William Dale Carter v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00132-CR
__________________

WILLIAM DALE CARTER, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 411th District Court
San Jacinto County, Texas
Trial Cause No. CR13937
__________________________________________________________________

MEMORANDUM OPINION

William Dale Carter appeals his conviction for aggravated assault on a family

member. Tex. Penal Code Ann. § 22.02(b)(1). Carter was indicted for causing

serious bodily injury by shooting his brother-in-law, Daniel, in the chest with a

revolver.1 Carter complains on appeal that the prosecutor engaged in a course of

1
To protect the victim’s privacy, we use pseudonyms to refer to the victim and
his wife. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated
with fairness and with respect for the victim’s dignity and privacy throughout the
criminal justice process”).
1
conduct calculated to deny him a fair and impartial trial, that the trial court denied

his right to counsel by improperly restricting his closing argument, that the

prosecutor denied him a fair and impartial trial by injecting extraneous, unproven

offenses into the record, and that the trial court committed reversible error in the

guilt phase jury charge by not defining the offense as a result-oriented offense. We

affirm.

Background

Given Carter’s issues on appeal, we discuss only the testimony relevant to

Carter’s issues.

Brenda Walker

Brenda Walker is Carter’s sister and the victim’s wife. Brenda and Carter do

not get along. Because of past verbal interactions with her brother, Brenda’s attorney

advised her to record her interactions with Carter “in case any threats were made or

anything like that.” Brenda recorded part of the incident for which Carter was

indicted. Brenda testified she recorded the incident on her cell phone in her pocket

but did not know of any video recording of the incident. The trial court admitted the

audio recording at trial.

The property where the incident took place has been owned by Carter’s and

Brenda’s family for years. Brenda, Daniel and Carter live on the same tract of land

but have separate residences. Brenda denied the existence of an easement giving

2
Carter the right to use a road on her property to reach his house. Carter tried to get

Brenda to sign a document giving him an easement, but neither she nor her husband

signed anything granting Carter access. Brenda explained that just a few days before

the incident, the parties went to court and “[had that motion dismissed] so that we

could put a gate up…to stop whoever, anybody from coming through.”

Brenda placed a “no trespassing” sign on her property which she testified was

specifically for Carter. Brenda testified that Carter did not have the right to be on her

property when the incident occurred and that she and Daniel made it clear to Carter

that he had no right to be on their property.

On the morning of October 23, 2022, Brenda heard Carter’s truck in her

driveway. Carter went to the back of the property but came back through a pasture

gate and approached Brenda’s house. Brenda and Daniel walked out to the driveway

to speak to Carter. Brenda testified that she did not walk out to inflict any injury or

harm towards Carter. Neither Brenda nor Daniel had anything in their hands as they

approached Carter.

Daniel pointed to the “no trespassing” sign and asked Carter if he saw it.

Carter responded, “Do you see this, MF-er?” After Brenda heard Carter’s response,

she looked at Carter. She saw Carter with a gun, saw a flash, and heard the gun go

off. Brenda turned to Daniel, who had “a little spot on his shirt.” Daniel told Brenda

3
to “get down,” and Brenda and Daniel started running towards their house away

from Carter’s truck.

When the couple reached their house, Daniel told Brenda that he was shot in

the heart. Carter continued “to shoot at [Brenda and Daniel] as [they] were running

into the house. So [Daniel] got his shotgun and ran outside to shoot back.” Brenda

then called 911. The evidence at trial showed multiple rounds of shots were fired

into Brenda and Daniel’s house.

Brenda explained to the jury that there was tension regarding the disposition

of their parents’ assets and that Carter was not named as a beneficiary of their

parents’ will, whereas Brenda was. Brenda also explained there was tension with

Carter over his animals. Carter had a dog that was severely injured and appeared to

be suffering. Brenda texted Carter about the dog, but Carter was working and could

not tend to the dog, so Daniel shot the dog “to put it out of its misery.” Brenda denied

killing any of Carter’s other animals and livestock.

On cross-examination, Brenda agreed that the easement and ownership of the

family property was confusing, but that Carter does not need to use her driveway to

get to and from his house. After her husband was shot, Brenda described how Daniel

shot seven rounds at Carter’s truck. Daniel came into their house and talked to the

911 operator when a shot came from Carter’s house. Daniel told the 911 operator

4
that Carter was “shooting at us again, and he grabbed that Israeli shotgun and ran

out and started firing back.”

Brenda explained that when she approached the passenger side of Carter’s

truck, she did not have her phone in her hand. Her phone was either in her pocket or

clipped to her pocket. She denied putting her phone through the passenger-side

window. She made an audio recording of the incident but did not make a video

recording. She denied ever making a video recording of Carter.

Daniel

Daniel testified that leading up to the shooting, Carter insisted on seeing his

parents’ will, which caused problems with the family. Daniel also explained that

prior to the shooting, there had been disagreements about whether Carter had the

right to be on Daniel and Brenda’s property. Brenda’s parents had lived down the

road from Daniel and Brenda and had deeded one-third of their land to them.

Initially, Carter was not upset about the transfer of the property, but he became upset

when Daniel put a double-wide mobile home behind his in-laws’ house, which

required removing a section of fence. Daniel explained that he and Brenda were

allowed to use the driveway because it was on their property. A surveyor asked

Brenda and Daniel where they wanted the property line, but the line they chose

became a “point of contention” with Carter because Carter “would state that I built

5
that driveway. That’s my driveway.” Daniel did not know if Carter’s claims about

the driveway were true, because Daniel was not around when it was built.

