CUEVAS, VICTOR HUGO v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0144-25

VICTOR HUGO CUEVAS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

FORT BEND COUNTY

PARKER, J., delivered the opinion of the Court in which

RICHARDSON, NEWELL, WALKER, and MCCLURE, JJ., joined. MCCLURE, J.,

filed a concurring opinion in which WALKER, J., joined. KEEL, J., concurred.

YEARY, J., filed a dissenting opinion in which FINLEY, J., joined and SCHENCK,

P.J., joined as to part 6.

OPINION

Throughout the trial, this case included serious misstatements of law that

CUEVAS — 2

were buttressed by the trial judge’s rulings. In voir dire, opening statements, and

closing arguments, the State took the position that Appellant could not assert self-

defense because he was engaged in the commission of a crime during the shooting

even though the law deprives a defendant of only a presumption of reasonableness

if he commits a crime at the time he uses force in defense of himself. Concluding

that it was uncontroverted that Appellant was committing a crime at the time of the

incident, the court of appeals found that it was error to include a presumption-of-

reasonableness instruction in the jury charge. Nevertheless, the court of appeals

held that this erroneous inclusion was harmless. Appellant contends, among other

things, that the court of appeals erred in its harm determination. We agree.1

1

We granted Appellant’s first two grounds for review. In ground one, Appellant claimed,

among other things:

The Court of Appeals majority erred in finding harmless error

where:

...

b) the prosecutor erroneously repeatedly misstated during jury

selection, the defense opening statement, and final argument that

the law did not allow Petitioner to claim self-defense because he

was engaged in criminal activity and the trial judge repeatedly

erroneously ruled in favor of the misstatements by the prosecutor,

c) over defense objections, the trial judge erroneously included a

charge which stated a person does not get a self-defense

presumption of reasonableness if he is engaged in criminal activity

as well as a provocation charge.

CUEVAS — 3

I. BACKGROUND

A. The Incident

In July 2017, while eating sushi at a shopping center, Juan Garza saw

Appellant and his friend Milton Egbe (Egbe) on two motorcycles speed into the

parking lot. Appellant got off his motorcycle and walked over to a parked car to

speak to Osiekhuemen Omobhude (Ose) in his car. Garza then heard a sound “like

fireworks” and saw Appellant chasing the car, gun in hand, as Ose drove away.

While working at a Buffalo Wild Wings, Alexis Blanton recalled a man, later

determined to be Ose, rushing into the restaurant in a “frantic” state and “looking

for help.” Ose collapsed and became “unresponsive.” First responders took Ose

to a hospital where he was pronounced dead. The medical examiner revealed that

Ose had been shot in the right side of his face and the back of his right shoulder and

likely died within a matter of minutes.

Appellant and Egbe testified in Appellant’s defense. According to Appellant,

he and Egbe planned to eat at the sushi restaurant and then go to a nearby shooting

range, but it became apparent that the two would not have had enough time to get

Due to our disposition of the portion of Appellant’s first ground that addresses harm from the

inclusion of the presumption of reasonableness in the jury charge, we do not reach other issues

contained in his first ground, nor do we reach his second ground for review.

CUEVAS — 4

to the shooting range before it closed had they eaten before. Appellant testified that

he planned to sell marijuana to Ose, so he set up a drug buy, texted Ose the time,

place, and price for the drug deal, brought a handgun, and gave another handgun to

Egbe to Egbe’s surprise. When the two arrived at the parking lot, Appellant told

Egbe to wait by the motorcycles while he walked to Ose’s car. Appellant sat in the

car on the passenger side with his backpack of marijuana. According to both

Appellant and Egbe, Ose pressed a gun to Appellant’s head, choked him, took his

phone and marijuana, and then told him to “[g]et the fuck out.” Once he stepped

out of the car, Appellant looked back at Ose, who still had his gun trained on him.

Ose asked, “Do you have any bread?” Appellant said that he did not have money,

to which Ose said, “Stop playing with me. I will smoke you,” as he cocked his

handgun.

According to Appellant, immediately after Ose cocked his gun, Appellant

shut the door, retrieved the handgun he had tucked into his waistband, and shot

seven times into the car. Ose drove away, initially heading toward Egbe and the

motorcycles. Egbe testified that he reached into his backpack to draw his weapon

when he saw Ose put a hand on Appellant’s neck. He was still looking for his gun

when he heard gunshots but did not know who was shooting. When he looked up,

CUEVAS — 5

the car was heading toward him, so he shot at the car.

