
required removing a section of fence. Daniel explained that he and Brenda were
allowed to use the driveway because it was on their property. A surveyor asked
Brenda and Daniel where they wanted the property line, but the line they chose
became a “point of contention” with Carter because Carter “would state that I built
5 that driveway. That’s my driveway.” Daniel did not know if Carter’s claims about
the driveway were true, because Daniel was not around when it was built.
Daniel testified that neither he nor Brenda ever gave Carter any kind of
easement but admitted that “Brenda had let him know that he could use the road as
he needed to.” According to Daniel, Carter had sued Brenda years earlier for access
to the driveway, and a judge had issued an order allowing him to use it during their
mother’s lifetime, but she eventually passed away, and a few days before the
shooting, Daniel and Brenda were granted a dismissal of the prior judge’s order.
Daniel then placed a “no trespassing” sign on a tree on their property. He believed
the sign served as notification to Carter that he was not allowed to use the driveway
anymore.
On the morning of the shooting, Daniel was making pancakes when he heard
Carter drive through the property. Daniel testified, “I didn’t want to stop what I was
doing, so I figured [Carter] was going to do what he needed to do and I’d approach
him on the way out[]” to let Carter know the “no trespassing” sign applied to him.
When Brenda and Daniel heard Carter start his pickup truck, they walked out
together and saw Carter driving slowly through the pasture. Neither Daniel nor
Brenda had anything in their hands. Carter approached the couple with his passenger
window down. Daniel walked up to the passenger window, pointed at the “no
trespassing” sign, and asked, “Dale, did you see that sign?” Carter responded, “You
6 see this, motherf---er?” Daniel saw Carter point the muzzle of a gun at him and then
realized that he had been shot.
Daniel testified that “it took a second to realize what had happened.” He
looked down and saw blood streaming out and told Brenda to “get down.” They
managed to get away from the truck, but Carter kept firing. The couple ran toward
their house, and Daniel got his shotgun and told Brenda to call 911 because he “got
shot in the heart.”
Daniel went outside and fired seven rounds as Carter continued to fire at the
couple. As Carter was leaving the driveway, Daniel reloaded and shot two more
times. Daniel admitted shooting in the direction of house which was ninety to one
hundred yards away. Daniel later discovered that his house had been “shot out” and
that Carter had continued firing shots as Daniel and Brenda were trying to get inside.
Daniel testified that Brenda had an audio recording of the incident but did not
videotape it.
The Appellant
Carter testified that he and Brenda started not to get along when she married
Daniel. According to Carter, the controversy over the property “started just by
intimidation.” Daniel and Brenda wanted Carter to move off of the property and
wanted “every inch of” the family property and “every dime” of his parents’ money
for themselves. Carter also testified that Daniel killed some of his animals.
7 Carter explained that on the morning of October 23, 2022, he was on the
“easement” that he built “40 years ago” because that was the only way he could get
to his property, and he needed to put horse feed in the feed room. As he was going
back out of the driveway, Brenda and Daniel walked up to his truck, so he stopped,
and Daniel and Brenda leaned against the open window of his truck. Carter testified
that he observed Daniel “reaching towards around his back…straight toward the
middle of his back where you normally keep one of those little hideaway guns at.”
Carter testified that he believed without a doubt that Daniel was reaching for a gun.
Carter believed that he was “fixing to get killed if I didn’t do something about it.” In
response, Carter pulled his gun from the console and shot Daniel in the chest. Carter
believed that if he didn’t shoot Daniel, he would “probably be dead right now.”
After Carter shot Daniel, Brenda and Daniel turned around and ran. Carter
said that Brenda still had her phone in her hand. Carter shot two more times into the
ground. Carter then drove to his house and Brenda and Daniel kept shooting. Carter
grabbed a lever-action rifle and shot in the direction of Brenda and Daniel’s house
in order to get them to stop shooting. After Daniel and Brenda stopped shooting,
Carter backed out onto the highway and left.
Carter testified that Brenda “definitely” took a video on the day of the incident
as Brenda frequently carries her phone in her right hand “videoing.”
8 On cross examination, the State questioned Carter about his conviction and
twenty-year sentence for home invasion in Illinois in 2002. The State also questioned
Carter about his parents’ will. Carter denied being cut out of his parents will, instead
claiming that the most recent will gave Carter one-third of his parents’ estate as they
wanted. Carter claimed that the will Brenda probated is invalid. The State offered,
and the trial court admitted, the application for probate and the last will and testament
of Carter’s father. Over objection from the defense, the trial court admitted a final
summary judgment that a mortgage company obtained against Carter.
