Petition for Writ of Certiorari — Isaiah Kain Salas-Martinez, Petitioner v. Texas

Supreme Court briefJul 3, 2026

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No. ________________

IN THE

SUPREME COURT OF THE UNITED STATES

____________________________

ISAIAH KAIN SALAS-MARTINEZ,

Petitioner,

TEXAS,

Respondent.

____________________________

On Petition for a Writ of Certiorari

to the Texas Court of Criminal Appeals

____________________________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

____________________________

Jeffrey R. Newberry

Texas Bar No. 24060966

David R. Dow*

Texas Bar No. 06064900

University of Houston Law Center

4170 Martin Luther King Blvd.

Houston, Texas 77204-6060

Tel. (713) 743-6843

Fax (832) 842-4671

Counsel for Isaiah Kain Salas-Martinez

*Member of the Supreme Court Bar

Appendix A

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

FILE COPY

3/5/2026

01-23-00099-CR

SALAS-MARTINEZ, ISAIAH KAIN Tr. Ct. No. 1799164

PD-1076-24

On this day, the Appellant’s motion for rehearing has been denied.

Deana Williamson, Clerk

JEFFREY NEWBERRY

6435 BELLA SERA DR.

SPRING, TX 77379

* DELIVERED VIA E-MAIL *

Appendix B

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1076-24

ISAIAH KAIN SALAS-MARTINEZ, Appellant

THE STATE OF TEXAS

ON APPELLANT’S MOTION FOR REHEARING

AFTER WRITTEN OPINION ON

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

PARKER, J., filed a concurring opinion in which FINLEY J., joined.

CONCURRING OPINION

In his petition, Appellant had raised a seemingly burning issue: whether a

Texas statute prohibiting the carrying of a firearm—except in his home or his

vehicle or en route to his vehicle—violated the Second Amendment under the

SALAS-MARTINEZ CONCURRENCE— 2

Supreme Court’s recent decision in Bruen.1 But Appellant did not raise this claim

at trial, and under Karenev2 that means he forfeited it. Appellant seeks to

distinguish Karenev—relying upon Smith3—but there are at least four obstacles to

relief under Smith, and at least two of those—found in Bruen itself and in

Beck4—are indisputably insurmountable in his case.

And in addition to the Karenev problem, the firearm statute has been

amended to limit its application to narrow classes of people5—which do not

include Appellant—deflating the jurisprudential value of a decision in Appellant’s

case. For these and perhaps other reasons, the Court had ample bases for

dismissing Appellant’s petition as improvidently granted.

A. Appellant’s Case

Appellant was charged with, and ultimately convicted of, murder

New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022).

Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009).

Smith v. State, 463 S.W.3d 890 (Tex. Crim. App. 2015).

Ex parte Beck, 541 S.W.3d 846 (Tex. Crim. App. 2017).

See TEX. PENAL CODE § 46.02(a)(2)(A), (B) (West 2026) (2021 amendment) (limiting

the scope of the statute to someone who is younger than age 21 or has been convicted of certain

offenses within the prior five years).

SALAS-MARTINEZ CONCURRENCE— 3

(committed in December 2017).6 Self-defense was submitted in the jury charge.

For Appellant to prevail on that defense, the jury had to at least have a reasonable

doubt about whether Appellant “reasonably believe[d] [that] deadly force [was]

immediately necessary . . . to protect the actor against the [the decedent’s] use or

attempted use of unlawful deadly force.”7

However, even if the elements of self-defense were otherwise met, the selfdefense statute provided that the defense is unavailable “if the actor sought an

explanation from or discussion with the other person concerning the actor’s

differences with the other person while the actor was . . . carrying a weapon in

violation of Section 46.02.”8 And at the time of Appellant’s conduct, Section

46.02 provided that a person commits an offense if he:

(1) intentionally, knowingly, or recklessly carries on or about his or her

person a handgun or club; and

(2) is not:

(A) on the person’s own premises or premises under the person’s

control; or

See id. § 19.02(b).

See id. § 9.32(a)(2) (bracketed material substituted for original for clarity and ease of

reading); see also id. § 9.31(a).

Id. § 9.31(b)(5)(A).

SALAS-MARTINEZ CONCURRENCE— 4

(B) inside of or directly en route to a motor vehicle or watercraft that

is owned by the person or under the person’s control.9

As I explained earlier, that statute has since been amended and would no longer

apply to Appellant, but a savings clause provides that the law in effect at the time of

the offense controls.10 It is also important to note that Section 46.15 contains a

number of exemptions from Section 46.02,11 the significance of which I shall

explain later. Appellant did not complain at trial that former Section 46.02 was

unconstitutional, nor did he complain about the constitutionality of the selfdefense provision that incorporated Section 46.02.

B. Karenev and Procedural Default

In Karenev, the defendant raised for the first time on appeal a claim that the

statute defining his offense was facially unconstitutional.12 Finding against the

defendant, this Court concluded that a facial challenge to the constitutionality of a

statute is forfeited if not raised at trial because “[s]tatutes are presumed to be

constitutional until it is determined otherwise.”13 And the Court also expressed

Id. § 46.02(a) (West 2018) (last amendment effective September 1, 2017).

Acts 2021, 87th Leg., ch. 809 (H.B. 1927), § 28, eff. Sept. 1, 2021.

See TEX. PENAL CODE § 46.15.

281 S.W.3d at 429-30 (facial challenge to harassment statute).

Id. at 434.

SALAS-MARTINEZ CONCURRENCE— 5

the concern that, “The State and the trial court should not be required to

anticipate that a statute may later be held to be unconstitutional.”14 Although the

lack of objection does not generally forfeit a jury-charge error—merely relegating it

to a more onerous standard of harm15—this Court has determined that, when the

issue is whether the statute that supports a jury instruction is facially

constitutional, Karenev’s rule of preservation applies.16 As a consequence, absent

an objection in that situation, error is forfeited entirely, and there is no occasion for

a harm analysis.17 In essence, the failure to challenge the statute at trial means the

presumption of constitutionality remains unrebutted, and, if the instruction

conforms to the statute and is otherwise applicable to the case, no error can be

shown.

Appellant’s challenge to the firearm statute is a facial constitutional

challenge, and he did not raise it at trial. Nor did he raise a trial challenge to the

Id.

Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018); Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

See Estrada v. State, 313 S.W.3d 274, 305-06 (Tex. Crim. App. 2010) (“[A]ppellant

presents what he characterizes as ‘instructional errors at sentencing.’ These points, however,

are really facial constitutional challenges to various portions of Article 37.071. The record,

however, reflects that appellant did not preserve these claims for appeal.”) (citing Karenev).

See id.

SALAS-MARTINEZ CONCURRENCE— 6

self-defense provision that incorporated the firearm statute. Consequently,

Karenev bars review unless he can find a way around that decision.

Appellant did not address Karenev in his original briefing; the State brought

up the decision as a reason to dismiss Appellant’s petition as improvidently

granted. In a reply brief, Appellant responded that his situation fell within an

exception to Karenev that was articulated in Smith, and he also claimed that Beck

provided additional ammunition for his argument. In his current motion, he

continues to argue that his claim falls within the Smith exception. Notably,

Appellant has never argued that we should re-examine Karenev but has instead

contended that Karenev is distinguishable because of the exception in Smith.

Smith addressed a claim that the online-solicitation provision under which

the defendant had been convicted had been declared facially unconstitutional in Ex

parte Lo.18 As in Karenev, the defendant in Smith failed to raise his facial

constitutional challenge at trial.19 But this Court distinguished Karenev, finding

that Lo’s previous holding of invalidity made all the difference:

Smith, 463 S.W.3d at 893-97.

See id. at 893 (the defendant contended “that his failure to object to the

constitutionality of this statute at the trial-court level is irrelevant because an ‘unconstitutional

and void law may be attacked regardless of whether the complaining party objected at the trial or

appellate stage.’”).

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SALAS-MARTINEZ CONCURRENCE— 7

But the situation in that case is distinguishable from the present one in

appellant’s case. In Karenev, the defendant was attacking a valid

statute that had not yet been declared void. In the present case,

appellant is seeking relief for a conviction of a non-crime under a

statute that has already been held to be invalid.20

The Smith court also said that a defendant could not forfeit—or even waive—a

complaint that the statute under which he had been convicted had already been

declared unconstitutional and void.21

Appellant claims that he falls within the Smith exception because the United

States Supreme Court invalidated former Section 46.02(a), before his trial even

began, in Bruen. But at least four obstacles stand in the way of his claim that Bruen

satisfies the Smith exception, and at least two are indisputably insurmountable.

