Edward Earl Washington, III v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-13-00050-CR

EDWARD EARL WASHINGTON, III APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1273131D

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Edward Earl Washington, III appeals his conviction for murder.

In four points, Washington argues that the evidence is insufficient to prove that

as a party to the offense, he possessed the requisite intent to commit murder;

that the trial court erred by declining to answer a question submitted by the jury

1
See Tex. R. App. P. 47.4.
to the trial court during deliberations; that the trial court erred by not including a

sudden-passion instruction in the jury charge at the punishment phase of trial;

and that the trial court erred by denying his motion for mistrial after a juror

reported having been contacted through social media by someone appearing to

be associated with one of the State’s witnesses. We will affirm.

II. BACKGROUND

Washington’s fellow gang member Clevin Brown Jr. (C.J.B.) shot and killed

Jamari Thomas in the early morning of March 14, 2011, during a brawl between

Washington and his cohorts and Thomas and his friends. The fight between the

two groups resulted from Thomas having apparently welshed on a bet between

him and Washington regarding the 2011 Super Bowl. In the weeks that followed

the 2011 Super Bowl, Washington increasingly harassed and threatened Thomas

because of his refusal to pay. Eventually, the two agreed to meet and “fight it

out.” During this meeting, the above-mentioned brawl ensued. After C.J.B. shot

and killed Thomas, the State charged Washington, as a party to the offense, with

murder and with engaging in organized criminal activity, to-wit: murder.

At trial, Jasmine Boston testified that Thomas was her boyfriend. Boston

said that she dated Thomas for a few years and that he was passionate about his

musical career. By Boston’s account, Thomas utilized a positive message in his

music and steered away from cussing and misogyny. Boston said that Thomas

made a $40 bet with Washington over the 2011 Super Bowl and that Thomas lost

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the bet. According to Boston, Thomas refused to pay Washington because the

bet was a “Facebook bet” and Thomas did not take the bet seriously.

Boston testified that a few weeks after the Super Bowl, Washington began

“harassing” Thomas over his refusal to pay and that Washington’s harassment

“started becoming an actual problem.” Boston said that Thomas told her that

Washington’s harassment involved “disturbing” text messages, including

Washington expressing his desire to fight Thomas for the $40.

Boston recalled that on March 13, 2011, Thomas performed at a rap

concert at a venue called Dreamworld. As Boston arrived, she encountered

Washington in the parking lot, and he made a derogatory comment regarding

Thomas. While in the club, Washington and C.J.B. approached Boston, and one

of them asked her for her number. They also expressed their knowledge that

she dated Thomas. Boston said that because of Washington’s and C.J.B.’s

presence, Thomas and his friends left the performance premises through the

back door because of fears that Washington wanted to get into a physical

altercation with Thomas.

Later that night, Boston, Thomas, and some of their friends were at

Thomas’s house. Boston said that at one point, Thomas received “at least 15”

calls from Washington’s phone but that Thomas ignored most of them. Boston

also said that Washington sent Thomas numerous text messages.

Boston averred that after these calls, she, Thomas, and two other friends

got into Thomas’s car in order to drive to a nearby 7-Eleven. Boston said she

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drove the car. While en route, Boston said that Washington’s name “[came] up.”

Boston said that as they arrived at the 7-Eleven, a vehicle was parked in an unlit

area of the parking lot that was shared between the 7-Eleven and a neighboring

school. She said that as they pulled into 7-Eleven, they purposely backed into a

parking spot in front of the store, “just being cautious of [their] surroundings.”

Boston testified that as they backed in, the car that had previously been

parked in the dark portion of the parking lot pulled in front of Thomas’s car,

blocking Thomas’s car from being able to leave. From there, one of the

occupants of that car came to the passenger side of Thomas’s vehicle, where

Thomas was sitting, grabbed Thomas’s head, and pulled him from the vehicle,

announcing to him that he was going to fight. Boston recognized the person as

C.J.B.