Daniel testified that neither he nor Brenda ever gave Carter any kind of

easement but admitted that “Brenda had let him know that he could use the road as

he needed to.” According to Daniel, Carter had sued Brenda years earlier for access

to the driveway, and a judge had issued an order allowing him to use it during their

mother’s lifetime, but she eventually passed away, and a few days before the

shooting, Daniel and Brenda were granted a dismissal of the prior judge’s order.

Daniel then placed a “no trespassing” sign on a tree on their property. He believed

the sign served as notification to Carter that he was not allowed to use the driveway

anymore.

On the morning of the shooting, Daniel was making pancakes when he heard

Carter drive through the property. Daniel testified, “I didn’t want to stop what I was

doing, so I figured [Carter] was going to do what he needed to do and I’d approach

him on the way out[]” to let Carter know the “no trespassing” sign applied to him.

When Brenda and Daniel heard Carter start his pickup truck, they walked out

together and saw Carter driving slowly through the pasture. Neither Daniel nor

Brenda had anything in their hands. Carter approached the couple with his passenger

window down. Daniel walked up to the passenger window, pointed at the “no

trespassing” sign, and asked, “Dale, did you see that sign?” Carter responded, “You

6
see this, motherf---er?” Daniel saw Carter point the muzzle of a gun at him and then

realized that he had been shot.

Daniel testified that “it took a second to realize what had happened.” He

looked down and saw blood streaming out and told Brenda to “get down.” They

managed to get away from the truck, but Carter kept firing. The couple ran toward

their house, and Daniel got his shotgun and told Brenda to call 911 because he “got

shot in the heart.”

Daniel went outside and fired seven rounds as Carter continued to fire at the

couple. As Carter was leaving the driveway, Daniel reloaded and shot two more

times. Daniel admitted shooting in the direction of house which was ninety to one

hundred yards away. Daniel later discovered that his house had been “shot out” and

that Carter had continued firing shots as Daniel and Brenda were trying to get inside.

Daniel testified that Brenda had an audio recording of the incident but did not

videotape it.

The Appellant

Carter testified that he and Brenda started not to get along when she married

Daniel. According to Carter, the controversy over the property “started just by

intimidation.” Daniel and Brenda wanted Carter to move off of the property and

wanted “every inch of” the family property and “every dime” of his parents’ money

for themselves. Carter also testified that Daniel killed some of his animals.

7
Carter explained that on the morning of October 23, 2022, he was on the

“easement” that he built “40 years ago” because that was the only way he could get

to his property, and he needed to put horse feed in the feed room. As he was going

back out of the driveway, Brenda and Daniel walked up to his truck, so he stopped,

and Daniel and Brenda leaned against the open window of his truck. Carter testified

that he observed Daniel “reaching towards around his back…straight toward the

middle of his back where you normally keep one of those little hideaway guns at.”

Carter testified that he believed without a doubt that Daniel was reaching for a gun.

Carter believed that he was “fixing to get killed if I didn’t do something about it.” In

response, Carter pulled his gun from the console and shot Daniel in the chest. Carter

believed that if he didn’t shoot Daniel, he would “probably be dead right now.”

After Carter shot Daniel, Brenda and Daniel turned around and ran. Carter

said that Brenda still had her phone in her hand. Carter shot two more times into the

ground. Carter then drove to his house and Brenda and Daniel kept shooting. Carter

grabbed a lever-action rifle and shot in the direction of Brenda and Daniel’s house

in order to get them to stop shooting. After Daniel and Brenda stopped shooting,

Carter backed out onto the highway and left.

Carter testified that Brenda “definitely” took a video on the day of the incident

as Brenda frequently carries her phone in her right hand “videoing.”

8
On cross examination, the State questioned Carter about his conviction and

twenty-year sentence for home invasion in Illinois in 2002. The State also questioned

Carter about his parents’ will. Carter denied being cut out of his parents will, instead

claiming that the most recent will gave Carter one-third of his parents’ estate as they

wanted. Carter claimed that the will Brenda probated is invalid. The State offered,

and the trial court admitted, the application for probate and the last will and testament

of Carter’s father. Over objection from the defense, the trial court admitted a final

summary judgment that a mortgage company obtained against Carter.

Issue One: Prosecutorial Misconduct

In his first issue, Carter complains that the prosecutor engaged in a course of

conduct amounting to prosecutorial misconduct calculated to deny him a fair and

impartial trial. To preserve a complaint of prosecutorial misconduct, a defendant

must “(1) object on specific grounds, (2) request an instruction that the jury disregard

the comment, and (3) move for a mistrial.” Penry v. State, 903 S.W.2d 715, 764

(Tex. Crim. App. 1995); see also Tex. R. App. P. 33.1 (requiring as a prerequisite

for a complaint on appeal that such a complaint was timely made to the trial court

and that the trial court ruled on the complaint). The defendant’s failure to object to

prosecutorial misconduct at the earliest possible moment generally leaves the

complaint unpreserved for appellate review. See Penry, 903 S.W.2d at 764.

Therefore, to determine whether the various issues Carter claims as prosecutorial

9
misconduct were preserved for our review, we must examine the record to see

whether and when Carter claimed prosecutorial misconduct, and whether the trial

court ruled on any such complaint. See id.

In his appeal, Carter contends the State engaged in prosecutorial misconduct

at six points during the trial. The first instance of alleged misconduct “involve[s] the

evidence regarding whether Appellant had the right to be present at the location

where the shooting occurred, which was an important element regarding Appellant’s

self-defense claim.” Carter complains on appeal that Brenda and Daniel testified he

did not have an easement to travel on the driveway where the shooting took place

and that the couple obtained an order extinguishing the easement a few days before

the incident because there was “no evidence being introduced showing that

Appellant was aware of that order[.]” But Carter never objected to this testimony

during the trial.