First, Bruen did not purport to address Section 46.02; it invalidated a New

York law.22 This fact contrasts with what actually happened in Smith, where the

very statute at issue in the case was explicitly invalidated by Lo. For Appellant to

prevail, we would have to extend the scope of the Smith exception, and there is at

least one substantial arguable reason not to do that: without an explicit invalidation,

the State and the trial court are not provided the requisite notice that the statute

Id. at 896.

Id.

597 U.S. at 11-12.

a11

SALAS-MARTINEZ CONCURRENCE— 8

has been voided. Part of Karenev’s rationale was that the State and the trial court

should not have to anticipate that a statute will be held unconstitutional. No such

anticipation is required if the statute has been explicitly invalidated in a court

decision. But without such explicit invalidation, the State and the trial court might

not even think to look at the case that the defendant later relies upon on appeal.

Second, the statute at issue in Bruen differs substantially from Section 46.02.

Perhaps if the statutes were virtually identical, one could make an argument that

Bruen’s invalidation of the New York statute was tantamount to an invalidation of

the Texas statute, but such is not the case. The New York statute in Bruen was a

licensing scheme, and that scheme made it a crime to possess any firearm without

a license, whether inside or outside the home.23 Further, to be authorized to

possess a firearm outside the home, the scheme required that the applicant prove

that “proper cause exists” to issue a license to do so, and New York courts

interpreted the “proper cause” requirement to mean the showing of “a special

need for self-protection distinguishable from that of the general community.”24

By contrast, Texas’s former Section 46.02 was not a licensing scheme. No

Id. at 12.

Id.

a12

SALAS-MARTINEZ CONCURRENCE— 9

license was required to carry a firearm under the conditions that provision

specified as permissible—in one’s home or in one’s vehicle or en route to one’s

vehicle.25 In his reply brief, Appellant contended that even though New York’s

scheme was a licensing scheme, Section 46.02 was worse under the Second

Amendment because “the New York regulation did not bar all residents

from carrying a handgun at any time outside of the home for self defense, while

section 46.02(a) did just that.” This reasoning echoed statements he made in his

brief on original submission that “the version of section 46.02 at issue in this case

made it unlawful for every person in the State to possess a weapon outside of

their home (or vehicle)” and that “section 9.31(b)(5)(A) prevented any defendant

who possessed a handgun outside of his house or vehicle from claiming he acted in

self-defense if he harmed another while seeking a discussion with that person.”

But these statements erroneously view former Section 46.02 in isolation, without

accounting for exemptions from that provision’s application contained in Section

46.15.26 Section 46.15 provided that Section 46.02 “does not apply” when, among

other things, the person has a license to carry a handgun and does so in a concealed

See TEX. PENAL CODE § 46.02(a) (West 2018).

See id. § 46.15 (West 2018) (last amendment effective September 1, 2017).

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SALAS-MARTINEZ CONCURRENCE— 10

manner or in a holster.27 And in Bruen, the Supreme Court included Texas as one

of 43 “shall issue” jurisdictions, where, unlike New York, “authorities must issue

concealed-carry licenses whenever applicants satisfy certain threshold

requirements, without granting licensing officials discretion to deny licenses based

on a perceived lack of need or suitability.”28 The Supreme Court’s notation of

Texas as a “shall issue” jurisdiction conclusively defeats any claim that Bruen even

impliedly invalidated any Texas firearm statute.29

A third obstacle to Smith’s application is that invalidating Section 46.02

would not eliminate the entire basis for Appellant’s prosecution. As I discussed

earlier, Smith premised the nonforfeitable and nonwaivable nature of the right at

issue in that case on the invalid statute being the one that defined the offense, so

that the defendant had the status of being convicted of a “non-crime.” And as I

Id. § 46.15(b)(6) (West 2018). Exceptions also include “traveling” and engaging in a

“lawful hunting, fishing, or other sporting activity.” Id. § 46.15(b)(2), (3).

Bruen, 597 U.S. at 13 & n.1. Texas amended its licensing statute in 2021 to modify

notice requirements and provide for expedited issuance. These changes did not effect the fact

that Texas was a “shall issue” state under the prior version of the statute, effective in 2016. See

TEX. GOV’T CODE § 411.177 (LEXIS 2017 and 2021).

See Bruen, supra at 11 (“In 43 States, the government issues licenses to carry based on

objective criteria. But in six States, including New York, the government further conditions

issuance of a license to carry on a citizen’s showing of some additional special need. Because the

State of New York issues public-carry licenses only when an applicant demonstrates a special

need for self-defense, we conclude that the State’s licensing regime violates the Constitution.”).

a14

SALAS-MARTINEZ CONCURRENCE— 11

have previously discussed, Appellant was prosecuted for murder, not for a firearm

offense. Murder is, of course, a crime. At most, Section 46.02 constituted a basis

for negating Appellant’s claim of self-defense. And Section 46.02’s limited role in

Appellant’s case actually heightens the notice concerns articulated by Karenev. By

failing to object, Appellant deprived the trial court and the State of the opportunity

to decide to omit the anti-defensive instruction and for the State to possibly obtain

a conviction anyway.

A fourth obstacle to applying Smith is that Section 46.02 did not operate as a

standalone statute in Appellant’s prosecution; it was incorporated into an

exclusion in the self-defense statute. The real question under Karenev isn’t

whether former Section 46.02 has been declared facially unconstitutional; it is

whether such a declaration has been made of the incorporating statute—Section

9.31(b)(5), the self-defense exclusion provision.

The Court recognized this type of situation in Beck.30 The offense in Beck

prohibited an improper relationship between an educational employee and a

student.31 The subject of the improper relationship was the educational

541 S.W.3d at 857-59.

Id. at 858.

a15

SALAS-MARTINEZ CONCURRENCE— 12

employee’s online interaction with a student in violation of an online-solicitation

statute.32 The improper-relationship statute incorporated the online solicitationstatute as a statutory means of having an improper relationship, but the improperrelationship statute had other elements (educational-employee and student status)

not required by the online-solicitation statute.33 The online-solicitation statute had

been declared facially unconstitutional (in Lo), but the improper-relationship

statute hadn’t.34 And because the extra elements in the improper-relationship

statute narrowed the scope of conduct affected, this Court’s holding in Lo was

“not a binding judicial declaration that the improper-relationship statute, which

applies much more narrowly to educational settings, is also unconstitutional.”35

The improper-relationship statute was “an entirely different statute that applies in

a much narrower context.”36 Consequently, the Smith exception to Karenev did

not apply, and the defendant’s failure to raise a facial constitutional challenge at

Id. at 857.

Id. at 849.

See id. at 858-59.

Id. at 859.

Id. at 860.

a16

SALAS-MARTINEZ CONCURRENCE— 13

trial forfeited his complaint.37

In his reply brief on discretionary review, Appellant contended that Beck

endorsed “the idea that an opinion issued by a court with authority . . . can render

a statute void even without mentioning the specific statute.” He claimed that Beck

“turned on the degree to which [the] opinion in Lo applied to section 21.12”and

that Beck found “section 21.12 to be sufficiently tailored and therefore not suffering

from 33.021’s overbreadth.” Appellant’s reply brief read too much into Beck. As

my prior discussion shows, Beck never held that the improper-relationship statute

was sufficiently tailored; the Court never reached the substantive issues in the case.

What the Court held was that the improper-relationship statute was distinct from

and narrower than the online-solicitation statute and that one could not

automatically conclude that the holding in Lo extended to the improper-relationship

statute at issue in Beck.38

The reasoning in Beck applies squarely to facts of the present case. The selfdefense exclusion at issue in this case is part of an entirely different statute than the

firearm statute it incorporates—being located in an entirely different chapter of the

Id.

Id. (“Thus, this Court’s decision in Lo that invalidated the online-solicitation

provision did not also automatically invalidate the improper-relationship statute.”).

a17

SALAS-MARTINEZ CONCURRENCE— 14

Penal Code within a statute that does not even codify an offense. And the selfdefense exclusion does not depend solely on a violation of Section 46.02; it also

depends on the defendant having “sought an explanation from or discussion with

the other person concerning the actor’s differences with the other person.”39 That

additional language makes the self-defense exclusion narrower than the firearm

offense. And at least ordinarily, the exclusion would come into play only if selfdefense were being asserted in connection with a crime distinct from the offense in

Section 46.02—in this case, the crime of murder—which would further narrow the

exclusion’s application.40 Consequently, under Beck, even if it could be shown that

Bruen had in fact declared Section 46.02 to be facially unconstitutional, that would

not automatically make the self-defense exclusion unconstitutional. And while

Beck involved a claim under the First Amendment, and the present case involves a

claim under the Second Amendment, the Supreme Court’s Bruen decision itself

suggested that both constitutional provisions were analogous in requiring historical

See TEX. PENAL CODE § 9.31(b)(5)(A).