Boston averred that as C.J.B. fought with Thomas, she, the two other male

occupants from Thomas’s car, and other occupants from the car that had blocked

them in began to fight. Boston said that Washington was one of the assailants

from the car. Boston stated that Washington joined C.J.B. in his fight with

Thomas. According to Boston, during the scuffle, Washington retrieved a

“wooden plank” from the vehicle he had arrived in. Boston said that Washington,

armed with the wooden plank, attempted to strike Thomas from behind in the

head. But Boston said that she intervened by shoving Washington. A

photograph of the wooden plank was admitted into evidence and displayed to the

jury. Boston further testified that at that point, C.J.B. “pull[ed] out his gun and

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sho[t]” Thomas from about “12 feet” away. Boston said that suddenly she began

screaming, a girl got out of the blocking vehicle and pulled C.J.B. into it,

Washington “jumped into” it, and the vehicle sped away.

From there, Thomas’s other two friends put him in the backseat of his car,

and they drove to a nearby hospital. Boston testified that by that time, Thomas

appeared dead and that blood was coming from his mouth. When they arrived at

the hospital, hospital personnel took Thomas, and Boston talked to the police

about what had transpired. Boston also said that the next morning, police

interviewed her at the police station, where she gave her statement and that she

identified Washington from a photo array a few days later. Through the use of

trial exhibits, Boston diagramed for the jury the events that occurred at the 7-

Eleven that early morning.

Shawaiz Chowhan testified that around 3:00 a.m. on March 14, 2011, he

stopped for gas at the 7-Eleven where Thomas was shot. Chowhan said that as

he waited for his friend to pay for the gas, he noticed that a vehicle had backed

into a parking spot in front of the 7-Eleven. Chowhan described how the vehicle

Washington was in pulled up and blocked Thomas’s car, and he said that

multiple people got out of the car and began “punching” the occupants of

Thomas’s car. He averred that Washington had a “wooden pallet” or “two-by-

four,” and was “running at somebody [from Thomas’s car]” with it. Chowhan said

that an occupant of his car stated that they should leave because someone in the

scuffle had a gun. Chowhan recalled hearing “gunshots” and then “we were

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gone.” Chowhan described the people from the vehicle Washington was in as

the “aggressors” in the fight. He also said that preceding the fight, one of the

occupants of his own vehicle said that someone in Thomas’s car was arguing

with someone on the phone.

The State introduced photographs displaying Chowhan’s vehicle in relation

to where the two vehicles involved in the altercation were. Utilizing the

photograph, Chowhan demonstrated how Washington’s vehicle blocked

Thomas’s vehicle immediately prior to the altercation and shooting. Chowhan

said that the “shooter” definitely came from the vehicle Washington occupied.

Chowhan averred that after this occurred, he left abruptly and went to the local

police station to inform police what had transpired. While en route, an occupant

of his car called the police. Chowhan eventually returned to the 7-Eleven with

the police. He stated to the jury that when he returned, he saw a pool of blood

and the wooden plank he had seen one of the aggressors wielding earlier.

Chowhan confirmed that the wooden plank the State had introduced appeared to

be the one he saw that morning.

Arlington Police Department Corporal Ray Mullikin testified that he was a

member of the Department’s “gang unit.” According to Mullikin, Washington and

C.J.B. belonged to a gang named “Lynch Mob.” Mullikin testified that if someone

were to “[welsh]” on a bet with a member of Lynch Mob, his experience would

lead him to expect that the gang member would act out violently against the

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person who failed to pay. He also testified that it is not unusual for gangs like

Lynch Mob to enforce “respect” by retaliating for failure to pay debts.

Jordan McHenry testified that he had recently worked in the entertainment

industry and had gone to high school with both Washington and C.J.B. He also

knew Thomas. McHenry said that Thomas was a locally “well-known” rapper. He

said that he also had made bets on the 2011 Super Bowl with Thomas and

Washington through Facebook. McHenry said that he paid Washington but that

Thomas failed to pay either McHenry or Washington for losing the bets he made

with them. After Thomas failed to pay both McHenry and Washington, according

to McHenry, Washington began to text McHenry that he was angered that

Thomas had not paid. McHenry said that he believed that “something” would

happen but did not think it would be as serious as Thomas being shot.

McHenry testified that he hosted the event at Dreamworld the night

Thomas performed and Washington and C.J.B. approached Boston. By

McHenry’s account, Thomas left “out the back” after performing because of

Washington’s and C.J.B.’s presence.