Carter further complains about the admission of State’s Exhibit 46A – the

application for probate and last will and testament of Carter’s father – and the

admission of State’s Exhibit 46B – the summary judgment order in favor of a

mortgage company. Carter did not object to Exhibit 46A, and his only objection to

Exhibit 46B was “not relevant” to which the State responded:

[The State]: My response is that, Judge, he portrayed himself as being
run off the property by [Daniel] and [Brenda] when in fact a mortgage
company got a judgment against him for defaulting on mortgage
payments.
10
[Carter’s counsel]: And there again, Judge, he was in possession of it.
He wasn’t evicted, so he’s in possession of the property.

The trial court admitted State’s Exhibit 46B. Carter failed to object to the testimony

of Brenda and Daniel he identifies in his brief. Carter also failed to object to the

admission of State’s Exhibit 46A. Carter failed to bring his complaints to the trial

court’s attention and to seek a ruling on them. Although he objected to Exhibit 46B

on the basis of relevance, he made no objection that the State was engaging in

prosecutorial misconduct by offering the exhibit into evidence. Nor did Carter move

for a mistrial or new trial on the basis that the State committed prosecutorial

misconduct with respect to these issues. “We are not hyper-technical in examination

of whether error was preserved, but the point of error on appeal must comport with

the objection made at trial.” Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim.

App. 2014). Because Carter failed to raise the issue of prosecutorial misconduct at

any point while the trial court had the ability to address his complaint, he failed to

preserve it for appellate review. Tex. R. App. P. 33.1(a)(1); Hajjar v. State, 176

S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (addressing

prosecutorial misconduct argument and concluding: “By failing to object on this

theory at trial, appellant preserved nothing for our review.”).

Carter contends that we should address his complaint even if he did not

preserve it because the introduction of the evidence regarding his right to be on the

11
property was “akin to introducing false evidence before the jury, which is a violation

of Appellant’s right to due process.” In Compton v. State, 666 S.W.3d 685, 731 (Tex.

Crim. App. 2023) the Court of Criminal Appeals held that even prosecutorial

misconduct that rises to the level of a due process violation may be subject to

procedural default. The court declined to consider, either “separately or

cumulatively,” unchallenged instances of alleged misconduct. Id. Thus, “[a] due-

process, fair-trial objection is required ... to preserve a complaint on appeal that the

prosecutor engaged in serious and continuing prosecutorial misconduct so as to

effectively deprive a defendant of due process or a fair trial.” Mullinax v. State, No.

02-14-00237-CR, 2015 Tex. App. LEXIS 5409, at *3 (Tex. App.—Fort Worth May

28, 2015, pet. ref’d) (mem. op., not designated for publication) (citing Clark v. State,

365 S.W.3d 333, 339-40 (Tex. Crim. App. 2012)); see also Taylor v. State, Nos. 09-

16-00303-CR, 09-16-00307-CR, 2018 Tex. App. LEXIS 3426, at **16-17 (Tex.

App.—Beaumont May 16, 2018, pet. ref’d) (mem. op., not designated for

publication). “The cumulative-error doctrine does not apply unless the complained-

of errors have been preserved for appeal and are actually errors.” Schmidt v. State,

612 S.W.3d 359, 372 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (citing

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)). Since Carter

failed to preserve error regarding the alleged incidences of prosecutorial misconduct,

12
we conclude there is no cumulative error or harm. See Schmidt, 612 S.W.3d at 372

(citing Buntion v. State, 482 S.W.3d 58, 79 (Tex. Crim. App. 2016)).

In his second subpoint, Carter complains that the State offered evidence

regarding the details of Carter’s conviction for home invasion as well as evidence

for which Carter was acquitted. The State offered into evidence Exhibit 65, which

included the information charging Carter with one count of home invasion and two

counts of aggravated sexual assault, as well as the judgment order sentencing for the

offense of home invasion. Carter initially objected to the State’s questioning

regarding the home invasion:

[State]: You went to trial and had a trial and a jury found you guilty of
home invasion. Do you remember that?

[Carter]: Yes, I do. Part of it.

[State]: In fact, if fact, if this is you, William D. Carter, 1/19/1953.
That’s you?

[Carter]: Is that my birthday?

[State]: Yes.

[Carter’s counsel]: Judge, I object to this. And he’s already, he’s
already admitted he had that conviction. And so this is unnecessary and
prejudicial, and object to it.

[State]: None of this came out during direct. I’m just establishing the
fact that he’s the same person on this document because none of it came
out.

13
The trial court overruled Carter’s “unnecessary and prejudicial” objection,

and when the State offered Exhibit 65 into evidence, Carter did not object. On

appeal, Carter makes the additional argument that the admission of Exhibit 65 was

a violation of Texas Rule of Evidence 609(a). Once again, Carter’s objection on

appeal does not comport with his objection at trial; therefore, nothing is preserved

for our review on appeal. See Bekendam, 441 S.W.3d at 300; Tex. R. App. P.

33.1(a)(1).

In his third subpoint, Carter complains about comments the prosecutor made

in the presence of the jury while responding to Carter’s objection to the State’s

questions about the victim in the home invasion case.

[State]: Was that the victim on the case where you went to prison --

[Carter’s counsel]: Excuse me.

[State]: -- in Illinois?

[Carter’s counsel]: Excuse me, Judge, we’ve already been over that. It’s
admitted. He got a conviction, and the rest of this is immaterial and
irrelevant. He’s got a conviction. They got it in evidence.