I need not address the possibility of self-defense being asserted as a defense to a

Section 46.02 offense, because any unique issues associated with that context would not render

the self-defense-exclusion provision facially unconstitutional.

a18

SALAS-MARTINEZ CONCURRENCE— 15

analyses to determine the scope of the right at issue.41 In both contexts, the breadth

of a restriction on the right at issue is highly relevant to whether it is permissible.42

Thus, Appellant’s attempt to invoke the Smith exception necessarily fails under

Beck.

C. Conclusion

Karenev bars Appellant’s claim. To reach his claim, we would have to

overrule Karenev—something Appellant has not asked us to do. And some of my

discussion also shows that Appellant has misunderstood the reach of Section

46.02, which seriously undermines the substance of his claim. And holding

Section 46.02 unconstitutional would not even come close to disposing of

Appellant’s case—an appellate court would still have to consider whether such a

holding made the self-defense-exclusion provision unconstitutional, and if so,

whether Appellant was egregiously harmed by the self-defense-exclusion

instruction. Also, Section 46.02 has since been amended to significantly narrow

597 U.S. at 24 (“This Second Amendment standard accords with how we protect other

constitutional rights. Take, for instance, the freedom of speech in the First Amendment, to

which Heller repeatedly compared the right to keep and bear arms.”) (pointing out that a

historical analysis is used to determine whether a category of speech is unprotected under the

First Amendment).

See id. at 22 (pointing to historical analyses under the Second Amendment that

consider the severity of the restriction); Beck, 541 S.W.3d at 859 (remarking that Lo considered

the “sweeping breadth” of the restriction on speech).

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SALAS-MARTINEZ CONCURRENCE— 16

the classes of people to which it applies, which would deflate the jurisprudential

value of a holding in Appellant’s favor regarding the constitutionality of former

Section 46.02. Consequently, I concur in the Court’s decision to deny Appellant’s

motion for rehearing.

Filed: March 5, 2026

Publish

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Appendix C

a21

In the Court of Criminal Appeals of

Texas

════════════

No. PD-1076-24

════════════

ISAIAH KAIN SALAS-MARTINEZ, Appellant

THE STATE OF TEXAS

═══════════════════════════════════════

On Appellant’s Petition for Discretionary Review

From the First Court of Appeals

Harris County

═══════════════════════════════════════

Per curiam.

We granted Appellant’s petition for discretionary review to

consider whether Penal Code Section 46.02, which says it is unlawful

for a person to carry a gun outside of his house, is unconstitutional in

light of the Supreme Court’s opinion issued in New York State Rifle and

a22

SALAS-MARTINEZ – 2

Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022)? Having now

examined the record and the briefs of the parties, we conclude that our

decision to grant review in this particular case was improvident. We

therefore dismiss Appellant’s petition as improvidently granted.

DELIVERED:

DO NOT PUBLISH

January 15, 2026

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Appendix D

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Opinion issued August 22, 2024

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-23-00099-CR

———————————

ISAIAH KAIN SALAS-MARTINEZ, Appellant

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Case No. 1799164

MEMORANDUM OPINION

A jury convicted appellant Isaiah Kain Salas-Martinez (“Martinez”)1 of firstdegree murder, and the trial court sentenced him to twelve years’ confinement.2 In

In this opinion, we refer to Martinez by his preferred name.

See TEX. PENAL CODE §§ 19.02(b)(1)–(3), (c), 12.32(a).

a25

four issues on appeal, Martinez argues that: (1) the trial court erred by including in

the self-defense portion of the jury charge an instruction on Penal Code section

46.02, which he contends violated his rights under the Second and Fourteenth

Amendments; (2) his trial counsel provided ineffective assistance by failing to object

to inclusion of section 46.02 in the jury charge; (3) the evidence was legally

insufficient to support the jury’s guilty verdict; and (4) the trial court abused its

discretion by denying his request to admit certain impeachment evidence. We affirm.

Background

On the evening of December 16, 2017, Amy Sovinsky and Jonathan

Fernandez hosted a small party at their house.3 Amy and Jonathan had a baby

together and lived with Amy’s parents, but Amy’s parents and the baby were away

from home for the night. Amy and Jonathan invited a few friends, most of whom

they knew from high school, to the party. Approximately ten people attended.

Relevant here, Jonathan invited his cousin, Michael Longoria. Michael invited his

friend, Chase Harrell, who attended college out of town but was home visiting his

family in Houston during the winter break. Chase took his brother, Cole Harrell, the

complainant. Amy invited her friend Alexis Quezada, who is Martinez’s girlfriend.

We refer to persons other than Martinez by their first names for clarity.

a26

Martinez was not invited to the party because he did not know anyone there. 4 The

partygoers drank alcohol and played drinking games.

By the early hours of December 17, only Amy, Jonathan, Alexis, Michael,

Chase, and Cole remained at Amy’s house. While they socialized in the kitchen,

Alexis became sick or intoxicated and went upstairs to sit in the movie room.

Michael followed her upstairs to check on her. Within a few minutes after entering

the movie room, Alexis said she needed to throw up. She rushed to a nearby

bathroom but vomited in the hallway. Michael called downstairs from the balcony

to let the others know that Alexis had vomited upstairs. Amy, Jonathan, Chase, and

Cole went upstairs. Jonathan cleaned up the vomit, and then he, Michael, Chase, and

Cole returned downstairs to the kitchen. Amy took Alexis into a bathroom, helped

her shower, gave her some clothes to wear, and helped her into Amy’s bed to rest.

Amy then went back downstairs and rejoined the others.

A little while later, Michael returned upstairs to check on Alexis. Alexis asked

him if he had seen anybody touch or try to touch her inappropriately, but Michael

said he had not and returned downstairs. Around 2:30 a.m., Amy went upstairs to

check on Alexis. She found Alexis sitting in the bathroom talking to Martinez on the

phone. Alexis was crying, and she told Martinez that someone had tried to touch her.

The appellate record indicates that Martinez had previously met Amy and had been

to her house one time, but they were not social acquaintances. Martinez and the

other males at the party did not know each other.

a27

Martinez testified at trial that he was asleep at home when he received a FaceTime

call from Alexis. Martinez could see her sitting in a bathtub, crying and hysterical.

She asked him to pick her up from Amy’s house because “[s]he had been assaulted,

sexually assaulted.” Amy then took the phone from Alexis and left the room. Amy

and Martinez spoke with each other for several minutes, and Amy gave Martinez her

address.

Upon hearing Alexis’s accusation that she was sexually assaulted, Martinez

decided to go to Amy’s house to pick up Alexis. He got out of bed and dressed

himself. Then he grabbed a shotgun and handgun. He claimed that the shotgun was

unloaded. He put the handgun, which was loaded, in a holster in the waistband of

his pants. He then drove over to Amy’s house. On the way, he called Alexis’s phone

two more times, including once to get the code to enter the gate into Amy’s

neighborhood. Amy answered Alexis’s phone both times and spoke to Martinez.

When Martinez arrived at Amy’s house, Amy told Jonathan that Alexis’s

boyfriend was there to pick her up. She then went to the front door, opened it, and

saw Martinez standing there “with a shotgun across his chest.” Neither person said

anything. Instead, Amy ran away from Martinez and hid in a vacant lot next door.

Martinez entered the house in search of Alexis. From the front door, he proceeded

to the back of the house towards the kitchen area. Jonathan, Michael, Chase, and

Cole were on the back patio immediately outside the kitchen. As Martinez

a28

approached the kitchen area, Jonathan entered the kitchen through the back door.

Jonathan testified that when he saw Martinez, Martinez was pointing the shotgun at

his face. Michael also testified that he looked through the blinds from the back patio

and saw Martinez pointing the shotgun at Jonathan’s face. Martinez denied that he

pointed the shotgun at Jonathan and testified that he instead asked Jonathan, “Where

is she?”

Jonathan immediately pushed the barrel of the shotgun away from his face,

and he and Martinez began fighting. They knocked over the kitchen table and fell to

the ground, causing the shotgun to fly away from them. Martinez ended up facedown on the ground with Jonathan on his back. Hearing the commotion inside,

Michael, Chase, and Cole ran into the kitchen to help Jonathan fight Martinez. While

face down on the ground with the others on top of him, Martinez reached down and

pulled the handgun out of his waistband. He testified that he tried holding the gun as

far away as possible to keep the others from taking it. Martinez disputed pulling the

trigger, but he had control of the gun when it fired three shots and jammed on a

fourth attempted firing. Jonathan managed to grab the gun from Martinez and empty

the bullets from the magazine. The fight was brief and ended after Jonathan obtained

control of the gun.

