Darrin Lopez v. the State of Texas

Affirmed and Opinion Filed December 11, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00753-CR

DARRIN LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F21-75024

MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Reichek
Darrin Lopez appeals his conviction for the murder of James Faith.

Appellant’s sole issue on appeal is that the evidence is insufficient to support the

jury’s rejection of his claim that his conduct was justified by the law of defense of a

third person. We affirm.

BACKGROUND

At about 7:30 a.m. on October 9, 2020, shortly after James Faith and his wife

Jennifer left their Dallas residence to walk their dog, appellant shot James seven

times, killing him instantly. Images of appellant’s truck at the scene of the shooting
and information extracted from Jennifer’s cell phone led to appellant’s arrest in

Tennessee on January 11, 2021. Appellant was subsequently indicted for James’s

murder. At trial, appellant admitted he shot James, but asserted his actions were

justified because he acted in defense of a third person, Jennifer.

Appellant and Jennifer dated in high school and college but went their separate

ways. While going through a divorce and feeling depressed, appellant resolved to

reconnect with her. On March 17, 2020, after 30 years without any contact, appellant

reached out to Jennifer through LinkedIn. He lived in Tennessee, and she lived in

Dallas with James and her adult daughter. Although they would not see each other

in person until the day of the shooting, the relationship escalated quickly. The day

after they reconnected, appellant told Jennifer he loved her. Jennifer soon told a

friend she was having an emotional affair with appellant. From March until the

October 2020 shooting and beyond, appellant and Jennifer communicated frequently

through phone calls and text and email messages. Although many of the text

messages between appellant and Jennifer were deleted and could not be recovered,

the State presented over 300 pages of text and email messages at trial.

In the years since they dated, appellant served in the United States Army,

including service as a member of the Special Forces. He was deployed to Iraq six

times, and on his third deployment, was injured by a truck bomb. He continued to

serve after his injury, but was later discharged for medical reasons and was on 100

percent disability. Appellant was diagnosed with and was being treated for traumatic

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brain injury and PTSD. Soon after appellant and Jennifer reconnected, they

discussed appellant’s traumatic brain injury and military service.

Appellant testified at trial in his defense. He claimed Jennifer deceived him,

taking advantage of his brain injury, to make him believe James was abusing her and

he needed to save her. In April 2020, Jennifer began to tell appellant stories of abuse.

Jennifer sent appellant a text from her phone pretending to be James. “James” told

appellant he was going to punish his wife for her emotional affair with appellant.

Jennifer then created an email account that appeared to belong to her husband and

began forwarding to appellant abusive emails “James” sent her. She also used the

email address she created to communicate directly with appellant as “James.”

Appellant believed James was having Jennifer gang raped on many weekends. In

one instance, appellant believed Jennifer was gang raped by five men and was forced

to simultaneously write the graphic details of the incident to appellant, in real time.

Appellant also testified he believed James had forced Jennifer to perform oral sex in

their backyard hot tub and that she lost consciousness and had to be revived through

CPR.

Appellant wanted to contact the police, but Jennifer made him promise not to.

She told appellant she did not want her daughter to find out what James was doing

and also said contacting the police would make the abuse escalate. To help prevent

appellant from calling the police, Jennifer purported to put appellant in touch with

her friend Rob from work. Although Rob was a real person, Jennifer created a fake

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email address for him. Appellant testified that he emailed back and forth with “Rob”

and that “Rob” would talk to both Jennifer and James to try to curtail the abuse.

From appellant’s perspective, Rob’s involvement seemed to help. But then in

August 2020, the claims of abuse escalated.

On about October 1, 2020, “James” texted appellant his plan to hurt Jennifer

on October 9, the 15-year anniversary of the date they met. “James” told appellant

he planned a “gang scenario” in which he was going to hold Jennifer under water in

a hot tub “to see how many guys she could handle that way.” Soon after, Jennifer

asked appellant to kill her husband because she was convinced she would die on

October 9. When appellant mentioned calling the police, Jennifer brought up her

daughter.

Appellant left his home in Tennessee on October 8 and arrived at the Faiths’

home in Dallas at about 2:00 a.m. on October 9. The house next door was vacant,

and appellant waited there in the backyard, watching the Faiths’ house. When he

saw James and Jennifer leave home at about 7:30 a.m. to walk their dog, appellant

shot James seven times, killing him on the sidewalk. To give Jennifer “plausible

deniability,” appellant attacked her. He fled when he saw a neighbor approaching

and drove straight back to Tennessee.

The jury was instructed on the law of defense of a third person. The charge

included instructions on the use of deadly force to protect Jennifer against James’s

use of deadly force and against his imminent commission of a sexual assault or

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aggravated sexual assault. The jury found appellant guilty, sentenced him to

imprisonment for 62 years, and assessed a $10,000 fine.