[State]: The door is opened to his prior bad acts as it surrounds to this.
Other threats made about on recordings and other threats made to other
women. He portrayed himself judge as being framed, my dogs were
being framed, my dogs were being terrorized, and this was [Daniel’s]
quote, modus operandi, habit, and all these other things. He’s made a
false impression to the ladies and gentlemen of the jury that he’s some
kind of innocent defenseless man where I have a mountain of evidence
here that rebuts this defensive theory. So it’s not just that I’m just going
behind the conviction, but I have a number of extraneous acts here that

14
were committed at the hands of this defendant, not only to [Daniel] but
to other women.

[Carter’s counsel]: I’m going, I’m going to object to him going into
that. None of that’s in evidence at this point. They got one felony
conviction that’s in evidence. And going into the facts and so forth and
so on is --

[Trial court]: Sustained.

[State]: I’m asking respectfully for a hearing outside the presence of
jury.

After further discussion outside the presence of the jury, the trial court

maintained its ruling sustaining defense counsel’s objection to the details of the

Illinois conviction. On appeal, Carter contends that “injecting matters that are

outside the record, through jury argument, sidebar remarks or argument regarding

an objection, is clearly improper” and that the prosecutor’s remarks “show a willful

and calculated effort on the part of the State to deprive Appellant of a fair and

impartial trial.” Because Carter did not object on the basis of prosecutorial

misconduct as soon as possible after it occurred, he has not preserved the issue for

our review. See Penry, 903 S.W.2d at 764.

In his fourth subpoint, Carter contends the State engaged in prosecutorial

misconduct by calling him names on several occasions during closing argument. On

appeal, Carter identifies five instances of name calling. First, the prosecutor referred

to Carter as “a despicable piece of garbage[.]” Carter did not object to this comment.

Second, the prosecutor called Carter “Mr. Tough guy.” Carter did not object to this
15
name-calling. Third, the prosecutor called Carter “crazy. He’s bat crazy.” Carter did

not object to this statement either. Fourth, the prosecutor referred to Carter as “[t]his

long haul truck driving garbage[.]” Carter also did not object to this comment.

Because Carter did not object to the above identified comments which he

complains of on appeal, he has not preserved his argument on appeal. See Tex. R.

App. P. 33.1(a)(1). However, Carter did object to one of the instances of name-

calling which he complains of on appeal. During closing argument, the following

exchange occurred:

[State]: And I could either do it now or I could do it after [defense
counsel] speaks, and I commend [defense counsel]. We tried a clean
case. [Defense counsel] is a good man, all right. But he drew a 2-7
offsuit in a Texas hold’em hand when it came to the facts of this case.
There’s been no hostility or animosity between us, and that’s in this
stressful being that we have a very healthy thing.

So I commend [defense counsel], because [defense counsel] ensures
that even despicable individuals like this selfish son of a bitch right here
--

[Carter’s counsel]: Excuse me, Judge. I’m going to object to that
reference and ask that be stricken.

[Trial court]: Sustained. Stricken from the record.

[Carter’s counsel]: Ask the jury to disregard.

[Trial court]: Jury should disregard.

[Carter’s counsel]: The rules require me to ask for a mistrial.

[Trial court]: Denied.

16
From the context in which it was made, Carter’s objection was sufficient to

preserve his complaint for our review, and we agree that the complained of argument

was improper. See Ponce v. State, 299 S.W.3d 167, 175 (Tex. App.—Eastland 2009,

no pet.). Proper areas of jury argument include: (1) a summation of the evidence

presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer

to opposing counsel’s argument; or (4) a plea for law enforcement. See Jackson v.

State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). “A prosecutor should not refer

to a defendant by any name other than his given name or nickname.” Ponce, 299

S.W.3d at 175. “It is improper to refer to a defendant by a derogatory term designed

to subject him to personal abuse.” Id.

That said, “[r]emarks that fall outside the permissible bounds of jury argument

are not constitutional errors.” Gilcrease v. State, 32 S.W.3d 277, 279 (Tex. App.—

San Antonio 2000, pet. ref’d). “Such remarks constitute ‘other errors’ that fall within

Texas Rule of Appellate Procedure 44.2(b).” Id. (quoting Tex. R. App. P. 44.2(b).

“We must disregard error that does not affect the accused’s substantial rights.” Id.

To determine whether the State’s improper argument affected Carter’s substantial

rights, we look to three factors: (1) the severity of the misconduct, (2) measures

adopted to cure the misconduct, and (3) the certainty of conviction absent the

misconduct. Id.

17
Here, the State referred to Carter as a “son of a bitch” one time, and Carter

promptly objected. Although the State referred to Carter as other names during

closing argument, Carter did not object to any of these names. The trial court

promptly gave an instruction to disregard the prosecutor’s comment, and we

presume the jury followed the trial court’s instruction. See Colburn v. State, 966

S.W.2d 511, 520 (Tex. Crim. App. 1998). In the absence of anything in the record

to rebut this presumption, we conclude the trial court’s careful and prompt

instruction to the jury to disregard the prosecutor’s remarks was sufficient to cure

any harm the remarks might have caused. See Galloway v. State, 716 S.W.2d 556,

557 (Tex. App.—Waco 1986, pet. ref’d). Accordingly, we cannot say that the

prosecutor’s improper name-calling denied Carter the right to a fair and impartial

trial, nor that it affected Carter’s substantial rights. See Tex. R. App. P. 44.2(b).

In his fifth subpoint, Carter complains that the prosecutor made improper

objections to Carter’s closing argument which were incorrectly sustained by the trial

court. As part of Carter’s fifth subpoint, he complains of the following objection

made by the State:

[Carter’s counsel]: But let’s say there’s a lot of dispute about this whole
case. One side thinks this, the other side thinks that. We’re not going to
get that resolved here by this jury. That’s a whole another case.
Probably --

[State]: I object to that. Because it has been resolved. It wasn’t his
property it was their property, and I object.