Krys Trigg testified that he was Thomas’s best friend and that Thomas had

made him aware of the Super Bowl bet he had with Washington. Trigg said that

he knew of Washington’s affiliation with Lynch Mob and that Lynch Mob

members were known to carry weapons and “roll . . . real deep.” He averred that

Lynch Mob members were notorious for fighting and using overwhelming

numbers to defeat whoever they fought. Trigg said that after Thomas failed to

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pay Washington, Washington began to increasingly text Thomas with “details

about [how Washington] was going to kill [Thomas].” By Trigg’s account, he was

at the Dreamworld performance and saw Washington and C.J.B. there as well.

Trigg said that although he did not see the interaction, Thomas told him that as

he performed on stage, Washington and C.J.B. displayed “gang signs [and] the

gun sign” and otherwise indicated that they wanted to fight Thomas. Trigg said

that Thomas was so unnerved by C.J.B.’s and Washington’s actions that Thomas

wanted to leave shortly after performing.

Trigg averred that after Thomas left through the back door, he proceeded

out the front, encountering C.J.B. and Washington, and that he asked them what

their issue with Thomas was. According to Trigg, C.J.B. and Washington said

that they intended to fight Thomas regardless of Thomas’s desire not to fight.

Trigg said that at that time, C.J.B. prevented Washington from proceeding to the

parking lot to confront Thomas. Trigg also said that after the show, he, Thomas,

Boston, and a few other friends went back to Thomas’s house and that

Washington began to call and text Thomas incessantly. Thomas eventually

answered Washington’s call and agreed to fight Washington at the 7-Eleven, but

he expressed to Trigg that he really did not want to fight.

Trigg testified that as they approached the 7-Eleven, he saw a vehicle

parked in the darker area of the parking lot adjoining the 7-Eleven. Trigg said

that after they arrived, they did not initially back into the parking spot and that, not

knowing that the vehicle in the dark was occupied by Washington and his

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comrades, Thomas called Washington to inquire where he was. Trigg averred

that Washington insisted that they come to the darker part of the parking lot, but

Thomas insisted that they meet in the lit area. Because things did not “feel right,”

Trigg suggested that they re-park the vehicle by backing into the parking spot so

that they could leave in a hurry if necessary. At that time, the vehicle

Washington was in pulled up and blocked Thomas’s vehicle so that they could

not leave. Suddenly, C.J.B. jumped out of the blocking vehicle, came to the

passenger side of Thomas’s car, declared to Thomas that he was “fixing to fight,”

shouted at Thomas that he needed to get out, and then proceeded to wrestle him

out of the car. From there, Trigg said a melee broke out among multiple people

from both vehicles. During the melee, Trigg pulled C.J.B. off of Thomas, and

then C.J.B. pulled out a gun. Trigg said that both he and Thomas attempted to

wrestle the gun away from C.J.B. Trigg stated that during the struggle, he was

knocked down by someone hitting him in the head. He testified that he then saw

Thomas and C.J.B. struggling with the gun and that then he heard the gun go off.

Trigg said that from his perspective, C.J.B. intentionally shot Thomas. By Trigg’s

account, as C.J.B. got up, Thomas also attempted to get up but could not; Trigg

could see blood coming out of Thomas’s mouth. According to Trigg, after C.J.B.

shot Thomas, Washington attempted to hit Thomas as Boston interfered and

C.J.B. went “back over [toward Thomas] with his gun.” Trigg averred that C.J.B.

appeared to be attempting to shoot Thomas a second time. A girl from the

vehicle Washington and C.J.B. had arrived in, however, grabbed C.J.B. before

9
he could shoot again and shoved him in their car, the rest of the occupants joined

them, and the car sped away.

Arlington Police Department Detective Lisa Terro testified that the

department assigned her to investigate Thomas’s homicide. Terro said that Trigg

and Boston had identified C.J.B. and Washington as two of the individuals who

were involved in the melee on the morning Thomas was shot and that Boston

had identified C.J.B. as the person who shot Thomas. Terro also said that both

C.J.B. and Washington were known Lynch Mob gang members. During her

testimony, the State introduced records containing the contents of Washington’s

cell phone, including texts between Washington and multiple people during the

time between the Super Bowl at the end of January and when Thomas was shot.

