# Adam Ray Brown v. the State of Texas > Texas Court of Appeals, 3rd District (Austin) · September 4, 2026 URL: https://www.frixlaw.com/law-library/cases/11436527 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** September 4, 2026 - **Precedential status:** Published - **Opinion:** Opinion of the court - **Nature of suit:** Murder - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11436527 ## Opinion text TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-25-00294-CR Adam Ray Brown, Appellant v. The State of Texas, Appellee FROM THE 460TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-24-202066, THE HONORABLE SELENA ALVARENGA, JUDGE PRESIDING MEMORANDUM OPINION Adam Ray Brown was convicted of the felony offense of murder and sentenced to eight years’ imprisonment. See Tex. Penal Code §§ 12.32-.33, 19.01-.02. In six issues on appeal, he contends that his due process rights were violated by the admission of false evidence, that there was reversible error in the jury charge, that the prosecutor’s closing argument violated his right to a fair trial, and that the trial court erred by failing to hold a hearing on his motion for new trial and by failing to consider evidence submitted in support of the motion for new trial. Because we agree that there was reversible error in the jury charge, we will reverse the trial court’s judgment of conviction and remand for further proceedings. BACKGROUND This appeal concerns a tragic series of events that occurred on the evening of March 23, 2024, forever changing the lives of Brown, Isabel Donovan, Jose Salinas, Esmeralda Morales, and Christopher Rodriguez. In the years leading up to the incident at issue, Brown and Donovan met in high school, became romantically involved, went to the same college in Missouri, and decided to move to Austin in 2022 after graduating. When the couple told their families about their plan to move, Brown’s stepfather expressed concern about the amount of crime in Austin and offered to sell Brown for protection a handgun that Brown had previously shot a few times for target practice. Brown accepted the offer and bought a gun safe. Brown and Donovan found an apartment online on the east side of Austin, and they signed a lease for a first-floor apartment. Brown kept the gun locked in the safe in the couple’s bedroom. After moving to Austin, Brown and Donovan adopted from an animal shelter a dog that they named Tito. They later found an abandoned dog scrounging for food in a dumpster in their apartment complex, rescued the dog, and named her Honey. As part of their daily routine, the couple would walk their dogs multiple times throughout the day and would take their dogs to the dog park at the complex so that the dogs could play and exercise. Brown got a job with the gym chain L.A. Fitness and worked at two of the chain’s Austin locations. As part of his employment, Brown would interact with the homeless individuals who entered the gyms and provide them with whatever aid he could. Although some of the individuals could become agitated while experiencing mental-health issues, Brown was always able to deescalate the situations without incident. In addition to his L.A. Fitness job, he volunteered as a hockey coach for a youth league in Austin. Although they did not know Brown and Donovan, Salinas and Morales lived in the same building on the second floor in the unit that was one to the right of Brown and Donovan’s. Salinas and Morales had been friends for some time and decided to live together 2 before moving into the complex. While living there, they witnessed many crimes and reported them to the police. Rodriguez was a tattoo artist who lived with his mother near San Antonio for some time. Because he had previously spent a lot of time in Austin, he felt more at home there and decided to move there in 2018. Although he spoke with his mother on the phone once or twice a month, he did not see her again after moving out of her home. At some point while he was in Austin, he became homeless. A few months before the night in question, he began living in an encampment on the other side of the street from the complex where Brown, Donovan, Salinas, and Morales were living. Salinas had previously seen Rodriguez walking on the apartment complex’s property and observed Rodriguez yelling at one of the tenants. On March 23, 2024, Brown and Donovan had a rare day when they were both off from work and could spend time together. They took their dogs for several walks that day and decided to take them to the dog park one more time before turning in for the night. After letting their dogs run around for about ten minutes, the couple put the leashes back on their dogs and began walking to their apartment using the sidewalks and stairs located within the complex that connected the buildings to one another and to the amenities. Rodriguez was also walking around the complex that night, and his path would intersect with the sidewalk that the couple was walking on. Either in response to a sound that Rodriguez made or in response to seeing Rodriguez, Tito barked at him. Brown apologized to Rodriguez, but Rodriguez began yelling at the couple about their dogs. Rodriguez turned around and headed to the encampment, and the couple continued on their path to their apartment. Around this time, Salinas and Morales were socializing in their apartment, and Salinas decided to leave the apartment to get some dinner. After opening the door to his 3 apartment, he heard yelling and leaned out over the railing to see what was happening. He saw Rodriguez yelling by the building. Salinas decided to head back inside because he did not want to be near the yelling and told Morales what was happening. He monitored the incident from the sliding glass door to his balcony and saw Rodriguez leaving the complex and heading to the encampment. Believing that the event was over, Salinas decided to leave his apartment and pick up dinner. At that moment, Rodriguez left the encampment and headed toward Brown and Donovan’s apartment. Rodriguez was holding a large branch in one hand and a log in the other. Brown and Donovan went inside their apartment. Once inside, Donovan looked outside through the sliding glass door to her bedroom and saw Rodriguez crossing the street and heading toward their apartment. After returning to the apartment, Brown unlocked the gun safe and retrieved the gun that he had purchased from his stepfather. Brown opened the door and saw Rodriguez heading toward their apartment while carrying the branch and the log. Brown stepped out onto the front porch of his apartment then onto the sidewalk. Rodriguez finished crossing the street, walked onto the yard area in front of Brown’s apartment, threatened Brown, and threw the branch at Brown before throwing the log at Brown. After observing Rodriguez heading back to the complex, Salinas went back inside his apartment again and told Morales that Rodriguez had returned. Morales and Salinas watched the events from the glass sliding door to their balcony. Salinas decided