18
[Carter’s counsel]: That’s a jury question, Judge.

[State]: Actually, it’s not. There’s nothing in here about a property
dispute. Nothing. I respectfully object to this.

[Trial court]: This is defense’s argument.

Although the State’s objection was not sustained and the trial court did not

prevent Carter’s counsel from making further arguments about the existence of a

“property dispute,” Carter complains on appeal that the State’s objection “is still

trying to falsely use those exhibits [the will and the summary judgment], on top of

the alleged extinguishment of the easement, for which there was no evidence to show

Appellant had received notice, to prove Appellant didn’t have any authority to be on

the property.” To preserve an issue for appellate review, a party must make a timely

and specific objection and obtain an adverse ruling. Id. 33.1(a)(1)(A). The record

does not contain a ruling that was adverse to Carter on this issue, and Carter did not

object to the State’s objection on the grounds that it constituted prosecutorial

misconduct. Therefore, there is nothing preserved for our review.

Each of the State’s objections to Carter’s jury argument which was sustained

and about which Carter complains on appeal is also asserted, in his second through

fifth issues, as constituting a denial of his right to counsel. Because there was no

objection to prosecutorial misconduct in any of these exchanges, we conclude

Carter’s prosecutorial-misconduct complaints were not preserved for our review,

19
and we will address them separately as denial-of-counsel issues in Carter’s second

through fifth issues, below.

In his sixth subpoint, Carter complains of following statements made by the

prosecutor during closing argument:

• “The brother-in-law that had given this defendant notice not to come on to the

property. The brother-in-law who said who verified he was cut out of the

will.”

• “Who is trespassing? Him.” … “[Carter] goes over to [Daniel] and Brenda’s

house knowing he wasn’t supposed to be there.”

• “Even now, and I mentioned to you during jury selection, and I know it’s been

a long three days with proper pleadings and proper proof, here it is. Proper

proof. It’s in evidence. He went to the pen in Illinois for home invasion. Not

possession of a gun, not possession of drugs, but it’s right here. A 20-year

sentence. I don’t care if he didn’t do all of it or not, but it speaks for itself.”

Carter did not object to any of these arguments, whether based on

prosecutorial misconduct or otherwise. The issue is not preserved for review on

appeal. Id. 33.1(a)(1); Hajjar, 176 S.W.3d at 566 (addressing prosecutorial

misconduct argument and concluding: “By failing to object on this theory at trial,

appellant preserved nothing for our review.”).

We overrule Carter’s first issue.

20
Issues Two through Five: Denial of Counsel by Limiting Jury Argument

In issues two through five, Carter complains that the trial court denied his right

to counsel by improperly restricting his closing argument by sustaining the State’s

objections to his arguments. We review a trial court’s rulings on the State’s

objections to Carter’s jury argument for abuse of discretion. See Davis v. State, 329

S.W.3d 798, 825 (Tex. Crim. App. 2010). The trial court has broad discretion in

controlling the scope of the closing argument, and the trial court abuses its discretion

if its decision is arbitrary or unreasonable. Wilson v. State, 473 S.W.3d 889, 902

(Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). A defendant is not entitled to

make a jury argument that misstates the law or is contrary to the court’s charge. See

Thomas v. State, 336 S.W.3d 703, 713 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d). We determine de novo whether a defendant has misstated the law during jury

argument. See id.

“[P]roper jury argument generally falls within one of four general areas: (1)

summation of the evidence; (2) reasonable deduction from the evidence; (3) answer

to argument of opposing counsel; and (4) plea for law enforcement.” Brown v. State,

270 S.W.3d 564, 570 (Tex. Crim. App. 2008). “To constitute reversible error, the

argument must be manifestly improper or inject new, harmful facts into the case.”

Jackson, 17 S.W.3d at 673.

21
“Counsel is entitled to correctly argue the law, even if the law is not included

in the jury charge.” Vasquez v. State, 484 S.W.3d 526, 531 (Tex. App.—Houston

[1st Dist.] 2016, no pet.). “Prohibiting defense counsel from making a particular jury

argument when counsel is entitled to do so is a denial of the defendant’s right to

counsel.” Id. “However, neither the State nor the defense may use closing argument

as a vehicle to place before the jury evidence that is outside the record.” Id.

In issue two, Carter claims the trial court erred by sustaining the State’s

objection to a portion of Carter’s closing argument in which Carter argued that there

was no video recording of the events surrounding the shooting because the video

would have shown that Daniel had a pistol:

[Counsel for Carter]: So it’s sort of, but part of it is let’s get rid of, let’s
get rid of brother. Let’s get rid of William Dale Carter. Get him out of
here some way. Just make him uncomfortable. Let’s run out there with
a tape recorder. How would anybody like that? Somebody wants to talk
to him they run up there with a tape recorder. And in this instance, the
testimony from William Dale Carter is they came up there, okay. They
didn’t want him driving. They wanted him to stop. They’re coming out
there to the truck, get up there in the window, so the brother-in-law’s
up here leaning on the truck window --

[State]: I object to that not being supported by the evidence, Judge.

[The Court]: Sustained.

[Carter’s counsel]: Okay. So, and so, anyway, here’s the sister, Brenda,
she’s got her phone. Most of these phone people take pictures, the
video, and sound and video. Anyway, we hadn’t seen any video from
that. She says it’s just sound. But we say maybe, maybe the reason
there’s no video is because her husband had a pistol.

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[State]: I object to that also as being unsupported by the evidence,
Judge.

[Carter’s counsel]: It’s in the record, Judge.

[State]: It’s not, and I respectfully object.