Issue One: Prosecutorial Misconduct
In his first issue, Carter complains that the prosecutor engaged in a course of
conduct amounting to prosecutorial misconduct calculated to deny him a fair and
impartial trial. To preserve a complaint of prosecutorial misconduct, a defendant
must “(1) object on specific grounds, (2) request an instruction that the jury disregard
the comment, and (3) move for a mistrial.” Penry v. State, 903 S.W.2d 715, 764
(Tex. Crim. App. 1995); see also Tex. R. App. P. 33.1 (requiring as a prerequisite
for a complaint on appeal that such a complaint was timely made to the trial court
and that the trial court ruled on the complaint). The defendant’s failure to object to
prosecutorial misconduct at the earliest possible moment generally leaves the
complaint unpreserved for appellate review. See Penry, 903 S.W.2d at 764.
Therefore, to determine whether the various issues Carter claims as prosecutorial
9 misconduct were preserved for our review, we must examine the record to see
whether and when Carter claimed prosecutorial misconduct, and whether the trial
court ruled on any such complaint. See id.
In his appeal, Carter contends the State engaged in prosecutorial misconduct
at six points during the trial. The first instance of alleged misconduct “involve[s] the
evidence regarding whether Appellant had the right to be present at the location
where the shooting occurred, which was an important element regarding Appellant’s
self-defense claim.” Carter complains on appeal that Brenda and Daniel testified he
did not have an easement to travel on the driveway where the shooting took place
and that the couple obtained an order extinguishing the easement a few days before
the incident because there was “no evidence being introduced showing that
Appellant was aware of that order[.]” But Carter never objected to this testimony
during the trial.
Carter further complains about the admission of State’s Exhibit 46A – the
application for probate and last will and testament of Carter’s father – and the
admission of State’s Exhibit 46B – the summary judgment order in favor of a
mortgage company. Carter did not object to Exhibit 46A, and his only objection to
Exhibit 46B was “not relevant” to which the State responded:
[The State]: My response is that, Judge, he portrayed himself as being run off the property by [Daniel] and [Brenda] when in fact a mortgage company got a judgment against him for defaulting on mortgage payments. 10 [Carter’s counsel]: And there again, Judge, he was in possession of it. He wasn’t evicted, so he’s in possession of the property.
The trial court admitted State’s Exhibit 46B. Carter failed to object to the testimony
of Brenda and Daniel he identifies in his brief. Carter also failed to object to the
admission of State’s Exhibit 46A. Carter failed to bring his complaints to the trial
court’s attention and to seek a ruling on them. Although he objected to Exhibit 46B
on the basis of relevance, he made no objection that the State was engaging in
prosecutorial misconduct by offering the exhibit into evidence. Nor did Carter move
for a mistrial or new trial on the basis that the State committed prosecutorial
misconduct with respect to these issues. “We are not hyper-technical in examination
of whether error was preserved, but the point of error on appeal must comport with
the objection made at trial.” Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim.
App. 2014). Because Carter failed to raise the issue of prosecutorial misconduct at
any point while the trial court had the ability to address his complaint, he failed to
preserve it for appellate review. Tex. R. App. P. 33.1(a)(1); Hajjar v. State, 176
S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (addressing
prosecutorial misconduct argument and concluding: “By failing to object on this
theory at trial, appellant preserved nothing for our review.”).
Carter contends that we should address his complaint even if he did not
preserve it because the introduction of the evidence regarding his right to be on the
11 property was “akin to introducing false evidence before the jury, which is a violation
of Appellant’s right to due process.” In Compton v. State, 666 S.W.3d 685, 731 (Tex.
Crim. App. 2023) the Court of Criminal Appeals held that even prosecutorial
misconduct that rises to the level of a due process violation may be subject to
procedural default. The court declined to consider, either “separately or
cumulatively,” unchallenged instances of alleged misconduct. Id. Thus, “[a] due-
process, fair-trial objection is required ... to preserve a complaint on appeal that the
prosecutor engaged in serious and continuing prosecutorial misconduct so as to
effectively deprive a defendant of due process or a fair trial.” Mullinax v. State, No.
02-14-00237-CR, 2015 Tex. App. LEXIS 5409, at *3 (Tex. App.—Fort Worth May
28, 2015, pet. ref’d) (mem. op., not designated for publication) (citing Clark v. State,
365 S.W.3d 333, 339-40 (Tex. Crim. App. 2012)); see also Taylor v. State, Nos. 09-
16-00303-CR, 09-16-00307-CR, 2018 Tex. App. LEXIS 3426, at **16-17 (Tex.
App.—Beaumont May 16, 2018, pet. ref’d) (mem. op., not designated for
publication). “The cumulative-error doctrine does not apply unless the complained-
of errors have been preserved for appeal and are actually errors.” Schmidt v. State,
612 S.W.3d 359, 372 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (citing
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)). Since Carter
failed to preserve error regarding the alleged incidences of prosecutorial misconduct,
12 we conclude there is no cumulative error or harm. See Schmidt, 612 S.W.3d at 372
(citing Buntion v. State, 482 S.W.3d 58, 79 (Tex. Crim. App. 2016)).