to call 911, and Morales continued to watch through the door. She was able to see Rodriguez but could not see Brown or Donovan. In his 911 call, Salinas informed the dispatcher that there was a homeless man carrying a large stick “like over six feet at least” trying to fight Brown. Salinas reported that 4 Rodriguez got close to the door of Brown and Donovan’s apartment. Further, Salinas said that Rodriguez was threatening Brown, that Brown told Rodriguez to leave them alone, and that Salinas heard banging sounds. Shortly thereafter, Salinas heard a gunshot and told the dispatcher that a gun had just gone off. Police officers arrived quickly while Salinas was on the phone, and Salinas told the dispatcher that Brown acted in “self-defense” and “wasn’t actively looking to shoot the guy.” Shortly after Salinas called 911, Donovan also called 911 using the speakerphone function on her cell phone. On the call, she explained that Rodriguez was attacking her and Brown and threatening them with a branch. Further, she related that Brown shot Rodriguez after Rodriguez ran at Brown but that she did not see the shooting. She reported that Rodriguez was facedown on the ground but was still breathing. Brown entered the apartment and told the dispatcher what type of gun he owned and told the dispatcher that he had placed the gun back in the safe. When the police responded, Donovan and Brown were outside, and Brown directed the police to their location and then to Rodriguez. Brown told the responding officers that Rodriguez “was throwing shit at me” and “tried to attack me.” The responding police officers, firefighters, and paramedics moved Rodriguez’s body from the yard to a sidewalk and attempted to perform life-saving procedures on Rodriguez, but he succumbed to the injuries caused by the gunshot. As part of the investigation, the police determined that Rodriguez fell to the ground approximately thirty feet from the front door to Brown and Donovan’s apartment. The police questioned Donovan, Salinas, and Morales at the apartment complex shortly after responding to the 911 call. The police took Brown to the police station and interviewed him hours later. 5 In her recorded statement, Donovan explained that one of her dogs reacted to Rodriguez as she and Brown were walking to their apartment. Further, she stated that Rodriguez responded by threatening to hurt them. Rodriguez told them that he was going to leave but was going to return to kill their dog. She discussed watching Rodriguez cross the street and disappear into the encampment before she and Brown decided to head back to their apartment. After they went inside, she went to retrieve the gun but noticed that Brown had already taken it. Brown stepped outside onto the sidewalk, and she saw Rodriguez returning with a stick, so she went to retrieve a bat from inside the apartment. When she went back outside, Rodriguez had “advanced” on Brown. She motioned to the officer to show that Rodriguez was holding the branch above his head. Rodriguez again stated that he would kill their dog and continued to yell at them, and Brown told Rodriguez to leave the area. When she went back inside again, Brown and Rodriguez were stationary, and Rodriguez had not yet thrown anything. The gunshot occurred while she was inside. When she went back outside after the gunshot, she noticed that the branch had been thrown and had broken apart. She related that she had never felt more endangered and threatened while living in Austin than she did that night and that she wanted to get the gun to show Rodriguez they had something stronger than the weapon he was using. Salinas explained in his recorded statement that he saw Rodriguez yelling at Brown who was walking his two dogs and heard Brown tell Rodriguez to leave them alone. Further, Salinas explained that Rodriguez was instigating the situation. Salinas saw Rodriguez leaving the area and walking across the street but then saw Rodriguez heading back to the property while holding a stick to threaten Brown and Donovan. More specifically, Salinas said that Rodriguez came back from across the street “to attack them” and that he marched at the couple “to assault them.” Additionally, Salinas recalled that Rodriguez said, “[W]here the fuck 6 is the dog? Come at me. Bring out the fucking dog.” Salinas went inside his apartment and called the police, and he heard the gunshot while he was on the phone. Although Salinas could not see Rodriguez at the time of the shooting, he heard Brown tell Rodriguez to leave them alone and go away. Salinas described Rodriguez’s behavior as threatening, and Salinas said that he was scared. In her recorded statement, Morales related that she heard Rodriguez arguing with Brown and Donovan who had their dogs with them. Morales said that the three were “cussing” at each other and that Rodriguez said something about the couple’s “fucking dogs.” Morales looked out from the glass sliding door to her balcony and saw Rodriguez leaving the complex but returning quickly with a branch. Rodriguez started gesturing and yelling at Brown and Donovan. Although she could not see the speaker, Morales heard someone say, “We have a gun.” At that point, Rodriguez said “Shoot me. Shoot me.” Morales heard the gunshot and saw Rodriguez fall to the ground. In his interview at the police station, Brown said that when he and Donovan were walking back to their apartment, he noticed Rodriguez ahead of them and heard Rodriguez make an unusual sound. The dogs reacted to the sound by barking at Rodriguez. After the dogs barked, Rodriguez began yelling at Brown and Donovan, and Brown apologized to Rodriguez. Rodriguez continued to yell at them and then stated that he was going to get his knife and kill Brown and his dogs. Donovan told Rodriguez to leave, and Rodriguez left the area. The couple continued their walk to the apartment. When they reached the door to their apartment, he noticed Rodriguez jumping over a wall across the street, holding a branch, and heading toward them. Brown went inside the apartment, retrieved his gun, and told Donovan to call 911. Brown went outside, and Rodriguez exclaimed that he now had his knife and threatened to kill Brown and 7 Donovan while continuing to head to the apartment. Brown told Rodriguez to leave but did not display his gun at the time. Rodriguez came forward and threw the branch at Brown. Brown told Rodriguez to leave again and showed Rodriguez that he had a gun. Rodriguez then threw the log after moving to within fifteen feet of Brown. After throwing the log, Rodriguez bent down seemingly to retrieve something and then sprinted at Brown. At that point, Brown fired the gun when Rodriguez had gotten even closer to him. Although Brown agreed that closing the door could have been the right thing to do, he said he went outside to see if Rodriguez was actively approaching the apartment and, if he was, to tell him to leave. Further, Brown explained that the whole incident took place over a short period of time. When the police told Brown that one of his