Investigator Patrick Douglas, for the Fort Bend County Sheriff’s Office,

testified to a security camera video that recorded a scene after the shooting where it

shows Appellant and Egbe putting their motorcycles into a garage. Investigator

Douglas noted that it appeared as though Appellant and Egbe either high-fived or

fist-bumped each other.

Jesse Richey testified that he was at a friend’s house two weeks before the

shooting and met Ose. According to Richey, Ose told him, “He wanted to rob

somebody named Victor. And whenever I tried telling him that it wasn’t a good

idea, that he should not do that, he said that he did not care and that Victor was an

easy lick for him.”

B. The Trial

The State’s theory at trial was that this was a drug deal that “went south”

and that Appellant intended to shoot and kill Ose. Appellant relied on a theory of

self-defense, that Ose robbed Appellant and threatened him with gun violence. The

jury charge instructed the jury on murder, self-defense, and the law of parties. The

jury found Appellant guilty of murder. The main issue in this case is whether the

erroneous inclusion of a presumption on self-defense harmed Appellant. This issue

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manifested itself throughout the trial, beginning in voir dire.

1. Voir Dire

An issue throughout the trial was whether the prosecutor misstated the law

on self-defense. While addressing the venire about the presumptions of

reasonableness of self-defense, the prosecutor made the following explanation:

[PROSECUTOR]: Okay. So you have that. And you

didn’t start. Okay? So somebody’s breaking into your

house with deadly force, you’re reasonable to use deadly

force against them because you didn’t start the – you

didn’t start the action, right? And you were not engaged in

criminal activity. So all three of those things have to

occur. For example –

[DEFENSE COUNSEL]: Objection, Judge, that’s an

improper statement of the law.

[PROSECUTOR]: It’s under 9.32, exactly out of the

Code, Judge.

[DEFENSE COUNSEL]: Only to get a presumption,

Judge. She’s saying it’s a proposition of law that you

can’t use deadly force unless all these things occur. And

that’s flat wrong. That’s only if you want the

presumption that it’s reasonable.2

The trial judge had the prosecutor repeat the question, and she said, “What

I’m trying to explain to the jury, Judge, are situations where deadly force is

2

Emphasis added.

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reasonable under the law.” Defense counsel again said that this is incorrect, and

the judge overruled the objections. Just after this exchange, the prosecutor quizzed

the venire on self-defense by using an example of a thief claiming self-defense.

During this hypothetical, the prosecutor said, “Yes. He’s stealing, which is a crime

right, right? So he can’t use deadly force there either, can he?” Defense counsel

objected again, stating that the State is trying to mislead the jury. This objection

was also overruled.

To illustrate its explanation of self-defense, the State also showed the venire

a slide show.3 One slide was titled, “Deadly Force is Reasonable IF:” That slide

ends by telling the venire that deadly force is reasonable if the defendant, “Was

NOT engaged in criminal activity.” The next slide was titled, “Use of Force

NOT justified...” The last bullet-point under this heading said: “If you are

committing a crime.” Defense counsel also objected to these slides and was

overruled again.

2. Opening Statement

The next time this issue arose was in the Defense’s opening statement. The

State waived its opening. In the first full page of his opening, defense counsel said,

3

See infra at Appendix A.

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“And unlike what you heard in voir dire about self-defense not being available, if

someone is committing a crime, self-defense is available if someone is committing a

crime.” The State objected “as to improper opening and also a misstatement of the

law.” This objection was sustained.

3. Charge Conference

During the charge conference, defense counsel argued that the jury charge

should not include any presumption language because it was not at issue. Defense

counsel told the trial judge:

Judge, the rest of 9.32 has to do with the presumption,

which is not applicable to this case. And it’s an improper

comment on the weight of the evidence. So it’s not

applicable.

...

Presumption is not an issue here. It’s not proper to

include it, Judge.

The prosecutor responded that the jury charge should include the “whole

law” but conceded that “the defendant admitted on the stand that he was

participating in delivery of marijuana.” The defense attorney continued:

We’re not asking for the presumption, Judge. It’s not

applicable. And all it does is it gives the prosecutor a

chance – you know, this is a -- this is a sore subject,

Judge. Because this prosecutor voir dired on the wrong

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law. I objected many times. You let her do it. You let her

voir dire on the wrong law and let the jury –

The judge interrupted and told defense counsel not to “get into personal

attacks.” Defense counsel disagreed that he was engaging in a personal attack and

emphasized the importance of the issue, saying, “The importance begins in voir

dire when the jury was told and allowed to be told the wrong law. It’s not

applicable.” The judge responded, “That’s your opinion . . . And you can disagree

with my ruling and you made that quite clear.”