Unbeknownst to Jonathan, Michael, and Martinez, Cole was standing only a

few inches in front of the barrel of the gun when it fired, and one of the bullets had

a29

hit him. The bullet pierced Cole’s heart, both lungs, and several ribs. Cole

immediately quit fighting and left through the back door. Chase followed him.

Realizing Cole had been shot, Chase called 911. But Cole collapsed and died as

Chase stood over him, trying to remember Amy’s address to give to the dispatcher.

Amy overheard Chase’s 911 call while hiding in the vacant lot next door, and she

peeked over the fence and gave her address to the dispatcher.

Back inside, when the fight ended, Jonathan, Michael, and Martinez remained

in the kitchen with Alexis, who had come downstairs at some point during the fight.

Martinez picked up his shotgun off the floor and asked Jonathan to return his other

gun to him. Jonathan refused. Alexis left Amy’s house with Martinez, and they drove

to a nearby gas station. They waited there for several hours before returning

separately to Amy’s house to meet with law enforcement officers.

Michael also called 911 and reported the shooting. He then drove Jonathan

around the neighborhood looking for Amy, who they had not seen since the fight

with Martinez. Jonathan still had possession of Martinez’s gun, and he discarded the

gun in some bushes near the front gate of the neighborhood. While driving in the

neighborhood, Michael was stopped by the first officer responding to the 911 calls.

The officer briefly spoke to Jonathan and Michael before they all returned to Amy’s

house. Back at Amy’s house, Jonathan found that the front door was locked. He and

a30

Michael were standing on the front porch when they heard over the officer’s radio

that someone had been shot and killed at Amy’s address.

A few hours after the shooting, Martinez returned to Amy’s house with his

father, and Alexis returned to Amy’s house with her sister. Police officers separated

everyone who had been at Amy’s house during the shooting and interviewed them.

Officers conducted gunshot residue tests on Martinez, Jonathan, Michael, and Chase.

Police also recovered Martinez’s handgun and shotgun.

Martinez was indicted for the first-degree felony offense of murder based on

three theories: (1) he intentionally or knowingly caused Cole’s death by shooting

him with a firearm; (2) he intentionally caused serious bodily injury and committed

an act clearly dangerous to human life by shooting Cole with a firearm causing

Cole’s death; and (3) he committed the felony offense of aggravated assault with a

deadly weapon by threatening Jonathan, Michael, Chase, Cole, and Amy with

imminent bodily injury while using or exhibiting a deadly weapon, and while doing

so, he committed or attempted to commit an act clearly dangerous to human life by

discharging a firearm causing Cole’s death. See TEX. PENAL CODE § 19.02(b)(1)–

(3), (c); see also id. § 22.02(a)(2) (aggravated assault).

Numerous witnesses testified at trial, including Amy, Alexis, Jonathan,

Michael, and Chase. Law enforcement officers who responded to the 911 calls and

investigated the shooting also testified. Martinez testified in his defense.

a31

Alexis testified that she believed Jonathan had sexually assaulted her during

the party. Amy testified, however, that Jonathan could not have done so because he

was downstairs with her and the others when Alexis alleged she was sexually

assaulted. Martinez twice requested that the trial court permit him to impeach Amy’s

testimony by introducing evidence that Amy knew Jonathan had “inappropriately

touched” two other women in the past. The trial court denied both requests.

On the final day of trial, the trial court held a hearing on the jury charge.

Neither party objected to the charge. After deliberating, the jury found Martinez

guilty of murder. The trial court sentenced him to twelve years’ confinement. This

appeal followed.

Jury Charge

In his first issue, Martinez argues that the jury charge erroneously included an

instruction on Penal Code section 46.02, which violated his right to carry a firearm

in public under the Second and Fourteenth Amendments.

Standard of Review and Governing Law

The 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. The purpose of

the jury charge is to inform the jury of the applicable law and guide the jury in

applying it to the case. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.

2007) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)).

a32

We review complaints of jury charge error using a two-step process. Alcoser

v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). First, we determine whether

the charge is erroneous. Id. If so, then we must decide whether the error caused the

defendant harm. Id. When, as here, the defendant did not object to the jury charge in

the trial court, the defendant must show “egregious harm” to obtain a reversal. Id.

The Second Amendment provides, “A well regulated Militia, being necessary

to the security of a free State, the right of the people to keep and bear Arms, shall

not be infringed.” U.S. CONST. amend II. The United States Supreme Court has

construed the Second Amendment, along with the Fourteenth Amendment, to

“protect an individual’s right to carry a handgun for self-defense outside the home.”

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 10 (2022).

In this case, the challenged instruction appeared in the self-defense portion of

the jury charge. The Texas Penal Code authorizes the use of self-defense. With

exceptions, “a person is justified in using force against another when and to the

degree the actor reasonably believes the force is immediately necessary to protect

the actor against the other’s use or attempted use of unlawful force.” TEX. PENAL

CODE § 9.31(a). A person is justified in using deadly force against another when the

actor would be justified in using force under section 9.31 and “when and to the

degree the actor reasonably believes the deadly force is immediately necessary”

either “to protect the actor against the other’s use or attempted use of unlawful

a33

deadly force” or “to prevent the other’s imminent commission” of several

enumerated offenses, including sexual assault. Id. § 9.32(a).

A person is not justified in using force under several circumstances, including

“in response to verbal provocation alone” or “if the actor provoked the other’s use

or attempted use of unlawful force . . . .”5 Id. § 9.31(b)(1), (4). Additionally, use of

force is not justified “if the actor sought an explanation from or discussion with the

other person concerning the actor’s differences with the other person while the actor

was . . . carrying a weapon in violation of Section 46.02[.]” Id. § 9.31(b)(5)(A). A

person violates Penal Code section 46.02 if the person intentionally, knowingly, or

recklessly carries a handgun and the person is not on the person’s property or inside

of or directly en route to the person’s vehicle or watercraft.6 Id. § 46.02(a).

Even where the actor provoked the other’s use or attempted use of unlawful force,

the actor’s use of force is justified if “the actor abandons the encounter, or clearly

communicates to the other his intent to do so reasonably believing he cannot safely

abandon the encounter,” and the other “continues or attempts to use unlawful force

against the actor[.]” Id. § 9.31(b)(4).

In September 2021—after the incident made the basis of this criminal proceeding—

the Legislature amended section 46.02(a) to apply only to a person who was younger

than 21 years of age or who was previously convicted of certain offenses at the time

of the charged offense. Act of May 24, 2021, 87th Leg., R.S., ch. 809, § 22, sec.

46.02(a), 2021 Tex. Gen. Laws 1960, 1967 (current version at TEX. PENAL CODE

§ 46.02(a)). The version of section 46.02(a) in effect at the time of the underlying

offense did not include either of these provisions. See Act of May 24, 2017, 85th

Leg., R.S., ch. 1049, § 4, sec. 46.02, 2017 Tex. Gen. Laws 4106, 4107–08. Unless

otherwise noted, citations in this opinion to section 46.02(a) are to the version in

effect at the time of the offense.

a34

Analysis

The self-defense instructions in the jury charge began by stating when a

person is justified in using force or deadly force in self-defense. See id. §§ 9.31(a),

9.32(a). This portion of the charge also provided that self-defense does not apply in

response to verbal provocation alone. See id. § 9.31(b)(1). Following these

instructions, the charge provided the following “qualification on the law of selfdefense” under section 9.31(b)(5):

You are further instructed, as a qualification on the law of self-defense,

that the use of force by a defendant against another is not justified if the

defendant sought an explanation from or discussion with the other

person concerning the defendant’s differences with the other person

while the defendant was carrying a weapon in violation of Penal Code

Section 46.02.

A person violates Section 46.02 of the Penal Code if the person

intentionally, knowingly, or recklessly carries on or about his or her

person a handgun, illegal knife, or club if the person is not:

on the person’s own premises or premises under the person’s

control; or

inside of or directly enroute to a motor vehicle or watercraft that

is owned by the person or under the person’s control.