neighbors did not mention seeing Rodriguez run, Brown explained that he did not want to shoot Rodriguez, had not shot Rodriguez before Rodriguez charged at him, and would not have shot Rodriguez if Rodriguez had not run at him. Brown stated that he acted purely in self-defense. The police arrested Brown, and he was charged with murder. During the trial, the State called the following witnesses: police officers who responded to the 911 calls, a paramedic who performed CPR and other medical interventions on Rodriguez, two crime scene specialists, the detectives assigned to the case, the medical examiner who performed the autopsy, Rodriguez’s mother, Salinas, Morales, and Donovan. In his case-in-chief, Brown elected to testify and called as witnesses his mother, his grandfather, his father, a friend from Missouri, two private investigators, one of his coworkers from L.A. Fitness, and Salinas. The witnesses testified about the events summarized above and provided additional details that will be set out below. The trial court admitted into evidence multiple exhibits, including body camera footage from the officers responding to the 911 call; recordings of Salinas’s 911 call, Donovan’s 911 8 call, Salinas’s statement, Donovan’s statement, Morales’s statement, and Brown’s interview at the police station; a copy of the autopsy report; and photos of the scene, the branch, the log, the views from the two apartments, damage to the wall by Brown’s apartment, the gun, the safe, the autopsy, Rodriguez, Brown, Brown’s family, and the campsite where Rodriguez had been living. Two of the responding officers testified that criminal mischief is the destruction of another’s property. One of those officers further explained that an individual can resort to force to prevent damage being done to property and that there was an indication that Rodriguez ran at Brown before Brown fired. When called as a witness, Salinas explained that the apartment complex was not a gated community and that the sidewalks could be used by tenants and members of the public, but he explained that the complex was private property. Salinas also provided testimony consistent with what he said on the 911 call and his recorded statement, including that he heard Brown ask Rodriguez to leave during the initial and subsequent encounter. Salinas also testified that he had seen Rodriguez in the area before and that Rodriguez’s behavior made him concerned that Rodriguez might commit a crime like breaking into an apartment. Further, Salinas explained that he thought Rodriguez might break into Brown’s apartment to hurt the dogs and might break the window to Brown’s apartment with the branch. Salinas described Rodriguez as “loud,” “angry, [and] pissed”; in contrast, Salinas said Brown never threatened Rodriguez during either encounter. Additionally, Salinas related that he was scared by what Rodriguez had been doing, that he believed Brown and Donovan must have been as well, and that he called the police because of Rodriguez’s actions and because he was scared for Brown and Donovan. Moreover, although Salinas agreed that he did not see the actual shooting or know how the initial encounter started, he explained that Rodriguez returned to the property “like he was on a mission,” that 9 Rodriguez threatened to kill Brown’s dog, that Rodriguez had a stick that was nearly body length, that Rodriguez kept instigating, that Brown did not go after Rodriguez, that Brown tried to get Rodriguez to leave, and that Brown was acting in self-defense and was trying to protect himself and Donovan. When discussing his observations, Salinas testified that Brown would not have had time to call the police if he had gone inside and if Rodriguez had broken into the apartment, that Rodriguez was near the entrance to Brown’s apartment, and that he would have shot Rodriguez too if placed in that same situation. Morales also testified that the apartment complex was not gated. When discussing the incidents in question, she explained that she did not hear the initial encounter but did hear multiple voices yelling and cursing when Rodiguez returned to the property carrying a big branch. She went to the sliding door to her balcony to see what was happening while Salinas called 911. She admitted that she looked away while Rodriguez was walking back to the complex and that when she looked outside again, she noticed that Rodriguez was in the grassy area in front of Brown’s apartment and that the branch was no longer in Rodriguez’s hand. Morales perceived Rodriguez’s actions as threatening, which is why she asked Salinas to call 911. While describing Rodriguez, she stated that he looked angry, was possibly looking for a fight, and came across the street to hurt Brown and Donovan. On the other hand, she said that neither Brown nor Donovan followed Rodriguez or tried to cause him any trouble. When discussing the events leading up to the shooting, Morales testified that she could not understand the words anyone used outside her apartment but thought she heard Brown say the word gun. Morales explained that she did not see anything in Rodriguez’s hands at the time, that she did not see him squat down to pick something up, that he was gesturing with his hands, that he was not doing anything threatening at the time of the shooting, and that she did not 10 see him running at Brown before the gun went off. However, she later admitted that she told the police that it was possible that Rodriguez charged Brown. In her testimony, Donovan explained that at the first interaction Tito was not being aggressive, that Tito only barked a couple of times, that the dogs were both on leashes, and that she did not say anything during this encounter. She said that Brown was soothing Tito and apologized to Rodriguez but that Rodriguez threatened to kill Tito before leaving the area. As Rodriguez walked across the street, he yelled that he was going to come back “and kill you.” In response to that threat, Donovan told Rodriguez to leave. Donovan explained that she and Brown went to their apartment. Upon arriving, Brown went back outside to make sure Rodriguez was not coming to their apartment. She looked outside her bedroom glass sliding door and saw that Rodriguez was heading to the apartment and had made it to the area in front of the apartment. Rodriguez moved closer to Brown than he had been during the last encounter and was standing in the grass in front of the apartment. She recalled seeing rocks in the grassy area on her walks with the dogs. Donovan located a bat in her bedroom and went outside to protect Brown who was protecting her and the dogs. She explained that Brown was the only thing separating Rodriguez from her and the dogs and that she would not have stood a chance against Rodriguez. She saw Rodriguez holding the branch like he was about to swing it and aiming it in their direction. Rodriguez also had a log in his other hand and continued to threaten them by saying he was going to kill them and their dogs. Donovan told Rodriguez to go home. Brown pointed