Later, defense counsel explained his concern:

And I know, no doubt, what she’s going to try to do,

she’s going to try to mislead the jury again and go back

and say: Oh, look at this section here. He was committing

a crime, therefore he doesn’t get self-defense. And I’ve

got to go through and say – go through this whole thing

again that’s already been bandied around when it does

not apply, Judge.

...

Judge, we have stipulated and it’s uncontroverted that he

was involved in criminal activity with the possession of

marijuana, other than a Class C misdemeanor, which

would make him unavailable to have the presumption of

reasonableness.

...

And so all it does is to confuse the jury and it goes back to

what the prosecutor has been doing all along is trying to

CUEVAS — 10

confuse the jury on the law and the facts. It’s not

applicable, period.

...

This presumption has nothing to do with it. All it does is

mislead them and confuse them because it’s not

applicable. And not being applicable, they’re going to get

confused and the prosecutor’s going to get up and do just

what she did in voir dire and say: Oh, he’s committing –

he’s committing a crime so he doesn’t get to use it, find

him guilty.

...

And she’s already used it in a bad way and she’ll

continue to use it again.

4. Jury Charge

The abstract portion of the jury charge stated the following:

The defendant’s belief that the deadly force was

immediately necessary is presumed to be reasonable if the

defendant knew or had reason to believe that the person

against whom the deadly force was used: unlawfully and

with force entered, or was attempting to enter unlawfully

and with force, the actor’s occupied habitation, vehicle,

or place of business or employment; unlawfully and with

force removed, or was attempting to remove unlawfully

and with force, the defendant from the defendant’s

habitation, vehicle, or place of business or employment;

or was committing or attempting to commit aggravated

kidnapping, murder, sexual assault, aggravated sexual

assault, robbery, or aggravated robbery; and the

defendant did not provoke the person against whom the

force was used; and the defendant was not otherwise engaged

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in criminal activity, other than a Class C misdemeanor

that is a violation of a law or ordinance regulating traffic

at the time the force was used.4

The presumption of reasonableness did not have a dedicated instruction in

the application section of the charge, but a variation of the words “reasonable

belief,”5 to which the presumption relates, was contained in the self-defense

application paragraph:

Therefore, if you find from the evidence beyond a

reasonable doubt that the defendant, Victor Cuevas, did

shoot Oseikhuemen Omobhude with a deadly weapon,

namely a firearm, as alleged, but you further find from

the evidence, as viewed from the standpoint of the

defendant at the time, that from the words or conduct, or

both of Oseikhuemen Omobhude it reasonably appeared

to the defendant that his life or person was in danger and

there was created in his mind a reasonable expectation or

fear of death or serious bodily injury from the use of

unlawful deadly force at the hands of Oseikhuemen

Omobhude, and that acting under such apprehension and

reasonably believing that the use of deadly force on his part

was immediately necessary to protect himself against

Oseikhuemen Omobhude's use or attempted use of

unlawful deadly force, he shot Oseikhuemen Omobhude,

then you should acquit the defendant on the grounds of

self-defense; or if you have a reasonable doubt as to

whether or not the defendant was acting in self-defense

4

Emphasis added.

5

See TEX. PENAL CODE § 1.07(b) (“The definition of a term in this code applies to each

grammatical variation of the term.”).

CUEVAS — 12

on said occasion and under the circumstances, then you

should give the defendant the benefit of that doubt and

say by your verdict, not guilty.6

5. Closing Arguments

In closing arguments, defense counsel discussed the presumption language

in the jury charge:

But you-all did take that oath to tell the truth and a true

verdict. And unlike what the prosecution told you back in

voir dire that if you’re committing a crime, you can’t use

self-defense. And y’all remember back then I was

bouncing out of my chair like a Jack-in-the-box

screaming, saying that’s not the law.

Guess what? I told you right. It’s not the law. It does

factor into a presumption, an assumption if you will. An

instance in some situations in which you can sort of start

in a different place other than the race line where

everybody’s at the same place.

Later in his closing, defense counsel explained the presumption further:

We talked about—back in voir dire, [a]bout the Castle

Doctrine and how it gives you a presumption, if certain

things are applicable. They’re not applicable in this case,

but because it’s here we’re going to talk about it. You can

get a presumption of reasonable, otherwise your actions

in shooting are presumed to be reasonable, which is like a

head start. Okay?

6

Emphasis added.

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It’s not starting on the same line, it’s an assumption. You

can assume that the deadly force is okay if certain things

happen. And those certain things are—and the list is all

there—basically you’ll see them in the list and y’all can

go back and read them. Is if [sic] like you’re in your home

or your car or something like that, not doing anything

illegal, someone tries to come in on you, you can shoot

them died [sic]. And the cops come out and go: Is that

what happened? Yep. Okay. We’re going to presume it’s

good.