Terro testified that the text messages demonstrated that Thomas had

made a bet with Washington regarding the 2011 Super Bowl, that Thomas had

refused to pay his debt to Washington, that Washington had threatened Thomas

due to his failure to pay, that Washington had inquired of others about Thomas’s

whereabouts, and that Washington had informed others that he was going to kill

Thomas in order to protect his reputation. One text in particular read that

Washington would not be concerned if Thomas wore a bullet-proof vest because

Washington bragged that he took “head shots.”

Another text from Washington indicated that he was not willing to only

“hospitalize” Thomas because Thomas would be able to “put [Washington] in jail”

but that “[a] dead man tells no tales.” On the night Thomas performed at

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Dreamworld, Washington texted his own girlfriend stating that he would need her

to call his mom if he went to jail because he was going to shoot someone that

night. Washington even texted his girlfriend where she could find bail money.

The texts reveal that after Thomas was shot, Washington texted his

girlfriend with a text reading, “I shot him.” Then later Washington texted

someone and asked them not to mention that Thomas was murdered because of

a Facebook bet, and later Washington texted someone and asked him to provide

him an alibi for the time Thomas was shot. Shortly thereafter, Washington texted

someone that he was going to go to jail for murder. When the individual texted

back asking who Washington had killed, Washington said that he had left

Thomas “dead on [the] curb” because Thomas owed him money.

Washington also later texted his girlfriend, asking that he and C.J.B. be

allowed to “cool off” at her place while the police looked for them. Later,

Washington texted his girlfriend and said that one of the guys that was with them

at the 7-Eleven shooting had “snitched” on him.

During jury deliberations on guilt-innocence, the jury sent several notes to

the trial court requesting additional information, instruction, and review of portions

of the evidence. One such note requested a clarification on the court’s charge.

Specifically, the jury note inquired whether the charge’s deadly-weapon

language, “to-wit, firearm” meant that the only deadly weapon in the charge was

a firearm, or that a firearm was an “example” of a deadly weapon. The trial court

declined to answer the question and instead referred the jury back to the court’s

11
charge. Washington objected that the trial court needed to clarify the law for the

jury, and the trial court overruled the objection.

The jury returned a verdict of not guilty regarding the engaging in criminal

activity charge and a verdict of guilty on the murder charge under a party-to-the-

offense theory. During the charge conference on punishment, Washington’s

attorney requested a sudden-passion instruction, arguing that there was at least

some evidence that C.J.B. had shot Thomas because he was provoked by the

other occupants of Thomas’s car having joined in the melee. The trial court

denied the request.

During the punishment phase, Juror Number Two notified the court that

she had been contacted by someone she did not know via the social network

"Instagram." The juror stated that she had been sent a friend request from

someone going by the moniker “1Yungmon,” a person she did not know. While

reviewing the friend request from 1Yungmon, the juror recognized that two

photographs on the account contained Boston, Thomas’s girlfriend and the

State’s first witness during the guilt-innocence phase of trial. Juror Number Two

explained to the court that she did not know who 1Yungmon was, that she did not

know if it was someone associated with the case attempting to contact her, and

that she had not had any communication with this person. She stated that she

had not seen any pictures or otherwise received information from this friend

request that was in any way related to the case. And Juror Number Two stated

that she did not believe that 1Yungmon was Boston nor did she believe that

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Boston was attempting to contact her. The juror averred that the contact from

1Yungmon would not have any effect on her deliberations and that she would be

able to maintain her fairness and impartiality.

Washington moved for a mistrial and an acquittal based on Juror Number

Two’s revelation concerning the Instagram friend request, and the trial court

denied Washington’s motion. The trial court did, however, offer the less extreme

measure of unseating Juror Number Two and replacing her with the alternate

juror. Both the State and Washington declined this remedy, and the trial court

ruled that Juror Number Two would remain a juror in the case. Eventually, the

jury returned a sentence of 35 years’ incarceration and a $10,000 fine. The trial

court entered judgment accordingly, and this appeal followed.

III. DISCUSSION

A. Sufficiency of the Evidence of an Intent to Kill

In his first point, Washington argues that “there does not exist a modicum

of evidence to reflect an intentional or knowledgeable killing or desire to cause

serious bodily injury by [C.J.B.] in shooting [Thomas] because the evidence only

reflected an accidental shooting while [C.J.B.] and [Thomas] were wrestling over

the gun.” We disagree.