the gun at the ground and told Donovan to go inside and call 911. Donovan testified that she went inside and dialed 911. She was about to hit the call button when she heard the gunshot. She hit the call button after the shooting and informed 11 the dispatcher what had happened. She went outside to check on Brown, noticed that the branch was broken apart and on the ground, and reported to the dispatcher that Rodriguez charged at Brown because that is what Brown told her had happened. She emphasized that both she and Brown asked the dispatcher to send help for Rodriguez. Additionally, she testified that Brown did not deny what happened and made no attempt to flee. She described her and Brown as being afraid for their lives; she believed that Rodriguez could have impaled her with the stick and thought that Rodriguez was going to try to kill them and their dogs. Further, she said that she had never been that scared before, had never had her life threatened, had never felt the need to arm herself before, and would have shot Rodriguez too if she had been in Brown’s shoes. She testified that Brown asked Rodriguez to leave three times, that she asked Rodriguez to leave twice, and that Rodriguez refused to leave them alone. One of the investigating detectives testified that there were no rocks in the area that could have been used to cause serious bodily injury or death and described the branch Rodriguez used “during the altercation” as decayed. The detective did not believe that the branch could have caused death or serious bodily injury because it was old and breakable. The detective opined that an individual being attacked by someone holding a branch would need to examine the branch to see if the type of branch would warrant a response by force. Although the detective explained that multiple branches were found in the area, he related that they were likely part of the same branch originally but that it broke apart when Rodriguez threw it at Brown. Additionally, the detective explained that he did not see any injuries to Brown, Donovan, their dogs, or their apartment. Further, the detective testified that Rodriguez was in a public place when he was in the grassy area and that a tenant cannot tell an individual to leave a common area even if the 12 individual is not legally there. The detective also testified that an individual who is not a tenant or a guest of a tenant has the right to access common areas and amenities and can and regularly use dog parks, swimming pools, and tennis courts located inside apartment complexes. Relatedly, the detective explained that the porch in front of Brown’s apartment was a public place because there was no gate to keep people out and because a substantial portion of the public had access to it. The detective also related that a trespasser can stay on the front porch of an apartment until the apartment complex manager gives a criminal trespass notice and that a trespasser does not have to leave a common area until told to leave by the apartment manager. Regarding Brown’s apartment, the detective explained that anyone living on the street or passing by had access to the porch. Additionally, the detective testified that no criminal trespass warning had been issued to Rodriguez for that apartment complex. The detective also explained that an individual has the right to use deadly force to stop the imminent commission of criminal mischief at night and that killing an individual’s pet would constitute criminal mischief. Further, the detective stated that someone can use deadly force to protect his property against someone who is trying to unlawfully use deadly force and that someone can use deadly force to prevent criminal mischief at night if the person reasonably believes that the property could not be protected by other means. Another detective testified that there were locks on the metal door to Brown and Donovan’s apartment, that it would have been prudent for them to lock the door, and that they could have remained inside and called 911 from there. Although the detective agreed that Brown and Donovan went outside to see if Rodriguez was returning to the complex and did not have a duty to retreat into their apartment, he testified that they reengaged the conflict by stepping outside their apartment. Further, the detective stated that the slope in the grassy area gave Brown 13 a tactical advantage over Rodriguez and that Brown’s statement to the police about how far Rodriguez was from Brown at the time of the shooting was inconsistent with where Rodriguez’s body was found. In his testimony, the detective agreed that the events leading up to the shooting were the following: Rodriguez threatened to kill Brown, Donovan, and their dogs with a knife; Rodriguez left the scene, armed himself with a branch and a log, returned to the complex, and again threatened to kill Brown, Donovan, and their dogs; and Rodriguez threw the branch at Brown with enough force to break apart the branch and damage the apartment’s exterior. When discussing Rodriguez, the detective explained that Rodriguez was not a trespasser even when returning to the property with a branch. Regarding Brown, the detective initially said that Brown was not lawfully on the front porch or sidewalk when he went outside and when Rodriguez threw the branch but later clarified that Brown was in a public place lawfully but was not on his own property. The detective agreed that there does not need to be some type of injury or damage before an individual can act in self-defense, in defense of others, or in defense of property; that an individual can defend himself against apparent danger; and that Rodriguez was instigating the conflict. However, the detective stated that there was no evidence that Rodriguez was going to commit murder. The detective opined that an individual could use a gun to defend himself against a use of force involving a stick but that would not apply here because Rodriguez no longer had the stick when he was shot and was not using unlawful deadly force. The medical examiner testified that Rodriguez died from the gunshot wound that lacerated his aorta and caused other injuries. She also explained that Rodriguez had a small amount of methamphetamine in his system and that methamphetamine can cause psychosis and hallucinations. Further, she stated that psychosis can make someone agitated and violent. In 14 addition, she related that sticks and pocketknives can cause serious bodily injury or death and that she has had cases in which individuals have been beaten to death and strangled by sticks. Although she explained that a stick’s capacity to be used for strangulation purposes would depend on the size and density of the stick, she testified that it would be difficult to strangle someone with a stick that would snap when thrown. Brown called as witnesses his mother, his father, his grandfather, a friend from college, and a co-worker from his gym. In addition to testifying about the events summarized above, they described Brown as a level-headed and peaceful