[The Court]: Sustained.

Carter contends that that there was evidence in the record that Brenda had her

phone in her hand, and based on that evidence, Carter’s counsel made a reasonable

deduction that there was no video because it would have supported Carter’s version

of the events that Daniel had a pistol and Carter shot Daniel to defend himself. But

in the absence of any evidence to support Carter’s assertion there was no video

because it would have shown Daniel had a pistol, the trial court may have reasonably

concluded Carter’s theory was mere speculation. We conclude the trial court was

within its discretion to sustain the State’s objection, and we overrule Carter’s second

issue.

In issue three, Carter complains the trial court erred by sustaining the State’s

objection to a portion of Carter’s closing argument in which Carter argued Daniel’s

intention to kill Carter:

[Counsel for Carter]: So here’s one bullet from a pistol. Here’s another
bullet from a pistol. And this one right here right above, right above the
driver’s, what was that, four inches above maybe the driver’s head? So
this could have easily been, this could have easily been the death of
William Carter in this case. Easily, he could have been killed. This is
what’s in the mind, this right here, this right here is what Mr. Brother-

23
in-law, [Daniel], this is his intention. This was [Daniel’s] intention right
here.

So it is really so difficult to say that William Carter believes his brother-
in-law is going to kill him? Because this shows what his intent. This is
the real thing. This is shotgun shell. One, boom, boom, boom, boom. I
think he said 15 times, whatever it was. This is 12-gauge right at his
truck as he’s driving by. And not even, he’s not shooting back at this
point. He’s driving the truck. He’s not shooting that powder gun at this
time. The guy just, the brother-in-law wants to kill him. That’s not even,
that’s not justified right there. So that’s what’s going on.

[State]: I object to that being also a misstatement of the law, Judge. All
of this happened after he shot him with a bullet in his chest, and I
respectfully object.

[Trial court]: Sustained.

Carter complains that the trial court improperly sustained this argument

because Carter testified during trial that he and Daniel had a bad relationship and

that his reason for shooting Daniel was because he believed Daniel was reaching for

a small gun behind his back. We agree that this was proper jury argument. Carter’s

jury argument in this instance was proper because it was a summation of the

evidence and a reasonable inference from the evidence.

Nevertheless, we conclude that if the trial court erred, any such error was

harmless. The denial of the right to counsel is constitutional error that is subject to a

harm analysis under Rule 44.2(a) of the Texas Rules of Appellate Procedure.

Vasquez, 484 S.W.3d at 532 (citing Tex. R. App. P. 44.2(a)). An appellate court

“must reverse a judgment of conviction or punishment unless the court determines

24
beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.” Tex. R. App. P. 44.2(a). “In applying the harmless error test, the

primary question is whether there is a ‘reasonable possibility’ that the error might

have contributed to the conviction or punishment.” Vasquez, 484 S.W.3d at 532

(quoting Mosely v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)).

The State made its objection after Carter made his argument to the jury that

the evidence showed Daniel’s intention was to kill Carter. The trial court merely

sustained the State’s objection; it did not instruct the jury to disregard the argument.

Assuming without deciding the trial court erred in sustaining the State’s objection,

any such error was harmless since the record does not reveal the extent to which

defense counsel intended to continue or expound upon this argument. See Wilson,

473 S.W.3d at 902-03 (holding any error committed by the trial court in sustaining

the State’s objection to the pertinent portions of the closing argument of the

defendant’s trial counsel was harmless because the trial court did not instruct the

jury to disregard the argument); Price v. State, 870 S.W.2d 205, 209 (Tex. App.—

Fort Worth), aff’d, 887 S.W.2d 949 (Tex. Crim. App. 1994) (“Where the record does

not fully demonstrate to the reviewing court what counsel would have argued but for

an objection, no demonstration of harmful error is made.”). We overrule Carter’s

third issue.

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In his fourth issue, Carter complains the trial court improperly sustained the

State’s objection to the following argument:

[Carter’s counsel]: So who owns the property out there? You’d have to
get a title company to run, you’d have to do a lot of legal research, title
research who owns this or that --

[State]: I’m going to object to all of that too. None of that came out.
There wasn’t a word of evidence about that. I respectfully object.

[Trial court]: Sustained.

Carter complains that the evidence admitted at trial showed that there was

conflict between the parties regarding whether or not Carter had an easement on the

driveway where he shot Daniel. But, again, even if we were to assume the trial court

erred in sustaining the State’s objection, we conclude any such error was not harmful

because there was no instruction by the trial court to disregard the argument

preceding the objection, and there is nothing in the record showing what Carter’s

counsel would have argued but for the trial court’s ruling on the objection. See

Wilson, 473 S.W.3d at 902-03; Price, 870 S.W.2d at 209. We overrule Carter’s

fourth issue.

In his fifth issue, Carter complains the trial court improperly sustained the

State’s objection to the following argument:

[Carter’s counsel]: Okay. So, now, he’s not obligated, nobody’s
obligated to retreat. Texas law. A person who, a person provoked
doesn’t have to retreat. Presumption of reasonable belief, reasonable
belief that he’s in that kind of danger applies unless the State proves
beyond a reasonable doubt that the facts giving rise to a presumption
26
do not exist. That really doesn’t apply because he’s thinking he’s in
serious danger. So that’s where you are.

Now, another part of this that’s important it’s your duty to consider all
relevant facts and circumstances surrounding the shooting and the
previous relationship existing between the accused and the defendant.
What’s their relationship? That all came in. You got to consider that
with all the relevant facts and circumstances going to show the
condition, the condition of the mind of the accused at the time of the
alleged offense. So it’s what Mr. Carter believes based on all this stuff
that’s been going on.