****

Now therefore, if you find and believe from the evidence beyond a

reasonable doubt that the force, if any, used by the defendant against

Cole Harrell or others acting with him, was at a time when the

defendant was seeking an explanation from or a discussion with Cole

Harrell or others acting with him, concerning the defendant’s

differences with Cole Harrell or others acting with him, but at that time

the defendant was unlawfully carrying a handgun in violation of Penal

Code Section 46.02, then you will find against the defendant on the

issue of self-defense.

a35

See id. § 9.31(b)(5). On appeal, Martinez does not challenge the constitutionality of

section 9.31(b)(5) or its inclusion in the jury charge. Rather, he challenges only the

constitutionality of section 46.02(a). To support this argument, Martinez relies on

two opinions.

In New York State Rifle and Pistol Association, Inc. v. Bruen, the United States

Supreme Court struck down a New York law that required ordinary, law-abiding

residents to demonstrate “proper cause”—or “a special need for self-defense”—to

obtain a license to carry a handgun in public places. 597 U.S. at 11–12. The Court

held that this law violated the Second and Fourteenth Amendments, which “protect

an individual’s right to carry a handgun for self-defense outside the home.”7 Id. at

10.

Significantly, Bruen established a two-step test for courts to analyze Second

Amendment challenges. Id. at 17. First, “when the Second Amendment’s plain text

covers an individual’s conduct, the Constitution presumptively protects that

conduct.” Id. Second, the government bears the burden to justify a challenged

regulation by demonstrating that it “is consistent with this Nation’s historical

The Court explained that the Fourteenth Amendment applied to the New York law

because “New York is bound to respect the right to keep and bear arms because of

the Fourteenth Amendment, not the Second,” but “individual rights enumerated in

the Bill of Rights and made applicable against the States through the Fourteenth

Amendment have the same scope as against the Federal Government.” N.Y. State

Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 37 (2022) (citations omitted).

a36

tradition of firearm regulation.” Id. The Court acknowledged that this “[h]istorical

analysis can be difficult” because “it sometimes requires resolving threshold

questions, and making nuanced judgments about which evidence to consult and how

to interpret it.” Id. at 25 (quoting McDonald v. City of Chicago, 561 U.S. 742, 803–

04 (2010) (Scalia, J., concurring)). Indeed, the Court considered a vast amount of

“historical evidence” relied upon by Bruen, the Superintendent of State Police, to

justify the proper-cause requirement in New York’s handgun licensing law. See id.

at 34, 38–70 (considering State’s evidence containing “a variety of historical sources

from the late 1200s to the early 1900s”). Ultimately, the Court concluded that Bruen

did not meet the State’s “burden to identify an American tradition justifying the

State’s proper-cause requirement” in the handgun licensing statute. Id. at 70.

A few months after Bruen, the Northern District of Texas issued an opinion

concerning a “challenge [to] the constitutionality of Texas’s statutory scheme that

prohibits law-abiding 18-to-20-year-olds from carrying handguns for self-defense

outside the home.” Firearms Pol’y Coal., Inc. v. McCraw, 623 F. Supp. 3d 740, 745

(N.D. Tex. 2022). The two plaintiffs, who were between the ages of 18 and 20,

wanted to carry a handgun while traveling between home, work, and school, but they

were unable to do so because carrying a handgun under these circumstances violated

Texas law. Id. at 745, 746. When the plaintiffs filed suit, Penal Code section 46.02

applied only to individuals younger than age 21, and it prohibited such individuals

a37

from carrying a handgun unless they were on their property or inside or directly en

route to their motor vehicle or watercraft. Id. at 745 (citing current version of TEX.

PENAL CODE § 46.02(a)). This provision did not apply to individuals licensed to

carry a handgun, but, with few exceptions not applicable to the plaintiffs, a separate

statute prohibited individuals under age 21 from obtaining a license to carry a

handgun. Id. (citing TEX. GOV’T CODE § 411.172(a)(2), (g)–(i)). Thus, the plaintiffs

sued the Director of the Department of Public Safety seeking “to enjoin only

provisions [of Texas law] that prohibit them from applying for a license to carry a

handgun.” Id. at 753. The plaintiffs then filed a motion for summary judgment on

the ground that the statutory licensing scheme violated their Second Amendment

right to carry a handgun. Id. at 745, 753.

Applying Bruen’s two-part test for Second Amendment challenges, the

McCraw court first concluded that the plain text of the Second Amendment covered

the proposed course of conduct—that is, permitting “law-abiding 18-to-20-year-olds

to carry a handgun for self-defense outside the home.” Id. at 751. Turning to the

second step, the court concluded that the State did not meet its burden to justify the

licensing scheme as “consistent with this Nation’s historical tradition of firearm

regulation.” Id. at 754–56. In attempting to meet this burden, the State relied solely

on a Fifth Circuit opinion deciding a Second Amendment challenge under a preBruen test. See id. (“Texas argues that the ‘thorough and compelling’ historical

a38

analysis in NRA satisfies this burden.”) (citing Nat’l Rifle Ass’n of Am., Inc. v.

Bureau of Alcohol, Tobacco, Firearms, & Explosives (“NRA”), 700 F.3d 185 (5th

Cir. 2012), abrogated by Bruen, 597 U.S. at 17, 19 n.4). The McCraw court

disagreed with the State’s reliance on NRA, criticizing the opinion for “fail[ing] to

conduct a tailored historical analysis.” Id. at 754. Because “Texas failed to produce

sufficient historical analogs from the Founding Era and the Reconstruction Era to

support its statutory” handgun licensing scheme, the court “enjoin[ed] the Texas

laws to the extent they prohibit law-abiding 18-to-20-year-olds from applying for a

license to carry a handgun.” Id. at 756.

We find Bruen and McCraw distinguishable from the circumstances presented

here. Both cases concerned constitutional challenges to licensing statutes; they were

not criminal proceedings. More importantly, neither case addressed the issue

presented here: whether a state can preclude a defendant charged with murder from

asserting the defense of self-defense when the defendant sought an explanation or

discussion about differences while carrying a firearm. Bruen did not mention or

address the constitutionality of Texas Penal Code section 46.02.

McCraw did address section 46.02(a) and held that “[t]o the extent that

Texas’s statutory scheme, [including section 46.02(a)], prohibits law-abiding 18-to20-year-olds from carrying handguns for self-defense outside the home based solely

on their age, this statutory scheme violates the Second Amendment” and Fourteenth

a39

Amendment. Id. at 758. But McCraw only addressed section 46.02(a) in the context

of “Texas’s statutory scheme” for handgun licensing. See id. McCraw did not

address whether section 46.02(a), as applied in the context of defenses to a murder

charge, would likewise violate the Second Amendment. The licensing context in

which McCraw was decided distinguishes it from this criminal case.

Furthermore, McCraw based its holding solely on the State’s failure to meet

its burden to produce evidence justifying the law prohibiting certain individuals from

obtaining a license to carry a handgun. Id. at 756 (concluding that “Texas failed to

produce sufficient historical analogs from the Founding Era and the Reconstruction

Era to support its statutory prohibition” on allowing individuals under age 21 from

applying for handgun license). In this case, the State was deprived of an opportunity

to meet its burden under Bruen because Martinez failed to raise a Second

Amendment challenge in the trial court. See 597 U.S. at 17. Consequently, this Court

lacks a sufficient record from which we can undertake our own Bruen analysis of

Martinez’s claim of jury charge error. See, e.g., id. at 17, 38–70.

We therefore conclude that Martinez has not established that his Second or

Fourteenth Amendment rights were violated by inclusion of instructions referencing

section 46.02(a) in the self-defense portion of the jury charge. We hold that Martinez

has not established on the record before us that the jury charge contained error. See

Alcoser, 663 S.W.3d at 165. We overrule Martinez’s first issue.

a40

Ineffective Assistance of Counsel

In his second issue, Martinez contends that his trial counsel provided

ineffective assistance by failing to object to inclusion of section 46.02 in the selfdefense instructions in the jury charge.

Standard of Review and Governing Law

The Sixth Amendment of the United States Constitution guarantees a criminal

defendant the right to have the effective assistance of counsel for his defense. U.S.

CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 686 (1984) (“[T]he right

to counsel is the right to the effective assistance of counsel.”) (quoting McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970)). To prevail on a claim of ineffective

assistance of counsel, a defendant must prove that (1) counsel was deficient; and

(2) the deficiency prejudiced the defense. Hart v. State, 667 S.W.3d 774, 781 (Tex.

Crim. App. 2023) (citing Strickland, 466 U.S. at 687); Dryer v. State, 674 S.W.3d

635, 646 (Tex. App.—Houston [1st Dist.] 2023, pet. ref’d). The defendant bears the

burden to prove both prongs of ineffective assistance by a preponderance of the

evidence. Dryer, 674 S.W.3d at 646. If the defendant does not meet his burden to

prove both prongs, we cannot sustain the claim of ineffective assistance of counsel.

Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); Dryer, 674 S.W.3d at

646. “The purpose of this two-pronged test is to assess whether counsel’s conduct

so undermined the proper functioning of the adversarial process that the trial cannot

a41

be said to have produced a reliable result.” Villa v. State, 417 S.W.3d 455, 463 (Tex.

Crim. App. 2013); Dryer, 674 S.W.3d at 646.

Under the first prong, defense counsel’s performance is deficient if it falls

below an objective standard of reasonableness. Hart, 667 S.W.3d at 781; Dryer, 674

S.W.3d at 646. We are highly deferential to counsel’s performance. Dryer, 674

S.W.3d at 646. A “strong presumption” exists that “counsel’s conduct falls within

the wide range of reasonable professional assistance,” and “the defendant must

overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” Hart, 667 S.W.3d at 781 (quoting

Strickland, 466 U.S. at 689) (internal quotations omitted). Reviewing courts should

consider the reasonableness of counsel’s actions at the time they occurred rather than

viewing the actions with the benefit of hindsight. Id. at 782.

Under the second prong—prejudice to the defense—we consider whether a

reasonable probability exists that but for counsel’s deficient performance, the trial

outcome would have been different. Dryer, 674 S.W.3d at 647. A reasonable

probability is one that undermines our confidence in the outcome of trial. Id. “The

likelihood of a different result must be substantial, not just conceivable.” Harrington

v. Richter, 562 U.S. 86, 112 (2011).

Ineffective assistance claims “must be firmly rooted in the record.” Hart, 667

S.W.3d at 782; Dryer, 674 S.W.3d at 647. “Under most circumstances, the record

a42

on direct appeal will not be sufficient to show that counsel’s representation was so

deficient and so lacking in tactical or strategic decision-making as to overcome the

strong presumption that counsel’s conduct was reasonable and professional.” Hart,

667 S.W.3d at 782 (quoting Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim.

App. 2004)); Dryer, 674 S.W.3d at 647 (“It is rare that the trial record, standing

alone, is sufficient to show deficient performance by counsel.”). Whether counsel’s

decisions were reasonable often depends on facts that do not appear in the record.

Dryer, 674 S.W.3d at 647. Thus, counsel ordinarily should be afforded an

opportunity to explain his conduct before we will find that his performance was

deficient. Hart, 667 S.W.3d at 782; Dryer, 674 S.W.3d at 647. When no such

opportunity has been afforded, we cannot find counsel’s performance deficient

unless the challenged conduct was so outrageous that no competent lawyer would

have engaged in it. Hart, 667 S.W.3d at 782; Dryer, 674 S.W.3d at 647. We

generally will assume that counsel had a reasonable strategic motive if any

reasonable trial strategy can be imagined. Dryer, 674 S.W.3d at 647.

A defendant is not entitled to errorless representation. Id. We therefore

consider the totality of the representation when reviewing an ineffective assistance

claim. Id. A single error will rarely prove that counsel was ineffective. Id. To show

counsel was ineffective based on a single error, the error must have been “egregious

and had a seriously deleterious impact on counsel’s representation as a whole.” Id.

a43

Analysis

Martinez’s arguments concerning his second issue are substantially similar to

those concerning his first issue. Martinez argues that his trial counsel had a duty to

identify potential legal issues and object accordingly. He argues that had counsel

objected to the jury charge on the ground that it included an instruction on section

46.02, the trial court would have modified the charge “in such a way that the jury

could have found (and likely would have found) that Martinez was justified in using

whatever force he used on December 17, 2017, because he believed that force was

reasonably necessary to prevent imminent harm to either himself or Alexis.”

Legal counsel “must be sufficiently abreast of developments in criminal law

aspects implicated in the case at hand,” and “[i]gnorance of well-defined general

laws, statutes and legal propositions is not excusable and . . . may lead to a finding

of constitutionally deficient assistance of counsel.” Ex parte Lane, 670 S.W.3d 662,

671 (Tex. Crim. App. 2023) (quotations omitted). However, to be deficient, “the

specific legal proposition” which counsel failed to assert must be “well considered

and clearly defined.” Id. (quotation omitted). Thus, in reviewing trial counsel’s

performance, we consider “the state of the law in effect during the time of trial,” and

“we will not find counsel ineffective where the claimed error is based upon unsettled

law.” Id. (quotation omitted).

a44

As in his first issue, Martinez relies on Bruen and McCraw to support his

argument that his trial counsel should have known that section 46.02(a) was

unconstitutional. Martinez correctly notes that both opinions issued prior to trial in

this case and before the charge was read to the jury. But as discussed above, neither

Bruen nor McCraw is dispositive on the issue presented here: whether the State may

preclude the defense of self-defense in a murder prosecution when the defendant

sought an explanation or discussion about differences while carrying a firearm.

Thus, on the record and briefs before us, “the specific legal proposition” which

Martinez contends counsel failed to assert was not “well considered and clearly

defined.” See id. (quotation omitted); Ex parte Salinas, 664 S.W.3d 894, 909 (Tex.

Crim. App. 2022) (“[W]e do not ordinarily declare counsel to have performed

deficiently for failing to invoke unsettled legal principles,” which would require

courts to “indulge in the kind of retrospective evaluation that Strickland forbids.”);

see also Hart, 667 S.W.3d at 782 (stating that ineffective assistance claims “must be

firmly rooted in the record”).

Moreover, counsel was not provided an opportunity to explain his challenged

conduct, and we cannot conclude that counsel’s failure to object to the charge’s

inclusion of section 46.02 was so outrageous that no competent lawyer would have

failed to so object. See Hart, 667 S.W.3d at 782; Dryer, 674 S.W.3d at 647.

Therefore, Martinez has not met his burden to establish that his counsel was

a45

deficient. We hold that on the record before us, Martinez has not established that his

trial counsel was ineffective. We overrule Martinez’s second issue.

Sufficiency of the Evidence

In his third issue, Martinez contends that the evidence admitted at trial was

legally insufficient to support the jury’s findings that he committed the offense of

murder and that he was not justified in using force in self-defense or defense of a

third person.

Standard of Review and Governing Law

The Due Process Clause of the Fourteenth Amendment requires a criminal

conviction to be supported by legally sufficient evidence. Braughton v. State, 569

S.W.3d 592, 607 (Tex. Crim. App. 2018) (citing Jackson v. Virginia, 443 U.S. 307,

315–16 (1979), and Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010)

(Cochran, J., concurring)). Evidence is legally sufficient to support a conviction if

“any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Dunham v. State, 666 S.W.3d 477, 482 (Tex. Crim.

App. 2023). In conducting a legal sufficiency review, we consider the evidence in

the light most favorable to the verdict without reweighing the evidence, substituting

our judgment for that of the jury, or acting as a thirteenth juror. McPherson v. State,

677 S.W.3d 663, 664 (Tex. Crim. App. 2023); Dunham, 666 S.W.3d at 482.

a46

“This familiar standard gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” McPherson, 677 S.W.3d at

664 (quoting Jackson, 443 U.S. at 319). The jury is the sole judge of the credibility

and weight to be attached to witnesses’ testimony. Dunham, 666 S.W.3d at 482.

“The jury may reasonably infer facts from the evidence presented, credit the

witnesses it chooses, disbelieve any or all the evidence or testimony proffered, and

weigh the evidence as it sees fit.” Mottin v. State, 634 S.W.3d 761, 765 (Tex. App.—

Houston [1st Dist.] 2020, pet. ref’d). When the record supports conflicting

inferences, we presume that the jury resolved conflicts in favor of the verdict, and

we defer to that determination. Dunham, 666 S.W.3d at 482 (quotation omitted).

Each fact need not point directly and independently to the defendant’s guilt as long

as the cumulative force of all the incriminating circumstances is sufficient to support

the conviction. Id. (quotation omitted). We treat direct evidence and circumstantial

evidence equally, and circumstantial evidence alone can be sufficient to establish

guilt. Id. (quotation omitted).

When, as here, a defendant raises self-defense or defense of a third person,

the defendant bears the burden to produce evidence supporting the defense, but the

State bears the burden of persuasion to disprove the raised issues. Braughton, 569

S.W.3d at 608 (“The State’s burden of persuasion ‘is not one that requires the

a47

production of evidence; rather it requires only that the State prove its case beyond a

reasonable doubt.’”) (quotation omitted). Thus, the State must both prove the

essential elements of the offense beyond a reasonable doubt and persuade the jury

that the defendant did not act in self-defense or defense of a third person beyond a

reasonable doubt. Id. at 609 (quotation omitted); Rankin v. State, 617 S.W.3d 169,

181–82 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d). The evidence is legally

insufficient if, when viewed in the light most favorable to the verdict, either (1) the

record contains no evidence or a mere “modicum” of evidence probative of an

element of the offense, or (2) the evidence conclusively establishes a reasonable

doubt. Rankin, 617 S.W.3d at 182.