person who is protective of those he cares about. Further, his grandfather described Brown as having compassion for homeless people. Brown’s father testified that Brown would not shoot an unarmed man if he knew the person was unarmed. He also testified that Tito was not an aggressive dog. Next, Brown elected to testify. In his testimony, he explained that he purchased the gun from his stepfather before moving to Austin, had never owned a gun before, had shot that gun on his family’s property in the past, and did not shoot the gun after purchasing it until the night in question. Regarding the incident, Brown testified that he was walking with Donovan and noticed Rodriguez walking toward the same path they were headed and that Rodriguez was forty to fifty feet ahead of them. Rodriguez made a hissing sound, which caused Tito to bark for a few seconds. According to Brown, Rodriguez “had a very delayed, surprised reaction . . . well after Tito stopped barking” and “all of a sudden[] seemed startled and then very, very angry.” Rodriguez started yelling at them, and Brown apologized to Rodriguez. Brown testified that Rodriguez was still far ahead of them and had been in no danger from the dogs. Rodriguez continued to yell aggressively, which seemed unusual for what had happened. Rodriguez stated 15 that he was “going to get my knife and kill that dog.” In response, Donovan may have told Rodriguez to “go home.” Brown recalled that Rodriguez walked away from them while threatening “to come back, kill the dog and then kill . . . you.” Brown was scared because nothing like that had ever happened to him, and he believed that Rodriguez was leaving the area to get a knife. Brown and Donovan continued to head home, and Brown stayed behind Donovan to position himself between Donovan and Rodriguez. Neither Donovan nor Brown followed Rodriguez, and Brown did not say anything to Rodriguez other than asking him to leave. Further, Brown related that it was dark and that the porch light in front of their apartment was not working. Brown saw Rodriguez leaving the property and jumping over a wall, and Brown hoped that the event was over but was concerned that Rodriguez could return with a knife. Brown testified that he and Donovan went inside the apartment after Rodriguez jumped over the wall. Once inside, he closed the door, dropped Tito’s leash, told Donovan to call the police, and went to the safe to retrieve the gun for protection. Once he had the gun, he went to the front door to see if Rodriguez was returning to the property and peeked outside. Brown saw Rodriguez crossing the street, holding a large branch that was over six feet tall and a log, and marching toward Brown and Donovan’s apartment. Brown believed Rodriguez was planning to attack Donovan, the dogs, and him and was concerned about all their safety. Brown moved out onto the front porch or walkway to the porch about six or seven feet from the front door. When Rodriguez arrived at the sidewalk in front of the apartment, he said “Where the fuck is that dog?” After Brown told Rodriguez not to worry about the dog, Rodriguez responded, “Okay. Then I’m going to kill you and then kill that dog.” 16 After that exchange, Rodriguez continued to advance. Brown testified that he again told Rodriguez to leave and then said that he had a gun. Brown testified that he had not yet removed it from his sweatshirt pocket. Rodriguez responded by telling Brown, “You’re not going to do anything,” and continued to advance toward Brown. Brown explained that he pulled the gun out of his pocket and pointed it at the ground. Around that time, Donovan came outside with a bat and told Rodriguez to leave. Brown told Donovan to go inside and call the police, and Donovan went inside. After Donovan went inside, Rodriguez threw the branch at him like a spear and damaged the wood trim on the wall. The branch passed by Brown at chest level and hit the building. Brown had to move out of the way to avoid getting hit. At that point, Rodriguez moved the log from his left hand to his right one, moved closer, and threw the log like a hatchet at Brown. Brown described Rodriguez as throwing the log as hard as he could and recalled that the log passed by close to his head before hitting the stone portion of the exterior wall. Brown believed that the log would have caused him serious bodily injury if it had hit his head or eyes. Next, Brown testified that Rodriguez moved onto the grassy lawn. Rodriguez bent down seemingly to pick something up with his right hand. Brown could not see what was in Rodriguez’s hand because Rodriguez’s body blocked the view. Brown testified that he believed Rodriguez was arming himself either by retrieving the knife he had mentioned earlier or by picking up a large rock from the area. From a running position, Rodriguez “charge[d]” at Brown and took a few steps before Brown fired the gun. Brown testified that he fired in self-defense. According to Brown, Rodriguez stumbled backward before falling forward. Brown explained that he fired only one shot when Rodriguez attacked, that he returned the gun to the safe, and that he had fired to prevent Rodriguez from killing them. Further, Brown stated 17 that he was the only person between Rodriguez and Donovan and the dogs, that Rodriguez never stopped advancing, and that if he had not used force, Rodriguez would have harmed or killed Donovan or the dogs. Brown testified that he had never been in a situation like that before and was scared for himself, Donovan, and the dogs. Although he believed that resorting to force was reasonable and appropriate under the circumstances, he emphasized that he did not want to shoot Rodriguez. Brown agreed that he could have locked the door and called the police, but he explained that he did not have time for the police to arrive before Rodriguez made it to the apartment and that he could not stop to call 911 because there was an immediate deadly threat in front of him. After both sides rested and closed, the jury found Rodriguez guilty of murder. During the punishment phase, the State called Rodriguez’s mother as a witness. In her testimony, she explained that Rodriguez was a kind, loving, and law-abiding person; that her family was grieving from their loss; and that she was having a difficult time, was no longer able to work, and had to put her engagement on hold. During her testimony, Brown sought to question her about Rodriguez’s criminal history, but the trial court denied that request. Brown then made an offer of proof outside the presence of the jury regarding Rodriguez’s criminal history that the State disclosed during discovery showing that he had an extensive criminal history in Austin that continued through the end of 2023 with all but a handful of the incidents occurring in the neighborhood where Brown lived. Specifically, Rodriguez had been given 18 criminal trespass notices by apartments and stores in the area, had been arrested 56 times, and had been convicted 23 times but given minimal sentences after pleading guilty. Rodriguez