And instructions to the jury will be the same thing. We’re

going to assume that there’s no problem, everything is

fine. That’s a presumption. That’s what this is explaining

to you here, how a presumption works. I’m telling you it

doesn’t apply because [Appellant] was selling dope.

And this is no different, ladies and gentleman, in life and

someone sitting in their car at a red light with their wife

and had a few too many beers, someone pulls up and

yanks her out of the car, dragging her to another car.

Does it make sense that the law would say you’re

committing a crime of having too much beer and you

can’t use your gun? Of course not.

After the Defense finished its closing arguments, the prosecutor said the

following in her rebuttal argument:

[Defense Counsel] talked about the presumption a little

bit and I don’t want you guys to get confused because it is

kind of a confusing area of the law, because you heard a

lot about that, right? [Appellant] is a victim of aggravated

robbery...

Here’s the problem. He cannot use deadly force to protect

against the imminent commission of aggravated robbery if

he’s also committing another crime. You can’t do it. And we

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know at the very least, right, he’s committing aggravated

assault. Deadly conduct, illegal possession of a firearm,

delivery of marijuana, possession of marijuana, the list

goes on. Right?

So he doesn’t get it. He doesn’t get there. There was no

imminent commission of aggravated robbery because if

taking his story as the truth, means the robbery was over.

I don’t think it’s the truth, but we’ll just give him the

benefit of the doubt. Right?

If it’s over, he doesn’t get self-defense. Well, let’s assume it’s

still going on in some world. He doesn’t get it because he’s

committing other crimes. So it all goes back to: Well, I

don’t think I did it. But if you figure it out and you caught

me and I did it, this is why I did it.

You can’t use that excuse. It doesn’t apply to him.7

At that point, defense counsel objected to the State’s argument. The judge

overruled the objection, and the jury convicted Appellant. At the punishment

stage of trial, the jury found that Appellant acted under the influence of sudden

passion arising from an adequate cause8 and sentenced him to 18 years in prison.

C. The Appeal

Agreeing with Appellant, the court of appeals held “that the presumption of

reasonableness was not applicable and should not have been included in the jury

7

Emphasis added.

8

See TEX. PENAL CODE § 19.02(d).

CUEVAS — 15

charge because it [was] undisputed that he was engaged in criminal

activity—namely, a drug deal—when he shot Ose.”9 The court of appeals then

weighed the Almanza factors: the entire jury charge, the arguments of counsel, the

state of the evidence, and any other relevant information revealed by the record.10

The court of appeals held that the first factor weighed against a finding of

harm because the abstract portion of the jury charge correctly stated the law on the

presumption,11 the application portion of the charge did not refer to it at all, and the

application section is what authorizes conviction.12 The court of appeals also found

that the evidence factor weighed against a finding of harm because there was

“more than sufficient evidence” for the jury to find that Appellant did not act in

self-defense—Appellant arranged the time and place for the drug deal, came

armed, brought an accomplice, and followed Ose as Ose attempted to flee, and an

eyewitness testified that Appellant appeared calm and appeared to high-five or fist-

9

Cuevas v. State, —S.W.3d—, No. 14-22-00561-CR, 2024 Tex. App. LEXIS 2612, 40 (Tex.

App.—Houston [14th Dist.] April 16, 2024).

10

Id. at 41-47; see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g).

11

Cuevas, 2024 Tex. App. LEXIS 2612, at 41.

12

Id. at 42 (citing Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012)).

CUEVAS — 16

bump Egbe after the shooting.13 The court of appeals found that the argument

factor weighed slightly in favor of harm because the State misstated the law on the

presumption of reasonableness but that the harm was ameliorated by Appellant

when he addressed the prosecutor’s misstatements of the law in his closing.14 And

the court of appeals held that the record does not reveal any other information,

such as jury notes indicating it was confused about the charge and did not weigh

this factor.15

In light of the four factors, the court of appeals found that the error in the

jury charge was harmless because defense counsel corrected the prosecutor’s

misstatement of the law, the court instructed the jury to follow the law set out in

the charge, and the charge did not contain a misstatement of the law, so Appellant

identified a purely theoretical harm from the erroneous inclusion of the

presumption instruction.16

13

Id.

14

Id. at 46.

15

Id.