Analysis

Like the indictment, the jury charge provided three theories under which the

jury could convict Martinez of the offense of murder: (1) he intentionally or

knowingly caused Cole’s death by shooting him with a deadly weapon; (2) he

intentionally caused serious bodily injury and intentionally or knowingly committed

an act clearly dangerous to human life by shooting Cole with a deadly weapon

causing Cole’s death; or (3) he committed or attempted to commit the felony offense

of aggravated assault with a deadly weapon by intentionally or knowingly

threatening Jonathan, Chase, Cole, Micheal, and Amy with imminent bodily injury

while using or exhibiting a deadly weapon, and while committing or attempting to

a48

commit this felony offense, he committed or attempted to commit an act clearly

dangerous to human life by discharging a deadly weapon causing Cole’s death.8 See

TEX. PENAL CODE § 19.02(b)(1)–(3).

Under the first two theories, Martinez argues that the evidence was

insufficient to support the jury’s findings that he intentionally or knowingly fired his

gun at Jonathan, Chase, Cole, or Michael. Under the third theory, Martinez argues

that the evidence was insufficient to show that he committed the underlying felony

of aggravated assault. Although Martinez concedes that aiming a deadly weapon at

someone is sufficient evidence of a threat to sustain an aggravated assault

conviction, he argues that the State presented only a “modicum of evidence” that he

aimed his shotgun at anyone. Our consideration of Martinez’s argument concerning

the third theory in the charge is dispositive of the issue whether the evidence was

legally sufficient to support a finding that Martinez committed the offense of murder.

See TEX. R. APP. P. 47.1.

A person commits the first-degree felony offense of murder if the person

“commits or attempts to commit a felony, other than manslaughter,” and “in the

course of and in furtherance of the commission or attempt, or in immediate flight

from the commission or attempt, the person commits or attempts to commit an act

The charge also instructed the jury on the lesser-included offense of aggravated

assault based on the use or exhibition of a deadly weapon during commission of an

assault. See TEX. PENAL CODE § 22.02(a)(2).

a49

clearly dangerous to human life that causes the death of an individual.” TEX. PENAL

CODE § 19.02(b)(3). This provision is commonly referred to as the felony murder

statute. See Fraser v. State, 583 S.W.3d 564, 565 & n.1 (Tex. Crim. App. 2019);

Gomez v. State, 499 S.W.3d 558, 562 (Tex. App.—Houston [1st Dist.] 2016, pet.

ref’d). Under this provision, there is “no mens rea for the element of ‘commit[ting]

or attempt[ing] to commit an act clearly dangerous to human life that causes the

death of an individual.’” Gomez, 499 S.W.3d at 562 (quoting TEX. PENAL CODE

§ 19.02(b)(3)).

Here, the underlying felony in the felony murder charge was aggravated

assault. See TEX. PENAL CODE § 19.02(b)(3). A person commits the offense of

aggravated assault if he commits an assault and uses or exhibits a deadly weapon

during the commission of the assault.9 Id. § 22.02(a)(2). A person commits an assault

if he intentionally or knowingly threatens another with imminent bodily injury. Id.

§ 22.01(a)(2). The instructions in the jury charge tracked these statutory definitions.

As Martinez concedes, this Court has previously held that “[a]iming a deadly

weapon at a supposed victim is sufficient evidence of a threat to sustain an

aggravated assault conviction.” Ward v. State, 113 S.W.3d 518, 521 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d) (citing Anderson v. State, 11 S.W.3d 369, 375–

Martinez does not dispute that a firearm is a deadly weapon. See id. § 1.07(17)

(defining “deadly weapon” to include “a firearm”).

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76 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d), and Rodriguez v. State, 955

S.W.2d 171, 174 (Tex. App.—Amarillo 1997, no pet.)). Martinez argues, however,

that there was insufficient evidence that he aimed a gun at anybody. We disagree.

As Martinez approached Amy’s house, he was armed with a shotgun and a

handgun. He first encountered Amy standing at the front door. Amy testified that he

was “armed” with the shotgun “in his hands” and “across his chest.” He “looked

aggressive” and “angry . . . like he was in a rage.” She ran away from Martinez as

he entered the house and walked towards the kitchen. Martinez then encountered

Jonathan, who testified that when he first saw Martinez in the house, Martinez was

holding the shotgun and Jonathan was “[i]n front of it” and “[c]lose enough to grab

it.” Jonathan grabbed the barrel of the shotgun and “pushed it away from [his] face.”

On cross-examination, Jonathan testified, “I just remember the shotgun in my face

and then I don’t know what happened to it . . . .” Michael, who was on the back patio

adjacent to the kitchen during this time, testified that he saw “a guy coming in

pointing a gun at [Jonathan], inside.” Michael saw Martinez point the shotgun

“[s]traight, directly at [Jonathan].” Martinez testified that he did not aim the shotgun

at Jonathan. Immediately after encountering each other in the kitchen, a fight ensued

between Jonathan and Martinez, and Michael, Chase, and Cole soon joined the fight.

While fighting, Martinez had control of the handgun when it fired three bullets, one

of which struck and killed Cole.

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The jury reasonably could have credited Jonathan’s and Michael’s testimony

and other reasonable inferences—and disbelieved Martinez’s testimony—in finding

that Martinez aimed the shotgun at Jonathan when they first encountered each other

in the kitchen, prior to any physical altercation between the two. See Dunham, 666

S.W.3d at 482; Mottin, 634 S.W.3d at 765 (“The jury may reasonably infer facts

from the evidence presented, credit the witnesses it chooses, disbelieve any or all the

evidence or testimony proffered, and weigh the evidence as it sees fit.”). As Martinez

concedes, evidence that he aimed a deadly weapon at Jonathan is sufficient to sustain

a conviction for aggravated assault, the offense underlying the felony murder

offense. See Ward, 113 S.W.3d at 521. We disagree with Martinez that Jonathan’s

and Michael’s testimony constituted only a mere “modicum” of evidence that

Martinez aimed the shotgun at anyone. See Rankin, 617 S.W.3d at 182. Furthermore,

the evidence showed that Martinez had control of the handgun when it fired three

shots, one of which killed Cole. See TEX. PENAL CODE § 19.02(b)(3); Gomez, 499

S.W.3d at 562 (stating that felony murder statute has no mens rea requirement for

element of committing or attempting to commit act clearly dangerous to human life

that causes death of individual). Considering the evidence in the light most favorable

to the verdict, we conclude that any rational jury could have found the essential

elements of the felony murder offense beyond a reasonable doubt. See Dunham, 666

S.W.3d at 482.

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Martinez next argues that the evidence was legally insufficient to find against

him on the defensive issues of self-defense or defense of a third person. Specifically,

Martinez contends that he went to pick up Alexis after she reported that someone

had tried to sexually assault her, and he feared for his and Alexis’s safety when he

went to Amy’s house.

“[D]eadly force used in self-defense or in defense of another is a defense to

prosecution for murder if that use of force is ‘justified.’” Braughton, 569 S.W.3d at

606 (quoting TEX. PENAL CODE § 9.02 and citing id. §§ 9.31–.33). Under the Penal

Code, “a person is justified in using force against another when and to the degree the

actor reasonably believes the force is immediately necessary to protect the actor

against the other’s use or attempted use of unlawful force.” TEX. PENAL CODE

§ 9.31(a). The person is justified in using deadly force if the actor would be justified

in using force under section 9.31 and when and to the degree the actor reasonably

believes the deadly force is immediately necessary to defend against the other’s use

or attempted use of unlawful deadly force or to prevent the other’s imminent

commission of certain offenses, including sexual assault. Id. § 9.32(a). A person is

justified in using force or deadly force against another to protect a third person if the

actor would be justified in using force under section 9.31 or deadly force under

section 9.32 and “the actor reasonably believes that his intervention is immediately

necessary to protect the third person.” Id. § 9.33. A “reasonable belief” is “a belief

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that would be held by an ordinary and prudent man in the same circumstances as the

actor.” Id. § 1.07(a)(42).

The Penal Code lists several exceptions to self-defense and defense of others.