had been arrested for criminal trespass, theft, assault, possessing counterfeit money, possessing various controlled substances, criminal mischief, assault family violence, and burglary of a 18 residence. Several of his arrests involved allegations that he assaulted residents in apartment complexes and employees at stores in the area, including incidents in which he jumped the patio fence for an apartment unit, punched a resident, threatened to kill the resident, and threw a log at the resident; entered an apartment and slapped another resident in the face; forced his way into an apartment; and removed the window to an apartment to gain entry. After Brown finished making his offer of proof, he called an employee for the Travis County Pretrial Services, who testified that Brown complied with his curfew restrictions while awaiting trial after having moved back to Missouri. Next, Brown called his grandfather who explained that Brown was living with him, that Brown was helping him around the house, and that Brown had not violated any of the conditions of his release. However, his grandfather related that Brown was depressed and could not find a job because of this case. Brown called his uncle, who similarly testified that Brown was depressed and in counseling. Finally, Brown called his stepmother. She described Brown as a good child and a good brother. Further, she testified that Brown was profoundly changed by the incident and had been seeing a grief counselor. The jury charge for the punishment phase included an instruction on sudden passion. After the State and Brown rested and closed, the jury found that Brown was acting under sudden passion when he shot Rodriguez and sentenced him to eight years’ imprisonment. The trial court rendered its judgment of conviction consistent with the jury’s verdict. Brown appeals his conviction. 19 DISCUSSION In his first issue, Brown asserts that false evidence was presented at trial that violated his rights to due process and due course of law. In his second issue, he contends that the trial court erred by including the definition for “public place” in the jury charge for the guilt-innocence phase. In his third and fourth issues, he argues that the State made improper arguments during its closing arguments that violated his right to a fair trial. In his fifth and sixth issues, he claims that the trial court erred by failing to hold a live evidentiary hearing to address his motion for new trial and by failing to consider evidence presented during the motion for new trial hearing. Because it is dispositive, we will address Brown’s second issue first. Jury-Charge Error In his second issue on appeal, Brown contends that the trial court erred by including in the abstract portion of the jury charge the statutory definition for “public place.” He asserts that the “term has nothing to do with the elements of murder” and “nothing to do with the justification defenses included in the jury charge.” Further, he notes that he objected to the inclusion of the instruction and argues that the inclusion of the instruction caused him some harm, which should result in a reversal of his conviction. The State contends that inclusion of the definition was not error because evidence was presented at trial regarding whether the complex was a public place. When preparing a jury charge, a trial court must deliver to the jury a written charge distinctly setting forth the law applicable to the case. Tex. Code Crim. Proc. art. 36.14. Jury instructions must apply the law to the facts adduced at trial and conform to the allegations in the indictment. Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim. App. 2012). The charge 20 must contain an accurate statement of the law and set out all the essential elements of the offense. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995); see Tex. Code Crim. Proc. art. 36.14. The law applicable to the case includes “the elements of the offense and any statutory definitions that affect the meaning of those elements.” Burnett v. State, 541 S.W.3d 77, 81 (Tex. Crim. App. 2017). “Jury charges contain both an abstract section and an application section.” See Torres v. State, 691 S.W.3d 138, 147 (Tex. App.—Austin 2024, pet. ref’d). The abstract portion of a charge serves as a glossary to explain the meanings of concepts and terms used in the application paragraph of the charge but “does not authorize conviction on its own.” Id. “The application paragraph is the portion of the jury charge that applies the pertinent penal law, abstract definitions, and general legal principles to the facts and indictment allegations of a given case.” Id. When addressing an issue regarding an alleged jury-charge error, appellate courts must first decide whether there is error before addressing whether the alleged error resulted in any harm. See Thanh Cuong Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). In reviewing a charge for alleged error, we examine the charge as a whole rather than as a series of isolated and unrelated statements. Dinkins, 894 S.W.2d at 339; see Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). The instruction at issue was in the abstract section and set out the definition for “public space” found in section 1.07 of the Penal Code, which reads as follows: “Public place” means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport 21 facilities, and shops. Tex. Penal Code § 1.07(a)(40). The definition applies to criminal offenses for which public place is an element that must be proven, such as disorderly conduct, intoxication offenses, public lewdness, unlawfully carrying of a handgun, and making a terroristic threat. See id. §§ 21.07, 22.07, 42.01, 46.035, 49.02, .04, .045, .07, .08. The definition allows for the criminalization of conduct that occurred outside the home even if it occurs on property that is privately owned when it occurs in a location to which a sizeable enough subset of the population has access to that it makes sense to treat the property as a public place. See id. § 1.07. The concept also applies in the context of whether a warrant is necessary for law-enforcement officers to access the property and is designed to protect “the notion that a person’s home is his or her ‘castle’ entitled to all the rudiments of fundamental privacy.” See Loera v. State, 14 S.W.3d 464, 469 (Tex. App.—Dallas 2000, no pet.), see also Evans v. State, 995 S.W.2d 284, 286 (Tex. App.— Houston [14th Dist.] 1999, pet. ref’d) (noting that residents do not have reasonable expectation of privacy in common area of complex and determining that officers’ presence in common area without warrant did not violate tenant’s constitutional rights). The definition does not set out any ownership interest or give any particular person a right of access to the common areas of an apartment complex, which are privately owned property. See Owens v. State, No. 12-02-00087- CR, 2003 WL 21356045, at *2-3 (Tex. App.