APPLICABLE LAW

A person commits murder if he intentionally or knowingly causes the death

of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1). Deadly force used in

defense of another is a defense to prosecution for murder if that use of force is

justified. Braughton v. State, 569 S.W.3d 592, 606 (Tex. Crim. App. 2018). Section

9.31 of the penal code provides that a person is justified in using force against

another “when and to the degree the actor reasonably believes force is immediately

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

force.” TEX. PENAL CODE ANN. § 9.31(a). A person is justified in using deadly force

against another if he would be justified in using force against the other under § 9.31

and when and to the degree the actor reasonably believes the deadly force is

immediately necessary to protect the actor against the other’s use or attempted use

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

aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery,

or aggravated robbery. Id. § 9.32(a). A person is justified in using deadly force

against another to protect a third person if: (1) under the circumstances as the actor

reasonably believes them to be, he would be justified in using force to protect himself

against the unlawful force he reasonably believes to be threatening the person he

seeks to protect, and (2) the actor reasonably believes that his intervention is

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immediately necessary to protect the third person. Id. § 9.33; Henley v. State, 493

S.W.3d 77, 88–89 (Tex. Crim. App. 2016).

Defense of a third person requires a reasonable belief in the immediate need

to act. Henley, 493 S.W.3d at 89. Under a claim of defense of a third person, the

actor must reasonably believe his intervention is “immediately necessary” to protect

the third person. Id. The Texas Court of Criminal Appeals has stated that in this

context, force that is “immediately necessary” to protect another from a person’s use

of unlawful force is “force that is needed at that moment—‘when a split second

decision is required.’” Id. The penal code defines “reasonable belief” as “a belief

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

actor.” TEX. PENAL CODE ANN. § 1.07(a)(42). The “reasonably believes” language

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

32 (Tex. Crim. App. 2021). The defendant must subjectively believe that his use of

deadly force was immediately necessary to protect a third person, and that subjective

belief must also be objectively reasonable. See id.

When a defendant asserts he acted in defense of a third person, he has the

burden to produce evidence supporting his defense. See Zuliani v. State, 97 S.W.3d

589, 594 (Tex. Crim. App. 2003). Once the defendant produces such evidence, the

State has the burden of persuasion to disprove the raised defense. Id. The burden of

persuasion is not one that requires the production of evidence. Id. Rather, the State

meets its burden if it proves its case beyond a reasonable doubt. Id. When a jury

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finds the defendant guilty, there is an implicit finding against the defensive theory.

Id.

In resolving the sufficiency of the evidence issue here, we determine whether

after viewing all the evidence in the light most favorable to the prosecution, any

rational trier of fact would have found the essential elements of murder beyond a

reasonable doubt and also would have found against appellant on the issue of defense

of a third person beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914

(Tex. Crim. App. 1991). It is the responsibility of the jury to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. Jackson v. Virginia, 433 U.S. 307, 319 (1979). We will not disturb

the jury’s rejection of appellant’s defense of a third person theory on appeal unless

no rational juror could have done so. Gonzalez v. State, 680 S.W.3d 358, 377 (Tex.

App.—Eastland 2023, pet. ref’d).

ANALYSIS

In this appeal, appellant contends the evidence is insufficient to support the

jury’s rejection of his claim that he acted in defense of Jennifer. Appellant argues

his conduct was subjectively and objectively reasonable under the circumstances.

He contends he had a subjective belief Jennifer was telling him the truth about

James’s abuse of her and a belief intervention was immediately necessary to save

her life on the morning of October 9. He maintains his subjective beliefs were

objectively reasonable.

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Here, the jury could have rationally determined it was unreasonable for

appellant to have believed James was abusing Jennifer and planning to kill her and/or

have her gang raped. Appellant did not witness any abuse first hand. The jury could

have found it unreasonable for him to believe that James, an IT professional for a

major airline, would leave an extensive digital trail of his abuse. Further, there was

evidence that during the time Jennifer was claiming she was a frequent victim of

gang rape arranged by her husband, she and appellant were having erotic

conversations and exploring a dominant-submissive relationship. Jennifer even told

appellant she wanted to participate in a rape fantasy. Or the jury could simply have

believed that appellant wanted James out of his way so he could have Jennifer to

himself. The fact that he fled back to Tennessee after the shooting is inconsistent

with his claim he truly believed Jennifer was in danger.

In addition, even if appellant could have reasonably believed James presented

a threat to Jennifer on the day of the murder, the jury could have concluded it was

not objectively reasonable for him to believe deadly force was immediately

necessary at the time of the shooting. Appellant claimed he learned of the events

planned for October 9 about a week ahead of time. Instead of calling the authorities,

he drove from Tennessee to Dallas to kill James. He arrived in the middle of the

night and waited outside the Faiths’ home for an opportunity. He shot James as

James and Jennifer left their house to take a morning walk. Even if appellant

believed James was a monster, at that moment in time, James posed no threat to

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Jennifer. James was not going to drown Jennifer during an underwater gang rape

while they walked their dog in their neighborhood. Viewing all the evidence in the

light most favorable to the prosecution, a rational jury could have found beyond a

reasonable doubt the essential elements of murder and found against appellant on

the defense of a third person theory. We overrule appellant’s sole issue on appeal.

We affirm the trial court’s judgment.

/Amanda L. Reichek//
AMANDA L. REICHEK
230753f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

DARRIN LOPEZ, Appellant On Appeal from the 292nd Judicial
District Court, Dallas County, Texas
No. 05-23-00753-CR V. Trial Court Cause No. F21-75024.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Reichek. Justices Nowell and Carlyle
participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 11th day of December, 2024.

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