In his second subpoint, Carter complains that the State offered evidence
regarding the details of Carter’s conviction for home invasion as well as evidence
for which Carter was acquitted. The State offered into evidence Exhibit 65, which
included the information charging Carter with one count of home invasion and two
counts of aggravated sexual assault, as well as the judgment order sentencing for the
offense of home invasion. Carter initially objected to the State’s questioning
regarding the home invasion:
[State]: You went to trial and had a trial and a jury found you guilty of home invasion. Do you remember that?
[Carter]: Yes, I do. Part of it.
[State]: In fact, if fact, if this is you, William D. Carter, 1/19/1953. That’s you?
[Carter]: Is that my birthday?
[State]: Yes.
[Carter’s counsel]: Judge, I object to this. And he’s already, he’s already admitted he had that conviction. And so this is unnecessary and prejudicial, and object to it.
[State]: None of this came out during direct. I’m just establishing the fact that he’s the same person on this document because none of it came out.
13 The trial court overruled Carter’s “unnecessary and prejudicial” objection,
and when the State offered Exhibit 65 into evidence, Carter did not object. On
appeal, Carter makes the additional argument that the admission of Exhibit 65 was
a violation of Texas Rule of Evidence 609(a). Once again, Carter’s objection on
appeal does not comport with his objection at trial; therefore, nothing is preserved
for our review on appeal. See Bekendam, 441 S.W.3d at 300; Tex. R. App. P.
33.1(a)(1).
In his third subpoint, Carter complains about comments the prosecutor made
in the presence of the jury while responding to Carter’s objection to the State’s
questions about the victim in the home invasion case.
[State]: Was that the victim on the case where you went to prison --
[Carter’s counsel]: Excuse me.
[State]: -- in Illinois?
[Carter’s counsel]: Excuse me, Judge, we’ve already been over that. It’s admitted. He got a conviction, and the rest of this is immaterial and irrelevant. He’s got a conviction. They got it in evidence.
[State]: The door is opened to his prior bad acts as it surrounds to this. Other threats made about on recordings and other threats made to other women. He portrayed himself judge as being framed, my dogs were being framed, my dogs were being terrorized, and this was [Daniel’s] quote, modus operandi, habit, and all these other things. He’s made a false impression to the ladies and gentlemen of the jury that he’s some kind of innocent defenseless man where I have a mountain of evidence here that rebuts this defensive theory. So it’s not just that I’m just going behind the conviction, but I have a number of extraneous acts here that
14 were committed at the hands of this defendant, not only to [Daniel] but to other women.
[Carter’s counsel]: I’m going, I’m going to object to him going into that. None of that’s in evidence at this point. They got one felony conviction that’s in evidence. And going into the facts and so forth and so on is --
[Trial court]: Sustained.
[State]: I’m asking respectfully for a hearing outside the presence of jury.
After further discussion outside the presence of the jury, the trial court
maintained its ruling sustaining defense counsel’s objection to the details of the
Illinois conviction. On appeal, Carter contends that “injecting matters that are
outside the record, through jury argument, sidebar remarks or argument regarding
an objection, is clearly improper” and that the prosecutor’s remarks “show a willful
and calculated effort on the part of the State to deprive Appellant of a fair and
impartial trial.” Because Carter did not object on the basis of prosecutorial
misconduct as soon as possible after it occurred, he has not preserved the issue for
our review. See Penry, 903 S.W.2d at 764.
In his fourth subpoint, Carter contends the State engaged in prosecutorial
misconduct by calling him names on several occasions during closing argument. On
appeal, Carter identifies five instances of name calling. First, the prosecutor referred
to Carter as “a despicable piece of garbage[.]” Carter did not object to this comment.
Second, the prosecutor called Carter “Mr. Tough guy.” Carter did not object to this 15 name-calling. Third, the prosecutor called Carter “crazy. He’s bat crazy.” Carter did
not object to this statement either. Fourth, the prosecutor referred to Carter as “[t]his
long haul truck driving garbage[.]” Carter also did not object to this comment.
Because Carter did not object to the above identified comments which he
complains of on appeal, he has not preserved his argument on appeal. See Tex. R.
App. P. 33.1(a)(1). However, Carter did object to one of the instances of name-
calling which he complains of on appeal. During closing argument, the following
exchange occurred:
[State]: And I could either do it now or I could do it after [defense counsel] speaks, and I commend [defense counsel]. We tried a clean case. [Defense counsel] is a good man, all right. But he drew a 2-7 offsuit in a Texas hold’em hand when it came to the facts of this case. There’s been no hostility or animosity between us, and that’s in this stressful being that we have a very healthy thing.
So I commend [defense counsel], because [defense counsel] ensures that even despicable individuals like this selfish son of a bitch right here --
[Carter’s counsel]: Excuse me, Judge. I’m going to object to that reference and ask that be stricken.
[Trial court]: Sustained. Stricken from the record.