16

Id. at 47. We note that Appellant also complained to the court of appeals about the

State’s voir-dire comments relating to the presumption. Apparently assuming error, the court of

appeals concluded that there was no harm. Id. at 15 (“Even if we were to agree with appellant’s

characterization of the prosecutor’s comments, we apply a harmless error analysis to a

prosecutor’s alleged misstatements of law during voir dire. Here, the record shows that defense

CUEVAS — 17

The dissent in the court of appeals found that the first factor was neutral

because, while the jury charge did not repeat the presumption in the application

paragraph, the presumption language was used throughout the trial to prevent the

use of self-defense.17 The dissent agreed that the arguments-of-counsel factor

weighed in favor of harm but also noted that the State’s argument came on

rebuttal, leaving Appellant no opportunity to refute the State’s argument.18 The

dissent averred that the third factor was neutral at best because there was evidence

to suggest that Appellant’s version of the story was true.19 For the last factor, the

dissent noted that the State’s “misunderstanding of the law started with voir dire,

and continued through opening and closing statements” and was aggravated by the

fact the judge agreed with the State.20

II. ANALYSIS

counsel had the opportunity to examine the venire panel about self-defense and to correct any

misstatement of law, including the reasonable-belief presumption or the criminal-activity caveat,

and the record further shows that defense counsel did precisely that.”) (citations, including

references to TEX. R. APP. P. 44.2(b), omitted). The dissent claims that Appellant did not

complain about the court of appeals’s resolution of the voir-dire issue in his petition, but our

reading of his petition suggests that he did. Nevertheless, we did not grant review of that issue.

17

Id. at 63 (Christopher, C.J., dissenting).

18

Id. at 64.

19

Id. at 64-65.

20

Id.

CUEVAS — 18

A. Self-Defense Statute and Applicable Law

This case revolves around Section 9.32 of the Texas Penal Code.

Appellant’s defensive theory was that he acted in self-defense when faced with

deadly force by Ose during a marijuana deal gone wrong. Section 9.32, which

details when deadly force in defense of persons is justified, states the following:

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under

Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly

force is immediately necessary:

(A) to protect the actor 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 sexual assault,

robbery, or aggravated robbery.21

The presumption involving the use of deadly force has several elements, but

we need only concern ourselves with the last element:

(b) The actor’s belief under Subsection (a)(2) that the deadly force was

immediately necessary as described by that subdivision is presumed to be

reasonable if the actor:

...

21

TEX. PENAL CODE § 9.32(a).

CUEVAS — 19

(3) was not otherwise engaged in criminal activity, other than a Class

C misdemeanor that is a violation of a law or ordinance regulating

traffic at the time the force was used.22

When a rule or statute requires an instruction that is “the law applicable to

the case,” the trial court must instruct the jury accordingly.23 In general, issues that

do not involve the elements of the offense and are not applicable in every case

constitute law applicable to the case only if raised by the evidence.24 In particular,

the issue of the existence of a presumed fact must be submitted to the jury “unless

the court is satisfied that the evidence as a whole clearly precludes a finding beyond

a reasonable doubt of the presumed fact.”25 Thus, when the evidence conclusively

establishes that the defendant was engaged in criminal activity at the time he used

22

TEX. PENAL CODE § 9.32(b)(3).

23

Oursborn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008).

24

Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009) (“But what criteria qualify a

statement of law as being ‘applicable to the case’? Some information, such as the elements of the

charged offense, must appear in the jury charge and is without question ‘the law applicable to the

case.’ But a Section 8.04(a) instruction need not appear in every jury charge, and therefore, there

is no sua sponte duty to instruct the jury on that issue, but the judge may do so, if the question of

voluntary intoxication applies to the case. We have stated that a Section 8.04(a) instruction is

appropriate if there is evidence from any source that might lead a jury to conclude that the

defendant’s intoxication somehow excused his actions...We disagree with the court of appeals’s

conclusion that there was no evidence of intoxication sufficient to raise an issue under Section

8.04(a). We hold that it was not error to include the voluntary intoxication instruction in the jury

charge...”) (citations omitted); Cf. Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001)

(Accomplice as a matter of fact instruction “was erroneous because the issue was not raised by

the evidence.”).

25

TEX. PENAL CODE § 2.05(b)(1).

CUEVAS — 20

deadly force, the presumption of reasonableness is not the law applicable to the

case.26

Because the court of appeals found error, and the State did not file a petition

from that adverse determination, we assume error.27 Since the error in submitting

the presumption was objected to, the record need only show “some harm.”28 In

the context of Almanza, “the presence of any harm, regardless of degree, which

26

Cf. Villareal v. State, 453 S.W.3d 429 (Tex. Crim. App. 2015) (finding presumption

inapplicable based on uncontroverted evidence that the defendant was engaged in the

commission of a crime).