A person commits murder if he (1) intentionally or knowingly causes the

death of an individual or (2) intends to cause serious bodily injury and commits

an act clearly dangerous to human life that causes the death of an individual.

See Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013); Nelson v.

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State, 405 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d); see

also Tex. Penal Code Ann. § 19.02(b)(1) & (2) (West 2011).

The intent to kill may be inferred from the use of a deadly weapon unless it

would not be reasonable to infer that death or serious bodily injury could result

from the use of the weapon. See Ervin v. State, 333 S.W.3d 187, 200 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d), cert. denied, 131 S. Ct. 2992 (2011).

Intent may also be inferred from the means used and the wounds inflicted. See

Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974). Indeed, "when a

deadly weapon is fired at close range, and death results, the law presumes an

intent to kill." See Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston

[1st Dist.] 2009, pet. ref’d).

To determine whether an individual is a party to an offense, the reviewing

court may look to events before, during, and after the commission of the offense.

Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). There must be

sufficient evidence of an understanding and common design to commit the

offense. Id. Evidence may be direct or circumstantial. See id. Each fact need

not point directly to the guilt of the defendant as long as the cumulative effect of

the facts is sufficient to support the conviction under the law of parties. Id. But

the mere presence of a person at the scene of a crime, or even flight therefrom,

without more, is insufficient to support a conviction as a party to the offense. Id.

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

14
determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Blackman v.

State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).

The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393

S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Temple, 390 S.W.3d at 360.

Washington does not dispute that C.J.B. shot and killed Thomas, but he

contends that the evidence is insufficient to support his conviction because,

according to Washington, the evidence establishes that C.J.B. shot Thomas

15
accidently and therefore did not possess the requisite intent to commit murder.

In support of this argument, Washington cites to Trigg’s testimony that the gun

“went off” while C.J.B. and Thomas “wrestl[ed] on the ground over the gun.”

Thus, according to Washington, there is no evidence that he or C.J.B. intended

for C.J.B. to shoot Thomas.

But Trigg specifically testified that not only did he believe that C.J.B.

intentionally shot Thomas when the gun “went off” but that C.J.B. attempted to

shoot Thomas a second time and was thwarted by a female occupant of the

vehicle C.J.B. and Washington arrived in. Further, Trigg testified that even after

C.J.B. shot Thomas, Washington tried to strike Thomas but that his attempts to

further injure Thomas were thwarted by Boston. Thus, contrary to Washington’s

argument, Trigg’s testimony supplied the jury with evidence of Washington’s

attempt to aid C.J.B. in committing the offense with the intent to promote or assist

the commission of the murder. See Gross, 380 S.W.3d at 186.

Moreover, events before, during, and after Thomas was shot support the

inference of Washington’s participation in a common design to murder Thomas.

See Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994), cert. denied,

519 U.S. 1030 (1996) (“In determining whether the accused participated as a

party, the court may look to events occurring before, during and after the

commission of the offense, and may rely on actions of the defendant which show

an understanding and common design to do the prohibited act.”). Here, the State

introduced evidence that Washington had threatened to kill Thomas prior to the

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shooting because of Thomas’s failure to pay his debt on the Super Bowl bet.

The State also elicited testimony that C.J.B. and Washington had displayed a

“gun sign” directed at Thomas on the night Thomas performed at Dreamworld.

The record evidence also demonstrates that Washington believed that he had to

kill Thomas in order to protect his reputation, that he had informed his girlfriend of

his intent to kill Thomas the night before Thomas was shot, that he had informed

his girlfriend of where she could acquire bail money in case he was arrested for

murdering Thomas, and that he bragged about killing Thomas after the melee.

Furthermore, record evidence demonstrates that Washington attempted to hide

from the police with C.J.B. at the house of Washington’s girlfriend and that he

asked someone to provide a false alibi for him. See id., 920 S.W.2d at 302

(reasoning that acts designed to reduce the likelihood of prosecution, conviction,

or incarceration for the offense on trial demonstrate a consciousness of guilt).