[Carter’s counsel]: Ask the jury to disregard.
[Trial court]: Jury should disregard.
[Carter’s counsel]: The rules require me to ask for a mistrial.
[Trial court]: Denied.
16 From the context in which it was made, Carter’s objection was sufficient to
preserve his complaint for our review, and we agree that the complained of argument
was improper. See Ponce v. State, 299 S.W.3d 167, 175 (Tex. App.—Eastland 2009,
no pet.). Proper areas of jury argument include: (1) a summation of the evidence
presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer
to opposing counsel’s argument; or (4) a plea for law enforcement. See Jackson v.
State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). “A prosecutor should not refer
to a defendant by any name other than his given name or nickname.” Ponce, 299
S.W.3d at 175. “It is improper to refer to a defendant by a derogatory term designed
to subject him to personal abuse.” Id.
That said, “[r]emarks that fall outside the permissible bounds of jury argument
are not constitutional errors.” Gilcrease v. State, 32 S.W.3d 277, 279 (Tex. App.—
San Antonio 2000, pet. ref’d). “Such remarks constitute ‘other errors’ that fall within
Texas Rule of Appellate Procedure 44.2(b).” Id. (quoting Tex. R. App. P. 44.2(b).
“We must disregard error that does not affect the accused’s substantial rights.” Id.
To determine whether the State’s improper argument affected Carter’s substantial
rights, we look to three factors: (1) the severity of the misconduct, (2) measures
adopted to cure the misconduct, and (3) the certainty of conviction absent the
misconduct. Id.
17 Here, the State referred to Carter as a “son of a bitch” one time, and Carter
promptly objected. Although the State referred to Carter as other names during
closing argument, Carter did not object to any of these names. The trial court
promptly gave an instruction to disregard the prosecutor’s comment, and we
presume the jury followed the trial court’s instruction. See Colburn v. State, 966
S.W.2d 511, 520 (Tex. Crim. App. 1998). In the absence of anything in the record
to rebut this presumption, we conclude the trial court’s careful and prompt
instruction to the jury to disregard the prosecutor’s remarks was sufficient to cure
any harm the remarks might have caused. See Galloway v. State, 716 S.W.2d 556,
557 (Tex. App.—Waco 1986, pet. ref’d). Accordingly, we cannot say that the
prosecutor’s improper name-calling denied Carter the right to a fair and impartial
trial, nor that it affected Carter’s substantial rights. See Tex. R. App. P. 44.2(b).
In his fifth subpoint, Carter complains that the prosecutor made improper
objections to Carter’s closing argument which were incorrectly sustained by the trial
court. As part of Carter’s fifth subpoint, he complains of the following objection
made by the State:
[Carter’s counsel]: But let’s say there’s a lot of dispute about this whole case. One side thinks this, the other side thinks that. We’re not going to get that resolved here by this jury. That’s a whole another case. Probably --
[State]: I object to that. Because it has been resolved. It wasn’t his property it was their property, and I object.
18 [Carter’s counsel]: That’s a jury question, Judge.
[State]: Actually, it’s not. There’s nothing in here about a property dispute. Nothing. I respectfully object to this.
[Trial court]: This is defense’s argument.
Although the State’s objection was not sustained and the trial court did not
prevent Carter’s counsel from making further arguments about the existence of a
“property dispute,” Carter complains on appeal that the State’s objection “is still
trying to falsely use those exhibits [the will and the summary judgment], on top of
the alleged extinguishment of the easement, for which there was no evidence to show
Appellant had received notice, to prove Appellant didn’t have any authority to be on
the property.” To preserve an issue for appellate review, a party must make a timely
and specific objection and obtain an adverse ruling. Id. 33.1(a)(1)(A). The record
does not contain a ruling that was adverse to Carter on this issue, and Carter did not
object to the State’s objection on the grounds that it constituted prosecutorial
misconduct. Therefore, there is nothing preserved for our review.
Each of the State’s objections to Carter’s jury argument which was sustained
and about which Carter complains on appeal is also asserted, in his second through
fifth issues, as constituting a denial of his right to counsel. Because there was no
objection to prosecutorial misconduct in any of these exchanges, we conclude
Carter’s prosecutorial-misconduct complaints were not preserved for our review,
19 and we will address them separately as denial-of-counsel issues in Carter’s second
through fifth issues, below.
In his sixth subpoint, Carter complains of following statements made by the
prosecutor during closing argument:
• “The brother-in-law that had given this defendant notice not to come on to the
property. The brother-in-law who said who verified he was cut out of the
will.”
• “Who is trespassing? Him.” … “[Carter] goes over to [Daniel] and Brenda’s
house knowing he wasn’t supposed to be there.”