27

The State’s brief seems to suggest fleetingly that the inclusion of the presumption might

have been proper, but it made no clear argument and focused its discussion on harm. In any

event, it failed to bring the issue before us via a petition for discretionary review. See Blasdell v.

State, 470 S.W.3d 59, 62 n.4 (Tex. Crim. App. 2015) (This Court refused to address one of the

State’s claims because “we did not grant review of that issue. Moreover, the State did not

properly raise the...issue in a cross-petition for discretionary review.”) (also citing and quoting

Keith, infra); Keith v. State, 782 S.W.2d 861, 863 n.4 (Tex. Crim. App. 1989) (“[W]here the State

intends to claim an error by the Court of Appeals’ rejection of an argument, that claim should be

presented to this Court in a petition for discretionary review or a cross-petition for discretionary

review.”).

The dissent takes us to task for assuming error. But assuming error after it has been

decided in a lower appellate court—and not complained about in a proper manner—is not the

same thing as assuming error when the issue of error has never been addressed. The dissent

nevertheless urges us to grant review of the issue of error on our own motion. We note, however,

that Appellant’s commission of a crime during the events at issue was never in dispute at trial.

Both parties explicitly told the jury during closing arguments that Appellant was committing a

crime during the shooting. In fact, the prosecutor pointed to several crimes—including the

possession and delivery of marijuana and the illegal possession of a firearm. Given this trial

background, we see no compelling reason to go the extra mile to grant review of an error issue

that has not been properly raised before us.

28

Elizondo v. State, 487 S.W.3d 185, 204 (Tex. Crim. App. 2016).

CUEVAS — 21

results from preserved charging error, is sufficient to require a reversal of the

conviction. Cases involving preserved charging error will be affirmed only if no

harm has occurred.”29 Even “the less exacting standard of ‘some’ harm still

requires that the record reveal ‘actual,’ and not merely ‘theoretical’ harm.”30

In determining whether Appellant suffered “some harm,” we must look to

(1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the

evidence, and (4) any other relevant factors present in the record.31

B. The Almanza Factors

1. Error in Light of the Entire Jury Charge

As we explained earlier, we assume that the presumption was inapplicable

because it was not raised by the evidence. However, the presumption correctly

stated the law, and if it were correctly interpreted, the jury would simply conclude

that the presumption did not apply and proceed to determine whether Appellant

actually, rather than presumptively, acted in self-defense. Ordinarily, we presume

29

Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (emphasis in original).

30

French v. State, 563 S.W.3d 228, 236 (Tex. Crim. App. 2018).

31

See Almanza, 686 S.W.2d at 171.

CUEVAS — 22

that the jury has understood and followed the instructions given.32 And an

inapplicable but legally correct abstract instruction that purports to benefit a

defendant (as the presumption-of-reasonableness instruction did) would generally

not harm a defendant.33 But there is one way to misuse the presumption-of-

reasonableness instruction that could cause serious harm: if the presumption were

conflated with the ability to act in self-defense at all, that misconstruction could be

devastating to a defendant’s self-defense claim. As we shall see in discussing other

factors, the prosecutor in the present case repeatedly advocated this

misconstruction to the jury.

The parties and the court of appeals have suggested that the presumption

was not included in the application paragraph. If that suggestion were a complete

and accurate characterization of the jury charge, that fact would weigh in the

State’s favor because we have said that the application paragraph is the “heart and

soul of the jury charge,”34 and we have suggested that “inclusion of a merely

32

Crenshaw, 378 S.W.3d at 467.

33

Cf. Druery v. State, 225 S.W.3d 491, 497-98 (“Also, if Pitts and Harris are not

accomplices, then the trial judge’s instruction regarding accomplice witnesses as a matter of fact

was superfluous and did not harm Druery. Indeed, such an instruction could only benefit him

because it allowed the jury to require corroboration of the witnesses’ testimony if it believed that

the witnesses were accomplices to Rome’s murder.”).

34

Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012).

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superfluous abstraction, therefore, never produces reversible error in the court’s

charge because it has no effect on the jury’s ability fairly and accurately to

implement the commands of the application paragraph or paragraphs.”35 However,

the application paragraph’s phrase “reasonably believing” effectively incorporated

the abstract presumption by reference.36 The abstract instruction on the

presumption was essentially a partial explanation on how to determine whether

Appellant’s belief was reasonable and was thus logically linked to the application

paragraph. Consequently, the absence of a dedicated application paragraph for the

presumption does not significantly cut against a finding of harm. The entirety-of-

the-charge factor weighs, at most, slightly in favor of the State.