—Tyler June 11, 2003, no pet.) (mem. op., not designated for publication) (noting apartment manager’s testimony that apartment was private property and explaining that non-tenants could be excluded from property), abrogated on other grounds by Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). 22 As Brown points out, the term “public place” is not an element of the offense of murder or the justification defenses relied on by Brown: self-defense, defense of third person, protection of property, and protection of a third person’s property. See Tex. Penal Code §§ 9.31, .32, .33, .41, .42, .43, 19.02. Because the term was not an element of proof at trial, the inclusion of the definition for the term in the abstract was error. See Dinkins, 894 S.W.2d at 339; Cormier v. State, 540 S.W.3d 185, 189 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (explaining that law applicable to case includes definitions that affect meaning of elements of offense); see also Murphy v. State, No. 05-09-01188-CR, 2011 WL 1588000, at *2 (Tex. App.—Dallas Apr. 28, 2011, no pet.) (op., not designated for publication) (concluding that inclusion of “the definition of ‘public place’” in abstract portion of charge “was error” because term was not element of proof at trial). Having determined that there was error, we must now determine whether Brown was harmed by the inclusion of the definition in the abstract section. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). The amount of harm needed for a reversal for jury charge error depends on whether a complaint regarding “that error was preserved in the trial court.” Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d). If no objection was made, a reversal is warranted only if the error “resulted in ‘egregious harm.’” See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). However, if the defendant made a timely objection, as in this case, reversal is required if there has been “some harm.” Thanh Cuong Ngo, 175 S.W.3d at 743 (quoting Almanza, 686 S.W.2d at 171). “In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.” Almanza, 686 S.W.2d at 171; see also Chambers v. State, 580 S.W.3d 149, 154 (Tex. 23 Crim. App. 2019) (explaining that presence of any harm, regardless of degree, is sufficient to require reversal). 1 In this type of analysis, reviewing courts “consider: (1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors present in the record.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Although the standard is less stringent than the analysis performed when an objection is not made, the reviewing court must still “find that the defendant ‘suffered some actual, rather than merely theoretical, harm from the error.’” Id. (quoting Warner v. State, 245 S.W.3d 458, 463 (Tex. Crim. App. 2008)). Entire Jury Charge Regarding the first factor, as set out above, the abstract improperly included the definition for public place; however, that term was not mentioned in the application section. Although the Court of Criminal Appeals has explained that the erroneous inclusion of a 1 In its brief, the State acknowledges that Brown objected to the inclusion of the definition for public place in the charge, but the State contends that the objection made at trial does not comport with the claims made on appeal, that his appellate claims were not preserved, and that the issues should, accordingly, be reviewed for egregious harm rather than some harm. We disagree. At trial, Brown presented multiple objections to the inclusion of the term public place, including that the inclusion would mislead the jury because the definition did not include other relevant information such as whether Rodriguez was a trespasser and because it improperly gave the impression that the jury could apply the concept when determining if Rodriguez’s actions were authorized. By arguing that the public place instruction should not be included because it improperly allowed the jury to consider that concept when making its ultimate determination, we believe that Brown preserved his claim that the instruction was erroneous because public place is not an element of the charged offense or of his justification defenses. See Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (“‘Magic words’ are not required; a complaint will be preserved if the substance of the complaint is conveyed to the trial court.”); Lewis v. State, --- S.W.3d ---, No. 03-24-00736-CR, 2026 WL 1618131, at *10 (Tex. App.— Austin June 5, 2026, no pet. h.) (noting that objection need not employ hypertechnical, formalistic, or magic words nor refer to particular statute). 24 superfluous instruction in the abstract section does not result in reversible error, see 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), it has also explained that an instruction is not superfluous when it is an incorrect or misleading statement of law that the jury must understand in order to implement the application paragraph, Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012); see also Chaney v. State 314 S.W.3d 561, 568-69 (Tex. App.—Amarillo 2010, pet. ref’d) (noting that Court of Criminal Appeals has clarified in unpublished opinion that appellate courts must consider four Almanza factors when deciding whether there was reversible error from erroneous inclusion of instruction in abstract). In this case, the charge informed the jury that “the law applicable to this case is as follows” before providing the definitions in this case. The charge placed the definition for “public place” immediately above the definition for “[r]easonable belief” and three spots above the definition for “[u]nlawful,” and both of those concepts are foundational elements of the justifications relied on by Brown: self-defense, defense of a third person, protection of property, and protection of a third person’s property. See Tex. Penal Code §§ 9.31, .32, .33, .41, .42, .43. By instructing the jury that the law applicable to the case included the definition for public place, the charge misled the jury that it could consider whether a location was a public space when determining whether Brown reasonably believed that his actions were justified and whether Rodriguez’s actions before the shooting were unlawful while implementing the application paragraph. Moreover, unlike cases in which the erroneous inclusion of an instruction in the abstract did not result in harm because the application paragraph did not provide a mechanism by which the erroneous instruction could be incorporated, see Crenshaw, 378 S.W.3d at 467 25 (determining that inclusion of per se definition for intoxication in abstract was not reversible error where application section did not authorize conviction based on per se intoxication and instead allowed conviction only for subjective intoxication as charged), nothing in the application section in this case prevented the jury from improperly considering whether the events took place in a public place, see Jaimes v. State, 708 S.W.3d 279, 286 (Tex. App.