• “Even now, and I mentioned to you during jury selection, and I know it’s been
a long three days with proper pleadings and proper proof, here it is. Proper
proof. It’s in evidence. He went to the pen in Illinois for home invasion. Not
possession of a gun, not possession of drugs, but it’s right here. A 20-year
sentence. I don’t care if he didn’t do all of it or not, but it speaks for itself.”
Carter did not object to any of these arguments, whether based on
prosecutorial misconduct or otherwise. The issue is not preserved for review on
appeal. Id. 33.1(a)(1); Hajjar, 176 S.W.3d at 566 (addressing prosecutorial
misconduct argument and concluding: “By failing to object on this theory at trial,
appellant preserved nothing for our review.”).
We overrule Carter’s first issue.
20 Issues Two through Five: Denial of Counsel by Limiting Jury Argument
In issues two through five, Carter complains that the trial court denied his right
to counsel by improperly restricting his closing argument by sustaining the State’s
objections to his arguments. We review a trial court’s rulings on the State’s
objections to Carter’s jury argument for abuse of discretion. See Davis v. State, 329
S.W.3d 798, 825 (Tex. Crim. App. 2010). The trial court has broad discretion in
controlling the scope of the closing argument, and the trial court abuses its discretion
if its decision is arbitrary or unreasonable. Wilson v. State, 473 S.W.3d 889, 902
(Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). A defendant is not entitled to
make a jury argument that misstates the law or is contrary to the court’s charge. See
Thomas v. State, 336 S.W.3d 703, 713 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d). We determine de novo whether a defendant has misstated the law during jury
argument. See id.
“[P]roper jury argument generally falls within one of four general areas: (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3) answer
to argument of opposing counsel; and (4) plea for law enforcement.” Brown v. State,
270 S.W.3d 564, 570 (Tex. Crim. App. 2008). “To constitute reversible error, the
argument must be manifestly improper or inject new, harmful facts into the case.”
Jackson, 17 S.W.3d at 673.
21 “Counsel is entitled to correctly argue the law, even if the law is not included
in the jury charge.” Vasquez v. State, 484 S.W.3d 526, 531 (Tex. App.—Houston
[1st Dist.] 2016, no pet.). “Prohibiting defense counsel from making a particular jury
argument when counsel is entitled to do so is a denial of the defendant’s right to
counsel.” Id. “However, neither the State nor the defense may use closing argument
as a vehicle to place before the jury evidence that is outside the record.” Id.
In issue two, Carter claims the trial court erred by sustaining the State’s
objection to a portion of Carter’s closing argument in which Carter argued that there
was no video recording of the events surrounding the shooting because the video
would have shown that Daniel had a pistol:
[Counsel for Carter]: So it’s sort of, but part of it is let’s get rid of, let’s get rid of brother. Let’s get rid of William Dale Carter. Get him out of here some way. Just make him uncomfortable. Let’s run out there with a tape recorder. How would anybody like that? Somebody wants to talk to him they run up there with a tape recorder. And in this instance, the testimony from William Dale Carter is they came up there, okay. They didn’t want him driving. They wanted him to stop. They’re coming out there to the truck, get up there in the window, so the brother-in-law’s up here leaning on the truck window --
[State]: I object to that not being supported by the evidence, Judge.
[The Court]: Sustained.
[Carter’s counsel]: Okay. So, and so, anyway, here’s the sister, Brenda, she’s got her phone. Most of these phone people take pictures, the video, and sound and video. Anyway, we hadn’t seen any video from that. She says it’s just sound. But we say maybe, maybe the reason there’s no video is because her husband had a pistol.
22 [State]: I object to that also as being unsupported by the evidence, Judge.
[Carter’s counsel]: It’s in the record, Judge.
[State]: It’s not, and I respectfully object.
Carter contends that that there was evidence in the record that Brenda had her
phone in her hand, and based on that evidence, Carter’s counsel made a reasonable
deduction that there was no video because it would have supported Carter’s version
of the events that Daniel had a pistol and Carter shot Daniel to defend himself. But
in the absence of any evidence to support Carter’s assertion there was no video
because it would have shown Daniel had a pistol, the trial court may have reasonably
concluded Carter’s theory was mere speculation. We conclude the trial court was
within its discretion to sustain the State’s objection, and we overrule Carter’s second
issue.
In issue three, Carter complains the trial court erred by sustaining the State’s
objection to a portion of Carter’s closing argument in which Carter argued Daniel’s
intention to kill Carter:
[Counsel for Carter]: So here’s one bullet from a pistol. Here’s another bullet from a pistol. And this one right here right above, right above the driver’s, what was that, four inches above maybe the driver’s head? So this could have easily been, this could have easily been the death of William Carter in this case. Easily, he could have been killed. This is what’s in the mind, this right here, this right here is what Mr. Brother-
23 in-law, [Daniel], this is his intention. This was [Daniel’s] intention right here.