2. Other Relevant Factors Present in the Record

We discuss this factor next because it involves some proceedings earlier in

the trial in which the State previewed its inaccurate position on the law. In voir dire,

the State used examples and included veniremembers in hypotheticals to explain

that Appellant was not legally entitled to self-defense. The State’s misstatements

35

Plata v. State, 926 S.W.2d 300, 302-03 (Tex. Crim. App. 1996), overruled on other

grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).

36

See Vasquez, 389 S.W.3d at 367-68 (discussing that holding in Marvis v. State, 36 S.W.3d

878 (Tex. Crim. App. 2001) that the words “acting together” were sufficient, at least absent

objection, to incorporate an abstract definition on the law of parties).

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of the law were further exacerbated by the slide show it displayed to the jury.

Before ever reading the jury charge, the state primed the jury, repeatedly, that a

defendant may not claim self-defense if he was also engaged in the commission of a

crime. The court of appeals claimed that defense counsel had the opportunity to

correct any misstatement of law and that defense counsel did exactly that. This

overlooks the fact that, when the defense did attempt to correct misstatements of

law, the judge either overruled the defense’s objections or sustained the State’s

objections.

In his opening statement, defense counsel attempted to ameliorate the harm

that the State’s explanation of self-defense during voir dire caused. Near the

beginning of defense counsel’s opening statement, counsel said the following:

“And unlike what you heard in voir dire about self-defense not being available, if

someone is committing a crime, self-defense is available if someone is committing a

crime.” The State objected “as to improper opening and also a misstatement of the

law”37 which the judge sustained.

37

While defense counsel’s opening statement may have included an improper argument

about the law, it was done to correct the misstatements of law by both the prosecutor and the

judge. This could have been an opportunity for the judge to mitigate any harm caused in voir dire.

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The judge repeatedly overruled defense objections to the State’s

misstatements of the law and sustained the State’s objections to defense counsel

when the defense would attempt to correct misstatements of the law. In doing so,

the trial court consistently put the stamp of judicial approval on the State’s

misstatements of law.38 Every defense objection was a missed opportunity for the

trial judge to clear up the law on self-defense and the fact that the State was

conflating the presumption with the rule on self-defense.

In addition, in the punishment phase of trial, the jury made a finding of

sudden passion. This finding suggests that the jury believed Appellant’s story

because that story was the only basis for a sudden-passion finding. Indeed, in

punishment closing arguments, both Appellant and the State told the jury that it

would have to believe Appellant’s version of events to make the finding. Defense

counsel told the jury that Appellant’s reaction to hearing Ose cock his gun, “that

immediacy of it, that’s sudden passion.” The State explained, “What he’s really

saying is: Hey, Jury, I know you didn’t buy my self-defense but maybe if I call it

sudden passion, you’ll buy that right? Y’all are very intelligent.” The jury’s

finding of sudden passion combined with its rejection of self-defense suggests that

38

See Burke v. State, 652 S.W.2d 788, 790 (Tex. Crim. App. 1983).

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it believed Appellant’s story but also believed the State’s interpretation of the

presumption issue and therefore thought its hands to be tied on the issue of self-

defense. The other-relevant-information factor weighs heavily in favor of harm to

Appellant.

3. The Entirety of the Evidence

The court of appeals held that this factor also weighed against a finding of

harm because the evidence of Appellant’s guilt was overwhelming. However, as

the dissent in the court of appeals explained, the evidence was not as lopsided as

the majority suggested. The testimony of Appellant and Egbe, if believed, would

entitle Appellant to a self-defense finding. And other evidence provided at least

some support for that testimony. The drug sale—that Appellant organized—took

place in public with witnesses all around as evidenced by those who testified at

trial. Appellant and Ose were in a public parking lot, in front of a restaurant. If

Appellant went to this drug-buy intending to inflict violence, why would he pick

this area? Also, Appellant left his cell-phone and the marijuana he intended to sell

in Ose’s vehicle—suggesting that his original intent was to sell the marijuana and

that the altercation was a surprise. And, Richey testified that Ose planned to rob

someone with the same first name as Appellant. Richey’s testimony also

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contradicted the court of appeals’ assertion that the only evidence suggesting self-

defense came from Appellant and his cohort. The fact that Appellant brought a

firearm to a drug deal was not conclusive evidence that he intended to start a

firefight; drug dealing is a dangerous activity and bringing a firearm for protection

is an unfortunate reality of that activity.39 We hold that this factor weighs at least

moderately in favor of harm.

4. Arguments of Counsel

As laid out fully above, the State doubled down on the seed it planted in voir

dire when the prosecutor argued in rebuttal, “[Appellant] cannot use deadly force

to protect against the imminent commission of aggravated robbery if he’s also

committing another crime.” Soon after this, the prosecutor doubled down again:

He doesn’t get it because he’s committing other crimes.