For example, a person is not justified in using force in response to verbal provocation

alone or if the actor provoked the other person’s use or attempted use of unlawful

force. Id. § 9.31(b)(1), (4); see id. § 9.33 (stating that person is justified in using

force to protect third person if, among other things, actor reasonably believes actor

would be justified under section 9.31 or 9.32 in using force or deadly force);

Braughton, 569 S.W.3d at 606.

At trial, Martinez testified that Alexis called him from Amy’s house in the

middle of the night on FaceTime. He could see Alexis was crying and hysterical,

and she asked him to pick her up because “[s]he had been assaulted, sexually

assaulted.” Amy then took the phone from Alexis and left the room. Amy spoke to

Martinez and gave him the address to her house. Martinez got dressed and grabbed

his handgun and shotgun. Martinez testified that he was scared for himself and

Alexis as he drove to Amy’s house. When he arrived at the front gate to Amy’s

neighborhood, Martinez called Alexis’s phone, and Amy answered and gave

Martinez the code to enter the gate. Martinez went through the gate and parked in

front of Amy’s house.

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Martinez approached Amy’s house with the handgun hidden in his waistband

and the shotgun in a sling over his shoulder. Amy saw Martinez at the front door

with the shotgun across his chest, but she did not say anything. Instead, she ran away

from him. Martinez walked into the house and towards the kitchen area, where he

pointed a shotgun at Jonathan upon encountering him. Two witnesses testified that

Martinez pointed the shotgun at Jonathan. Jonathan and Martinez fought, turning

over the kitchen table. They went to the ground, causing the shotgun to fly away

from them. Michael, Chase, and Cole entered the kitchen and assisted Jonathan in

fighting Martinez. Martinez believed someone was reaching for the gun in his

waistband, so he “decided to just take it out and reach as far as [he] could

with . . . [his] right hand” to prevent the others from taking it from him. The gun

fired three times and jammed on the fourth attempted firing. Martinez denied that he

pulled the trigger, although he acknowledged that Cole was shot and killed with a

bullet from his gun. The fight ended when Jonathan took the gun from Martinez and

emptied the bullets. Martinez did not see Alexis until the fight ended.

These facts indicate that Martinez did not have a reasonable belief that force

or deadly force was immediately necessary to protect himself or Alexis. See TEX.

PENAL CODE §§ 9.31(a), 9.33. Martinez would be justified in using force to protect

Alexis if he would be justified in using force to defend himself against the unlawful

force or deadly force that he reasonably believed to be threatening Alexis and if he

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reasonably believed that his intervention was immediately necessary to protect

Alexis. See id. § 9.33; see also id. § 9.31(a). Although Alexis told Martinez over the

phone that she had been sexually assaulted, Martinez did not see or speak to Alexis

again until after the fight at Amy’s house and after Cole had been shot. No evidence

indicated that Martinez had a reasonable belief that Alexis was in imminent danger

or under any threat of harm while he was at Amy’s house prior to the shooting. See

id. § 9.33. We conclude that any rational jury could have found against Martinez on

the issue of defense of a third person beyond a reasonable doubt. See Dunham, 666

S.W.3d at 482.

Similarly, any rational jury could have found against Martinez on the issue of

self-defense beyond a reasonable doubt. See id. There is no evidence that anyone

used or attempted to use force against Martinez before he aimed the shotgun at

Jonathan. See TEX. PENAL CODE § 9.31(a). Rather, Amy retreated from Martinez

when she saw him armed with a shotgun, and Martinez caught Jonathan unaware in

the kitchen before aiming a shotgun at him, which caused the fight between them.

As stated above, aiming the shotgun at Jonathan constituted an aggravated assault,

and Jonathan was justified in using force to defend himself against Martinez’s use

or attempted use of unlawful force. See id.; Ward, 113 S.W.3d at 521. During the

fight—while Martinez had control of the gun—Martinez fired three shots (and a

fourth that misfired). One of these bullets hit Cole, who was standing only inches in

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front of the barrel. Thus, the evidence establishes that Martinez provoked the actions

of Jonathan, Michael, Chase, and Cole by entering a strange house armed with two

guns and aiming a shotgun at Jonathan without any apparent justification to do so.

See TEX. PENAL CODE § 9.31(b)(4) (providing that use of force against another is not

justified if actor provoked other’s use or attempted use of unlawful force). We

conclude that any rational trier of fact could have found against Martinez on the selfdefense issue beyond a reasonable doubt. See Dunham, 666 S.W.3d at 482. We

therefore hold that the evidence was legally sufficient to support the jury’s guilty

verdict. We overrule Martinez’s third issue.

Evidentiary Issue

In his fourth issue, Martinez contends that the trial court abused its discretion

by overruling his request to admit certain impeachment evidence.

Standard of Review and Governing Law

We review a trial court’s ruling on the admissibility of evidence for an abuse

of discretion. Colone v. State, 573 S.W.3d 249, 263–64 (Tex. Crim. App. 2019);

Gutierrez v. State, 668 S.W.3d 46, 53 (Tex. App.—Houston [1st Dist.] 2022, pet.

ref’d). A trial court abuses its discretion when it acts without reference to any guiding

rules and principles or acts arbitrarily or unreasonably. Gutierrez, 668 S.W.3d at 53

(quoting Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019)). We will

uphold the trial court’s ruling if it is reasonably supported by the record and correct

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under any theory of law applicable to the case. Id.; see McDonnell v. State, 674

S.W.3d 694, 701 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (stating that

appellate court will not reverse trial court’s ruling on admissibility of evidence if

ruling is within zone of reasonable disagreement).

Generally, relevant evidence is admissible. TEX. R. EVID. 402. Evidence is

relevant if “it has any tendency to make a fact more or less probable than it would

be without the evidence” and “the fact is of consequence in determining the action.”

TEX. R. EVID. 401. Any party may attack a witness’s credibility by opinion testimony

about the witness’s character. TEX. R. EVID. 607, 608(a). However, “a party may not

inquire into or offer extrinsic evidence to prove specific instances of the witness’s

conduct in order to attack or support the witness’s character for truthfulness.” TEX.

R. EVID. 608(b).

Analysis

At trial, Alexis testified that she believed Jonathan had sexually assaulted her

during the party at Amy’s house. Jonathan denied the accusation. Amy testified that

Jonathan was downstairs with her and the others and that he therefore could not have

been upstairs when the sexual assault allegedly occurred. Martinez argues that the

State portrayed Alexis as lying about the sexual assault accusation, and he therefore

sought to impeach Amy’s testimony by introducing evidence that Amy knew about

two prior instances in which Jonathan “inappropriately touched” other women,

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which would show that Amy was lying about not believing Alexis’s accusation that

Jonathan had sexually assaulted her. Martinez argues that without an opportunity to

impeach Amy’s testimony, he was prevented from establishing that he acted in selfdefense or defense of Alexis.

The issue of the alleged sexual assault against Alexis has limited relevance to

the criminal proceeding against Martinez. That is, Alexis’s accusation explains why

Martinez appeared at Amy’s house and tends to support Martinez’s defensive theory

that he arrived with weapons to protect himself and Alexis. But whether Alexis’s

accusation was truthful is not particularly relevant in this case because the

uncontroverted evidence establishes that Martinez believed the accusation, which is

the reason he went to Amy’s house. See TEX. R. EVID. 401 (stating that evidence is

relevant if it tends to make fact of consequence more or less probable than it would

be without such evidence). The defenses of self-defense and defense of a third person

depend on whether Martinez reasonably believed that force or deadly force was

immediately necessary to protect himself or Alexis from another’s use or attempted

use of unlawful force or deadly force or to prevent the commission of a sexual

assault. See TEX. PENAL CODE §§ 9.31(a), 9.32(a), 9.33. Thus, in considering

Martinez’s reasonable belief when he entered Amy’s house, fought with Jonathan

and the other men, and ultimately shot and killed Cole, it is appropriate to consider

that Martinez believed Alexis’s sexual assault accusation, regardless of its veracity.

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Whether or not Amy lied about disbelieving Alexis’s accusation specifically directed

at Jonathan does not alter what Martinez believed when he went to Amy’s house.

Moreover, the evidence indicates that Amy’s belief about Jonathan not being

involved in the alleged sexual assault was based on her seeing him downstairs at the

party when the sexual assault allegedly occurred in an upstairs room. Even if the

unadmitted evidence showed that Amy knew Jonathan had previously

“inappropriately touched” two other women, that does not impeach her testimony

that she saw Jonathan downstairs at the party during the relevant time. We therefore

hold that the trial court did not abuse its discretion by overruling Martinez’s request

to impeach Amy’s testimony. We overrule Martinez’s fourth issue.

Conclusion

We affirm the judgment of conviction.

April L. Farris

Justice

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.