So it is really so difficult to say that William Carter believes his brother- in-law is going to kill him? Because this shows what his intent. This is the real thing. This is shotgun shell. One, boom, boom, boom, boom. I think he said 15 times, whatever it was. This is 12-gauge right at his truck as he’s driving by. And not even, he’s not shooting back at this point. He’s driving the truck. He’s not shooting that powder gun at this time. The guy just, the brother-in-law wants to kill him. That’s not even, that’s not justified right there. So that’s what’s going on.
[State]: I object to that being also a misstatement of the law, Judge. All of this happened after he shot him with a bullet in his chest, and I respectfully object.
Carter complains that the trial court improperly sustained this argument
because Carter testified during trial that he and Daniel had a bad relationship and
that his reason for shooting Daniel was because he believed Daniel was reaching for
a small gun behind his back. We agree that this was proper jury argument. Carter’s
jury argument in this instance was proper because it was a summation of the
evidence and a reasonable inference from the evidence.
Nevertheless, we conclude that if the trial court erred, any such error was
harmless. The denial of the right to counsel is constitutional error that is subject to a
harm analysis under Rule 44.2(a) of the Texas Rules of Appellate Procedure.
Vasquez, 484 S.W.3d at 532 (citing Tex. R. App. P. 44.2(a)). An appellate court
“must reverse a judgment of conviction or punishment unless the court determines
24 beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.” Tex. R. App. P. 44.2(a). “In applying the harmless error test, the
primary question is whether there is a ‘reasonable possibility’ that the error might
have contributed to the conviction or punishment.” Vasquez, 484 S.W.3d at 532
(quoting Mosely v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)).
The State made its objection after Carter made his argument to the jury that
the evidence showed Daniel’s intention was to kill Carter. The trial court merely
sustained the State’s objection; it did not instruct the jury to disregard the argument.
Assuming without deciding the trial court erred in sustaining the State’s objection,
any such error was harmless since the record does not reveal the extent to which
defense counsel intended to continue or expound upon this argument. See Wilson,
473 S.W.3d at 902-03 (holding any error committed by the trial court in sustaining
the State’s objection to the pertinent portions of the closing argument of the
defendant’s trial counsel was harmless because the trial court did not instruct the
jury to disregard the argument); Price v. State, 870 S.W.2d 205, 209 (Tex. App.—
Fort Worth), aff’d, 887 S.W.2d 949 (Tex. Crim. App. 1994) (“Where the record does
not fully demonstrate to the reviewing court what counsel would have argued but for
an objection, no demonstration of harmful error is made.”). We overrule Carter’s
third issue.
25 In his fourth issue, Carter complains the trial court improperly sustained the
State’s objection to the following argument:
[Carter’s counsel]: So who owns the property out there? You’d have to get a title company to run, you’d have to do a lot of legal research, title research who owns this or that --
[State]: I’m going to object to all of that too. None of that came out. There wasn’t a word of evidence about that. I respectfully object.
Carter complains that the evidence admitted at trial showed that there was
conflict between the parties regarding whether or not Carter had an easement on the
driveway where he shot Daniel. But, again, even if we were to assume the trial court
erred in sustaining the State’s objection, we conclude any such error was not harmful
because there was no instruction by the trial court to disregard the argument
preceding the objection, and there is nothing in the record showing what Carter’s
counsel would have argued but for the trial court’s ruling on the objection. See
Wilson, 473 S.W.3d at 902-03; Price, 870 S.W.2d at 209. We overrule Carter’s
fourth issue.
In his fifth issue, Carter complains the trial court improperly sustained the
[Carter’s counsel]: Okay. So, now, he’s not obligated, nobody’s obligated to retreat. Texas law. A person who, a person provoked doesn’t have to retreat. Presumption of reasonable belief, reasonable belief that he’s in that kind of danger applies unless the State proves beyond a reasonable doubt that the facts giving rise to a presumption 26 do not exist. That really doesn’t apply because he’s thinking he’s in serious danger. So that’s where you are.
Now, another part of this that’s important it’s your duty to consider all relevant facts and circumstances surrounding the shooting and the previous relationship existing between the accused and the defendant. What’s their relationship? That all came in. You got to consider that with all the relevant facts and circumstances going to show the condition, the condition of the mind of the accused at the time of the alleged offense. So it’s what Mr. Carter believes based on all this stuff that’s been going on.
[State]: That’s also a misstatement of the law, and I object. It’s what a reasonable person believes.
[Carter’s counsel]: Okay. So, anyway, you’ve got the instruction and can read that, so forth and so on. And so the Court’s telling you if you find from the evidence or have a reasonable doubt thereof that the defendant reasonably believed that deadly force when and to the degree used was immediately necessary, that the defendant reasonably believed, this is written down here, that the defendant reasonably believed deadly force when and to the degree used --
[State]: That’s a misstatement of the law, and I respectfully object.
[Carter’s counsel]: I’m reading from the jury charge.
Consistent with the Texas Penal Code, the trial court’s charge gave the jury
the following instructions on self-defense and the use of deadly force:
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 the other’s use or attempted use of unlawful force.