So it all goes back to: Well, I don’t think I did it. But if

you figure it out and you caught me and I did it, this is

why I did it.

You can’t use that excuse. It doesn’t apply to him.

39

Plummer v. State, 410 S.W.3d 855, 859 (Tex. Crim. App. 2013) (“The nature of the illegal

drug trade invites the possibility of violence and encourages drug dealers to carry deadly weapons

to protect themselves and their inventory.”); United States v. Wiener, 534 F.2d 15, 18 (2nd Cir. 1976)

(discussing that drug dealers keep firearms “as tools of the trade almost to the same extent as they

keep scales, glassine bags, cutting equipment, and other narcotics equipment”).

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This last argument punctuated the State’s practice at essentially every point

in the trial. When defense counsel objected at this point, the judge again overruled

Appellant’s last attempt to correct the State’s misstatements of law.40

The court of appeals found that the harm of the State’s argument was

ameliorated by defense counsel when he attempted to cure the State’s

misstatement of the law. But the prosecution’s remarks about the presumption

came on rebuttal—the last words the jury would hear and to which the defense

could not respond. And the trial judge, as in every prior instance when the issue

arose, ruled in favor of the State.

Though the jury charge correctly recited the presumption language, the

prosecutor misused this portion of the charge in precisely the way to which it was

susceptible by conflating it in a way that stripped it of its meaning. The only thing

that might prevent this factor from weighing heavily in favor of harm is the fact that

the defense’s objection was a little late. However, the trial judge had been

consistently overruling these types of objections, and this objection was made early

enough for the judge to issue a curative instruction. We hold that this factor weighs

at least moderately in favor of harm.

40

See Burke, 652 S.W.2d at 790.

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5. Weighing the Factors

After weighing all of the Almanza factors, one factor weighs heavily in favor

of harm, two factors weigh at least moderately in favor of harm, and one factor

weighs slightly against a finding of harm. These factors showed the State

previewing how it will misuse the presumption in voir dire and opening statements

and then actually misusing the presumption in its closing argument on rebuttal.

While the irrelevant instruction did not incorrectly recite the abstract law relating

to the presumption, the State consistently told the jury that the instruction meant

that Appellant had no defense. As a result, Appellant was virtually stripped of his

defensive theory. We conclude that he suffered at least “some harm.”41

This Court addressed a similar issue in Reeves v. State, where a jury charge

erroneously included an instruction on provocation even though it did not apply to

the facts of the case.42 The State used a provocation instruction to claim that

“[Reeves] is not justified in claiming self-defense,” which was contrary to the

law.43 Much like Appellant’s case, the State used an irrelevant instruction to

41

Elizondo, 487 S.W.3d at 204.

42

Reeves v. State, 420 S.W.3d 812, 820 (Tex. Crim. App. 2013).

43

Id.

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highlight the arguments it made to the jury.44 The only differences between these

two cases are (1) a provocation instruction could only harm a defendant’s case

whereas a presumption of reasonableness instruction would generally tend to

benefit a defendant, and (2) the provocation instruction in Reeves also appeared in

the application section of the charge. However, as in Reeves, the State in this case

weaponized the instruction at issue to improperly limit the right to self-defense.45

This Court noted in Reeves that: “(1) the State misspoke about the law of

provocation and then told the jury to pay careful attention to the erroneous

instruction, and (2) the evidence concerning self-defense was hotly contested and

[A]ppellant’s version of events was, at a minimum, plausible, and, if believed,

exonerating.”46 Those two types of factors were also present here. In this case, the

State and the trial judge continuously impressed misstatements of the law on the

jury, and “the evidence of guilt was not so overwhelming that the erroneous...

44

Id. (discussing the fact the prosecutor called the jury’s attention to the erroneous

instruction in the charge which “emphasized the improper instruction and brought it to the

forefront of the juror’s minds”)

45

Cf. Rodgers v. State, 550 S.W.3d 190 (Tex. Crim. App. 2018) (An error in the jury charge

was aggravated by the State’s misstatements of the law.).

46

Reeves, 420 S.W.3d at 821.

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instruction was harmless.”47 In addition, the jury’s finding of sudden passion

further buttresses these factors weighing in favor of harm.

III. CONCLUSION

Because we hold that Appellant suffered at least some harm from the

inclusion of the presumption instruction, we reverse the judgment of the court of

appeals and remand the case for a new trial.

Delivered: April 2, 2026

Publish

47

See Id. at 820.

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Appendix A

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