[State]: That’s also a misstatement of the law, and I object. It’s what a
reasonable person believes.

[Trial court]: Sustained.

[Carter’s counsel]: Okay. So, anyway, you’ve got the instruction and
can read that, so forth and so on. And so the Court’s telling you if you
find from the evidence or have a reasonable doubt thereof that the
defendant reasonably believed that deadly force when and to the degree
used was immediately necessary, that the defendant reasonably
believed, this is written down here, that the defendant reasonably
believed deadly force when and to the degree used --

[State]: That’s a misstatement of the law, and I respectfully object.

[Carter’s counsel]: I’m reading from the jury charge.

Consistent with the Texas Penal Code, the trial court’s charge gave the jury

the following instructions on self-defense and the use of deadly force:

Upon the law of self defense, you are instructed that a person is justified
in using force against another when and to the degree he reasonably
believes the force is immediately necessary to protect himself against
the other’s use or attempted use of unlawful force.

The use of force against another is not justified in response to verbal
provocation alone.
27
A person is justified in using deadly force against another:

(1) if the person would be justified in using the force against the other;
and

(2) when and to the degree the person reasonably believes the deadly
force is immediately necessary:

(A) to protect himself against the other’s use or attempted use of
unlawful deadly force; or

(B) to prevent the other’s imminent commission of aggravated
kidnapping, murder, sexual assault, aggravated kidnapping, murder,
sexual assault, aggravated sexual assault, robbery, or aggravated
robbery.

[…]

A person who has a right to be present at the location where the deadly
force is used, who has not provoked the person against whom the deadly
force is used, and who is not engaged in criminal activity at the time the
deadly force is used is not required to retreat before using deadly force
and the finder of fact, when determining whether the actor reasonably
believed that the use of deadly force was necessary, may not consider
whether the actor failed to retreat.

[…]

You are further instructed that it is your duty to consider all relevant
facts and circumstances surrounding the alleged offense and the
previous relationship existing between the accused and the
complainant, together with all relevant facts and circumstances going
to show the condition of the mind of the accused at the time of the
alleged offense.

Now, therefore, bearing in mind the foregoing definitions, instructions
and presumption, if you believe from the evidence beyond a reasonable
doubt that the defendant, WILLIAM DALE CARTER in San Jacinto
County, Texas Texas, [sic] on or about the 23rd day of October 2022,
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did then and there intentionally or knowingly cause serious bodily
injury to [Daniel]. [sic] by shooting him with a black-powder pistol as
alleged in the indictment; but you further find from the evidence, or
have a reasonable doubt thereof, that the defendant reasonably
believed, or is presumed to have reasonably believed that deadly force
when and to the degree used, if it was, was immediately necessary to
protect himself against the use or attempted use of unlawful deadly
force by the said [Daniel]; you will acquit the defendant and say by
your verdict “not guilty.”

See Tex. Penal Code Ann. §§ 9.31(a), 9.32(a). The jury charge defined “reasonable

belief” to mean “a belief that would be held by an ordinary and prudent person in

the same circumstances as the defendant.” “The ‘reasonably believe’ language

contains subjective and objective components.” Lozano v. State, 636 S.W.3d 25, 32

(Tex. Crim. App. 2021). “A defendant must subjectively believe that another person

used or attempted to use unlawful force (Section 9.31) or deadly force (Section 9.32)

against the defendant and that the defendant’s use of unlawful or deadly force in

response was immediately necessary.” Id. “Second, a defendant’s subjective belief

must be reasonable.” Id. “A reasonable belief is one held by an “ordinary and prudent

man in the same circumstances as the actor.”” Id. (quoting Tex. Penal Code Ann. §

1.07(a)(42)).

The portion of defense counsel’s argument addressing the subjective

component of the definition of “reasonable belief” could be considered a

“misstatement of the law” only to the extent it failed to address the objective

component, but after the objection, defense counsel proceeded to address the

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objective component. Taken as a whole, the argument does not misstate the law, and

although the trial court sustained the objection, the trial court did not instruct the jury

to disregard any portion of the argument, nor does the record reveal that defense

counsel was prevented from making any additional arguments addressing the issue.

See Wilson, 473 S.W.3d at 902-03; Price, 870 S.W.2d at 209; Joiner v. State, No.

08-18-00118-CR, 2020 Tex. App. LEXIS 6462, at *53 (Tex. App.—El Paso Aug.

13, 2020, pet. ref’d) (not designated for publication) (“[T]here is no improper

restriction on a defendant’s jury argument amounting to a denial of counsel where

the defendant is able to convey the gravamen of his argument to the jury despite the

trial court’s curtailment of a particular portion of his argument.”). After the

objection, defense counsel continued to address self-defense and the use of deadly

force, directing the jury’s attention to the charge which included both the subjective

and objective components of “reasonable belief.” On this record, we cannot

conclude there is a reasonable possibility that the trial court’s sustaining of the

State’s objection may have contributed to the conviction or punishment. See

Vasquez, 484 S.W.3d at 532. We overrule Carter’s fifth issue.

Issue Six: Extraneous Offenses

In his sixth issue, Carter complains that the prosecutor denied him a fair and

impartial trial by injecting extraneous, unproven offenses into the record. Carter asks

us to consider his arguments he made in issue one, subpoint three. Carter does not

30
advance any new arguments in his sixth issue as to how or why he was denied a fair

trial. Given our resolution in issue one, subpoint three, we overrule Carter’s sixth

issue.