The use of force against another is not justified in response to verbal provocation alone. 27 A person is justified in using deadly force against another:
(1) if the person would be justified in using the force against the other; and
(2) when and to the degree the person reasonably believes the deadly force is immediately necessary:
(A) to protect himself against the other’s use or attempted use of unlawful deadly force; or
(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
[…]
A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force and the finder of fact, when determining whether the actor reasonably believed that the use of deadly force was necessary, may not consider whether the actor failed to retreat.
You are further instructed that it is your duty to consider all relevant facts and circumstances surrounding the alleged offense and the previous relationship existing between the accused and the complainant, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the alleged offense.
Now, therefore, bearing in mind the foregoing definitions, instructions and presumption, if you believe from the evidence beyond a reasonable doubt that the defendant, WILLIAM DALE CARTER in San Jacinto County, Texas Texas, [sic] on or about the 23rd day of October 2022, 28 did then and there intentionally or knowingly cause serious bodily injury to [Daniel]. [sic] by shooting him with a black-powder pistol as alleged in the indictment; but you further find from the evidence, or have a reasonable doubt thereof, that the defendant reasonably believed, or is presumed to have reasonably believed that deadly force when and to the degree used, if it was, was immediately necessary to protect himself against the use or attempted use of unlawful deadly force by the said [Daniel]; you will acquit the defendant and say by your verdict “not guilty.”
See Tex. Penal Code Ann. §§ 9.31(a), 9.32(a). The jury charge defined “reasonable
belief” to mean “a belief that would be held by an ordinary and prudent person in
the same circumstances as the defendant.” “The ‘reasonably believe’ language
contains subjective and objective components.” Lozano v. State, 636 S.W.3d 25, 32
(Tex. Crim. App. 2021). “A defendant must subjectively believe that another person
used or attempted to use unlawful force (Section 9.31) or deadly force (Section 9.32)
against the defendant and that the defendant’s use of unlawful or deadly force in
response was immediately necessary.” Id. “Second, a defendant’s subjective belief
must be reasonable.” Id. “A reasonable belief is one held by an “ordinary and prudent
man in the same circumstances as the actor.”” Id. (quoting Tex. Penal Code Ann. §
1.07(a)(42)).
The portion of defense counsel’s argument addressing the subjective
component of the definition of “reasonable belief” could be considered a
“misstatement of the law” only to the extent it failed to address the objective
component, but after the objection, defense counsel proceeded to address the
29 objective component. Taken as a whole, the argument does not misstate the law, and
although the trial court sustained the objection, the trial court did not instruct the jury
to disregard any portion of the argument, nor does the record reveal that defense
counsel was prevented from making any additional arguments addressing the issue.
See Wilson, 473 S.W.3d at 902-03; Price, 870 S.W.2d at 209; Joiner v. State, No.
08-18-00118-CR, 2020 Tex. App. LEXIS 6462, at *53 (Tex. App.—El Paso Aug.
13, 2020, pet. ref’d) (not designated for publication) (“[T]here is no improper
restriction on a defendant’s jury argument amounting to a denial of counsel where
the defendant is able to convey the gravamen of his argument to the jury despite the
trial court’s curtailment of a particular portion of his argument.”). After the
objection, defense counsel continued to address self-defense and the use of deadly
force, directing the jury’s attention to the charge which included both the subjective
and objective components of “reasonable belief.” On this record, we cannot
conclude there is a reasonable possibility that the trial court’s sustaining of the
State’s objection may have contributed to the conviction or punishment. See
Vasquez, 484 S.W.3d at 532. We overrule Carter’s fifth issue.
Issue Six: Extraneous Offenses
In his sixth issue, Carter complains that the prosecutor denied him a fair and
impartial trial by injecting extraneous, unproven offenses into the record. Carter asks
us to consider his arguments he made in issue one, subpoint three. Carter does not
30 advance any new arguments in his sixth issue as to how or why he was denied a fair
trial. Given our resolution in issue one, subpoint three, we overrule Carter’s sixth
Issue Seven: Jury Charge
In his seventh issue, Carter complains that the trial court committed reversible
error in the guilt phase jury charge by not defining the offense as strictly a result-of-
conduct offense. Specifically, he complains that the trial court defined the terms
“intentionally” and “knowingly” in the jury charge to include both the nature-of-
conduct and result-of-conduct definitions. Where an appellant raises jury-charge
error on appeal, the degree of harm necessary for reversal depends on whether the
appellant preserved the error by a timely objection at trial. Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985). When, as here, the defendant fails to object
or states in the trial court that he has no objection to the charge, we will not reverse
for jury charge error unless the record shows “egregious harm” to the defendant. See
State v. Ambrose, 487 S.W.3d 587, 595 (Tex. Crim. App. 2016) (“[U]npreserved
jury-charge error does not require a new trial, even when the error is complained of
in a motion for new trial, unless the error causes ‘egregious harm.’”); Ngo v. State,
175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Bluitt v. State, 137 S.W.3d
51, 53 (Tex. Crim. App. 2004); Almanza, 686 S.W.2d at 171. “Errors that result in
egregious harm are those that affect the very basis of the case, deprive the defendant
31 of a valuable right, or vitally affect a defensive theory.” Ngo, 175 S.W.3d at 750
(internal quotations omitted). An appellant must have suffered actual harm, not
merely theoretical harm. See Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.