— Amarillo 2024, pet. granted) (determining that there was reversible error in jury charge where abstract included mens rea instruction that included applicable and inapplicable conduct elements and where application paragraph did not correct error). In light of the preceding, we conclude that the first factor weighs in favor of some harm. See Wade v. State, 594 S.W.3d 804, 817 (Tex. App.—Austin 2020), aff’d, 663 S.W.3d 175 (Tex. Crim. App. 2022); see also Brador v. State, 729 S.W.3d 434, 446 (Tex. App.—Austin 2025, pet. ref’d) (concluding that entirety of charge did not ameliorate deficiency in self-defense instruction). Arguments of Counsel Turning to the second factor, the State asserted in its closing argument that Brown’s actions were not justified, that justification defenses do not contemplate someone coming back outside and shooting someone, that Morales’s testimony was inconsistent with self-defense, that Brown chose to shoot “a poor homeless man” with “mental health issues,” that Brown shot Rodriguez “because [he was] homeless,” and that Brown got the gun to show Rodriguez that he was “nobody” but that Brown was “somebody.” When presenting these arguments, the State repeatedly emphasized that the events occurred in a “public place.” For example, the State asserted that Brown was guilty because he engaged in deadly force outside his 26 apartment “in a public place.” Further, the State argued that Rodriguez was in a “public place” throughout the entire encounter and found in the grass in “a public place.” In addition, the State characterized Brown’s coming outside as provoking Rodriguez, asserted Brown decided to “walk[] outside of his property to reengage with . . . Rodriguez,” urged that Rodriguez was not on Brown’s property, and argued that Brown’s actions were not reasonable. Later, the State asserted that Brown “left the safety of his own home . . . and . . . walked outside into a public area so he can reengage and confront . . . Rodriguez,” that you “don’t step outside into a public place and start waving your gun around,” and that “going outside and going into a public place and reengaging with a homeless man with a stick, with a firearm, doesn’t sound very lawful.” The State also argued that Rodriguez was not a trespasser. In his closing arguments, Brown’s counsel emphasized the testimony supporting the justification defenses. Although Brown’s counsel briefly stated that Rodriguez was a trespasser on the night in question, he did not make any arguments concerning the term “public place.” Cf. Brador, 729 S.W.3d at 447 (noting that nothing in parties’ arguments clarified error in jury charge). Considering the emphasis that the State placed on having the jury consider whether the location was a public place when determining whether Brown’s actions were reasonable and lawful, we conclude that the second factor also weighed in favor of some harm. See Wade, 594 S.W.3d at 817; see also Gelinas v. State, 398 S.W.3d 703, 709 (Tex. Crim. App. 2013) (plurality op.) (emphasizing “that jury arguments bear significantly on an Almanza analysis”). 27 State of the Evidence Turning to the third factor, we note that there was no dispute that Brown shot Rodriguez and that the disputed issue was whether Brown’s actions were justified. See Brador, 729 S.W.3d at 447 (noting that issue of self-defense was hotly disputed); see also Mendez v. State, 515 S.W.3d 915, 928 (Tex. App.—Houston [1st Dist.] 2017) (determining that state of evidence weighed in favor of harm “because of the conflicting evidence on the self-defense issue”), aff’d by 545 S.W.3d 548 (Tex. Crim. App. 2018). Moreover, Brown’s justification theories “did not rest solely upon his own testimony.” See Mendez, 515 S.W.3d at 927. In addition, testimony was presented at trial indicating that Rodriguez’s actions were reasonable and lawful and that Brown’s actions were not because the events occurred in a public place. For example, one of the detectives explained that Rodriguez was in a public place while in front of Brown’s apartment and that a tenant may not tell a non-tenant to leave a public place. In fact, the detective testified that a trespasser had the right to stay where Rodriguez was and even move to the front porch and stay there for as long as he wanted unless told otherwise by an apartment manager, not a tenant. Another detective testified that Rodriguez was not on the property unlawfully even when he returned with a branch. In contrast, although the detective partially retracted the statement later, he testified that Brown was not lawfully on the front porch or sidewalk. Moreover, multiple witnesses testified that Brown and Donovan told Rodriguez to leave, which one detective described as being improper. Considering that there was conflicting evidence regarding the justification defenses and that evidence was presented undermining those defenses based on the proposition that the location where the events occurred qualified as a public place, we conclude that this 28 factor also weighs in favor of some harm. See Brador, 729 S.W.3d at 449; Wade, 594 S.W.3d at 818. Other Relevant Factors Regarding the final factor, we note that the erroneous inclusion of the definition of public place undermined Brown’s sole defense: whether his actions were justified. See Reeves, 420 S.W.3d at 820-21 (considering this in other relevant factors); Clifton v. State, No. 09-19-00068-CR, 2020 WL 4494658, at *8 (Tex. App.—Beaumont Aug. 5, 2020, no pet.) (mem. op., not designated for publication) (same). Accordingly, we conclude that the fourth factor weighs on the “some harm” side of the scale rather than the “no harm” side. See Reeves, 420 S.W.3d at 821. Whether Brown’s actions were justified was a vital defensive issue in this case, and the jury was incorrectly instructed to consider the definition of “public place” when deciding whether to find him guilty of the charged offense. See Brador, 729 S.W.3d at 449. The error in the charge “was not clarified by the jury arguments.” See Mendez, 515 S.W.3d at 928. On the contrary, the arguments compounded the error. The evidence pertaining to the justification defenses was hotly contested, and the testimony at trial indicated that the alleged public nature of the locations at issue undermined Brown’s justification defenses. See Brador, 729 S.W.3d at 449. Moreover, the erroneous jury charge undermined Brown’s sole theory: that his actions were justified. See Reeves, 420 S.W.3d at 820-21. For these reasons, we conclude that the jury charge error caused some harm and sustain his second issue on appeal. See Brador, 729 S.W.3d at 449. Because we have sustained 29 Brown’s second issue, we need not address his remaining appellate issues. See Tex. R. App. P. 47.1. CONCLUSION Having sustained Brown’s second issue, we reverse the trial court’s judgment of conviction and remand the case for further proceedings consistent with this opinion. See Brador, 729 S.W.3d at 449-50. __________________________________________ Karin Crump, Justice Before Justices Triana, Crump, and Ellis Reversed and Remanded Filed: September 4, 2026 Do Not Publish 30 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11436527. Public record. Not legal advice.