The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0144-25
VICTOR HUGO CUEVAS, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appellant’s Petition for Discretionary Review
From the Fourteenth Court of Appeals
Fort Bend County
MCCLURE, J., filed a concurring opinion in which WALKER, J., joined.
The majority assumed error because the court below found error, and because
the State did not file a petition from that adverse determination. I write separately to
discuss my belief that the prosecutor’s misstatements regarding self-defense were so
erroneous as to be the deciding factor in the Court’s determination that error in the
jury charge caused some harm to Appellant.
Cuevas Concurrence - 2
To my mind, the following slide, shown by the prosecutor to the venire panel,
illustrates why we are here:
Point number five is a bald misstatement of the law. Appellant’s timely
objection to this slide correctly pointed out that under Section 9.32 of the Penal
Code, the ongoing commission of a crime (other than a Class C offense) merely
eliminates the presumption that the use of deadly force was reasonable—it does not
preclude a jury from acquitting based on self-defense. See TEX. PENAL CODE §
9.32(b). As defense counsel explained at the end of voir dire, “It’s just a jury
question: Was the force reasonably used at the time under the circumstances. That’s
what it is. It has nothing to do with the presumption. That’s something different.”
Cuevas Concurrence - 3
Cuevas v. State, No. 14-22-00561-CR, 2024 Tex. App. LEXIS 2612, at *16 (Tex.
App.—Houston [14th Dist.] 2024).
This “misunderstanding of the law started with voir dire, and continued
through opening and closing statements.” Id. at *65 (Christopher, C.J., dissenting).
The harm caused by these erroneous statements was compounded by the trial court,
because each time an objection was made on this issue, the trial judge ruled in favor
of the State. This put defense counsel in the odd predicament of having to convince
the jury that not only did the State have the law wrong—the trial judge had it wrong,
too.
The State’s misstatements of self-defense law effectively twisted the
presumption of reasonableness in Section 9.32 of the Penal Code into a total bar to
Appellant’s claim of self-defense.
To better demonstrate this, consider the following hypothetical:
Imagine a woman walking down the street, wearing a shirt with a political
slogan on it while carrying a pound of a controlled substance in her purse. A passerby
becomes angry at the message on the woman’s shirt, so he pulls out a gun and points
it at the woman, threatening her. Before the man can pull the trigger, the woman pulls
Cuevas Concurrence - 4
a knife from her pocket and slashes at the man’s wrist. He drops the gun. The woman
is charged with aggravated assault with a deadly weapon.
If the misstatement of law advanced by the prosecutor in Appellant’s case were
applied to these facts, then this woman would not be able to claim self-defense. The
fact that the woman had a pound of drugs in her purse would strip her of the right to
defend herself against the man’s use of deadly force. This is not only legally incorrect,
it is nonsensical.
Under Texas’s self-defense law, the fact that this woman was “committing a
crime” by carrying a pound of drugs in her purse would not preclude her from
claiming self-defense. That she was carrying a pound of drugs means might mean she
is not entitled to the presumption that her use of force was reasonable, but it
absolutely would not prevent the jury from finding that her conduct was justified as
an act of self-defense.
To be clear, this suite of errors seems to have arisen not from malice, but from
a misunderstanding of the law, namely, an honestly, though erroneously held belief
that the presumption language in the Penal Code mandates that someone committing
a crime cannot be legally justified in using force to defend themselves. However, a
good faith misunderstanding of the law can be just as damaging as one held in bad
faith.
Cuevas Concurrence - 5
The jury’s punishment verdict shows the damage this misunderstanding did.
That the jury found sudden passion shows that it found the decedent engaged in
“provocation” that was “not solely the result of former provocation.” TEX. PENAL
CODE § 19.02(a)(2). What was the provocation? It was likely pulling a gun on
Appellant. This may have been the basis of Appellant’s acquittal had the law on self-
defense been explained to the jury correctly by the State and the bench.
With these thoughts, I concur in the judgment.
Filed: April 2, 2026
Publish