App. 2012) (citing Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986)).
We review jury charge error by a two-step process. Ngo, 175 S.W.3d at 744.
First, we determine whether error exists in the jury charge. Id. Second, we determine
whether sufficient harm was caused by the error to require reversal. Id. To determine
whether egregious harm resulted, we examine “the entire jury charge, the state of
the evidence, including the contested issues and weight of 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.
Section 6.03 of the Texas Penal Code sets out four culpable mental states –
intentionally, knowingly, recklessly, and criminally negligent. Price v. State, 457
S.W.3d 437, 441 (Tex. Crim. App. 2015). In the jury charge, the language regarding
the culpable mental state must be tailored to the conduct elements of the offense. Id.
A trial court errs when it fails to limit the language regarding the applicable culpable
mental states to the appropriate conduct element. Id. If the gravamen of an offense
is the result of conduct, the jury charge on culpable mental state should be tailored
to the result of conduct and likewise for nature-of-conduct offenses. Id. However, if
the offense has multiple gravamina, and one gravamen is the result of conduct and
32 the other is the nature of conduct, the jury charge on culpable mental state must be
tailored to both the result of conduct and the nature of conduct. Id.
A person commits the offense of aggravated assault if he intentionally,
knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly
weapon during the commission of the assault. Tex. Penal Code Ann. § 22.01(a)(1),
22.02(a)(2). Aggravated assault is a result-oriented offense. Landrian v. State, 268
S.W.3d 532, 537 (Tex. Crim. App. 2008). “It is error for a trial judge to not limit the
definitions of the culpable mental states as they relate to the conduct elements
involved in the particular offense.” Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim.
App. 1994). Nevertheless, if the application paragraph of the jury charge points the
jury to the appropriate portions of the definitions, an error in providing definitions
that do not limit the jury to considering only the results of the defendant’s conduct
is considered harmless error. Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App.
1995) (en banc); Hughes v. State, 897 S.W.2d 285, 296-97 (Tex. Crim. App. 1994).
Here, the jury charge defined “intentionally” and “knowingly” as follows:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. 33 In this case, the charge’s definitions of “intentionally” and “knowingly”
mirrored the definitions in the Texas Penal Code and did not limit the jury’s
consideration to whether Carter intended or acted with knowledge regarding the
result of his conduct. See Tex. Penal Code Ann. § 6.03(a), (b). However, the
application paragraph of the charge instructed the jury to find Carter guilty if he
“intentionally, knowingly, and recklessly cause[d] serious bodily injury to [Daniel],
by shooting [Daniel] in the chest with a black-powder revolver, and did then and
there use or exhibit a deadly weapon, namely a black-powder revolver[.]” Because
the application paragraph limited the jury’s consideration to whether Carter acted
with the requisite state of mind regarding the result of his conduct, we are confident
the jury’s decision to find Carter guilty was based on the result of his conduct. We
conclude that the facts, as applied to the law in the application paragraph of Carter’s
jury charge, pointed the jury to the appropriate portions of the definitions of the
terms intentionally and knowingly.
Carter does not direct us to any evidence, nor any argument of counsel, that
Carter could have intended the nature of his conduct (shooting Daniel in the chest)
without intending or being reasonably certain about the result of his conduct (causing
serious bodily injury). Rather, Carter’s defense was that he shot Daniel in self-
defense because he believed Daniel was reaching for a gun. The charge’s abstract
definitions of “intentionally” and “knowingly” did not affect the very basis of the 34 case, deprive Carter of a valuable right, or vitally affect his defensive theory. Ngo,
175 S.W.3d at 750. Therefore, we conclude that the trial court’s failure to limit the
definitions of those terms did not result in egregious harm. Patrick, 906 S.W.2d at
492-93; Hughes, 897 S.W.2d at 296-97; Coleman v. State, 279 S.W.3d 681, 686-87
(Tex. App.—Amarillo 2006), aff’d, 246 S.W.3d 76 (Tex. Crim. App. 2008). We
overrule Carter’s seventh issue.
Conclusion
Having overruled all of Carter’s issues, we affirm the judgment of the trial
court.
AFFIRMED.
KENT CHAMBERS Justice
Submitted on August 22, 2025 Opinion Delivered January 7, 2025 Do Not Publish
Before Golemon, C.J., Johnson and Chambers, JJ.