Issue Seven: Jury Charge

In his seventh issue, Carter complains that the trial court committed reversible

error in the guilt phase jury charge by not defining the offense as strictly a result-of-

conduct offense. Specifically, he complains that the trial court defined the terms

“intentionally” and “knowingly” in the jury charge to include both the nature-of-

conduct and result-of-conduct definitions. Where an appellant raises jury-charge

error on appeal, the degree of harm necessary for reversal depends on whether the

appellant preserved the error by a timely objection at trial. Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985). When, as here, the defendant fails to object

or states in the trial court that he has no objection to the charge, we will not reverse

for jury charge error unless the record shows “egregious harm” to the defendant. See

State v. Ambrose, 487 S.W.3d 587, 595 (Tex. Crim. App. 2016) (“[U]npreserved

jury-charge error does not require a new trial, even when the error is complained of

in a motion for new trial, unless the error causes ‘egregious harm.’”); Ngo v. State,

175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Bluitt v. State, 137 S.W.3d

51, 53 (Tex. Crim. App. 2004); Almanza, 686 S.W.2d at 171. “Errors that result in

egregious harm are those that affect the very basis of the case, deprive the defendant

31
of a valuable right, or vitally affect a defensive theory.” Ngo, 175 S.W.3d at 750

(internal quotations omitted). An appellant must have suffered actual harm, not

merely theoretical harm. See Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012) (citing Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986)).

We review jury charge error by a two-step process. Ngo, 175 S.W.3d at 744.

First, we determine whether error exists in the jury charge. Id. Second, we determine

whether sufficient harm was caused by the error to require reversal. Id. To determine

whether egregious harm resulted, we examine “the entire jury charge, the state of

the evidence, including the contested issues and weight of probative evidence, the

argument of counsel and any other relevant information revealed by the record of

the trial as a whole.” Almanza, 686 S.W.2d at 171.

Section 6.03 of the Texas Penal Code sets out four culpable mental states –

intentionally, knowingly, recklessly, and criminally negligent. Price v. State, 457

S.W.3d 437, 441 (Tex. Crim. App. 2015). In the jury charge, the language regarding

the culpable mental state must be tailored to the conduct elements of the offense. Id.

A trial court errs when it fails to limit the language regarding the applicable culpable

mental states to the appropriate conduct element. Id. If the gravamen of an offense

is the result of conduct, the jury charge on culpable mental state should be tailored

to the result of conduct and likewise for nature-of-conduct offenses. Id. However, if

the offense has multiple gravamina, and one gravamen is the result of conduct and

32
the other is the nature of conduct, the jury charge on culpable mental state must be

tailored to both the result of conduct and the nature of conduct. Id.

A person commits the offense of aggravated assault if he intentionally,

knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly

weapon during the commission of the assault. Tex. Penal Code Ann. § 22.01(a)(1),

22.02(a)(2). Aggravated assault is a result-oriented offense. Landrian v. State, 268

S.W.3d 532, 537 (Tex. Crim. App. 2008). “It is error for a trial judge to not limit the

definitions of the culpable mental states as they relate to the conduct elements

involved in the particular offense.” Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim.

App. 1994). Nevertheless, if the application paragraph of the jury charge points the

jury to the appropriate portions of the definitions, an error in providing definitions

that do not limit the jury to considering only the results of the defendant’s conduct

is considered harmless error. Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App.

1995) (en banc); Hughes v. State, 897 S.W.2d 285, 296-97 (Tex. Crim. App. 1994).

Here, the jury charge defined “intentionally” and “knowingly” as follows:

A person acts intentionally, or with intent, with respect to the nature of
his conduct or to a result of his conduct when it is his conscious
objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature
of his conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or that the circumstances exist. A
person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to
cause the result.
33
In this case, the charge’s definitions of “intentionally” and “knowingly”

mirrored the definitions in the Texas Penal Code and did not limit the jury’s

consideration to whether Carter intended or acted with knowledge regarding the

result of his conduct. See Tex. Penal Code Ann. § 6.03(a), (b). However, the

application paragraph of the charge instructed the jury to find Carter guilty if he

“intentionally, knowingly, and recklessly cause[d] serious bodily injury to [Daniel],

by shooting [Daniel] in the chest with a black-powder revolver, and did then and

there use or exhibit a deadly weapon, namely a black-powder revolver[.]” Because

the application paragraph limited the jury’s consideration to whether Carter acted

with the requisite state of mind regarding the result of his conduct, we are confident

the jury’s decision to find Carter guilty was based on the result of his conduct. We

conclude that the facts, as applied to the law in the application paragraph of Carter’s

jury charge, pointed the jury to the appropriate portions of the definitions of the

terms intentionally and knowingly.

Carter does not direct us to any evidence, nor any argument of counsel, that

Carter could have intended the nature of his conduct (shooting Daniel in the chest)

without intending or being reasonably certain about the result of his conduct (causing

serious bodily injury). Rather, Carter’s defense was that he shot Daniel in self-

defense because he believed Daniel was reaching for a gun. The charge’s abstract

definitions of “intentionally” and “knowingly” did not affect the very basis of the
34
case, deprive Carter of a valuable right, or vitally affect his defensive theory. Ngo,

175 S.W.3d at 750. Therefore, we conclude that the trial court’s failure to limit the

definitions of those terms did not result in egregious harm. Patrick, 906 S.W.2d at

492-93; Hughes, 897 S.W.2d at 296-97; Coleman v. State, 279 S.W.3d 681, 686-87

(Tex. App.—Amarillo 2006), aff’d, 246 S.W.3d 76 (Tex. Crim. App. 2008). We

overrule Carter’s seventh issue.

Conclusion

Having overruled all of Carter’s issues, we affirm the judgment of the trial

court.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on August 22, 2025
Opinion Delivered January 7, 2025
Do Not Publish

Before Golemon, C.J., Johnson and Chambers, JJ.

35