Viewing all of the evidence in the light most favorable to the jury’s verdict,

we conclude that a rational trier of fact could have reasonably found that C.J.B.

intended to shoot Thomas and that Washington committed the offense of murder

as a party to the offense. See Smith v. State, 187 S.W.3d 186, 192 (Tex. App.—

Fort Worth 2006, pet ref’d) (holding evidence sufficient to support conviction for

capital murder under law of parties where defendant and cohorts robbed store

clerk and one of defendant’s cohorts took victim to back room and shot him in his

chest and head). We overrule Washington’s first point.

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 B. The Trial Court Referring the Jury to the Court’s Charge

In his second point, Washington argues that the trial court reversibly erred

by refusing to answer one of the jury’s questions and instead referring the jury to

the court’s original charge.

Here, during deliberations on guilt or innocence, the jury sent this note to

the trial court:

In the law, there is a section that states ‘. . . to-wit, a firearm . . .’
does ‘to-wit’ specify firearm; meaning the charge is only . . . for the
firearm. Or does ‘to-wit’ mean an example of [sic] is a firearm.

Rather than answering the question, the court instructed the jury to

continue its deliberations and to refer to the court’s charge. Citing cases that

stand for the proposition that a trial court may not generally answer a jury’s note

by making an improper comment on the weight of the evidence, Washington

argues that the trial court’s refusal to answer the question left the jury with a

misperception of the law and that the jury could have reached a guilty verdict

based on Washington or C.J.B. having used a different weapon other than a

firearm. See Lucio v. State, 353 S.W.3d 873, 877 (Tex. Crim. App. 2011) (“[T]he

trial court did not improperly comment on the weight of the evidence in its

answer, which provided a correct statement of the law without expressing any

opinion as to the weight of the evidence or assuming the existence of a disputed

fact.”). We disagree.

The jury is bound to be governed by the law it receives from the court.

Tex. Code Crim. Proc. Ann. art. 36.13 (West 2007); Lucio, 353 S.W.3d at 875;

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Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986). Although the trial

court ordinarily provides instructions to the jury in their entirety before the jury

retires to deliberate, the court may give further written instructions upon the jury’s

written request for additional guidance regarding applicable law. See Tex. Code

Crim. Proc. Ann. art. 36.16 (West 2006) (providing that court may give “further

charge” to jury upon jury’s request after parties finish closing arguments). When

the trial court responds substantively to a question the jury asks during

deliberations, that communication essentially amounts to a supplemental jury

instruction, and the trial court must follow the same rules for impartiality and

neutrality that generally govern jury instructions. See Daniell v. State, 848

S.W.2d 145, 147 (Tex. Crim. App. 1993).

A trial court’s decision to provide a written response, however, is within its

discretion. See Allaben v. State, 418 S.W.2d 517, 520–21 (Tex. Crim. App.

1967) (recognizing that a trial court has discretion to refuse to answer the jury by

referring jurors to the court’s charge when it deems the jury’s questions to be

improper). In addition, it is well-settled that when communications between the

court and jury do not amount to an additional instruction, noncompliance with

provisions of the procedural statute governing jury communications with the court

is not reversible error. See generally Tex. Code Crim. Proc. Ann. art. 36.27

(West 2006) (prescribing process by which jury may communicate with trial

court); see also McFarland v. State, 928 S.W.2d 482, 517–18 (Tex. Crim. App.

1996), cert. denied, 519 U.S. 1119 (1997), overruled on other grounds by Mosley

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v. State, 983 S.W.2d 249, 264 n.18 (Tex. Crim. App. 1998), cert. denied, 526

U.S. 1070 (1999).

Here, it is evident from the record that the court’s response did not

constitute additional instructions. As the court of criminal appeals has stated, “[A]

refusal to answer the jury question does not constitute additional

instructions . . . , nor is a referral to the original charge considered an additional

instruction.” See Allaben, 418 S.W.2d at 520; see also Nacol v. State, 590

S.W.2d 481, 486 (Tex. Crim. App. 1979) (holding that trial court did not err by

instructing jury, “You are only to consider what is contained in the charge”); see

also Gillett v. State, 663 S.W.2d 480, 481 (Tex. App.—Corpus Christi 1983, no

pet.) (affirming trial court’s instruction that jury was to follow the charge only);

Phillips v. State, 654 S.W.2d 846, 848 (Tex. App.—Dallas 1983, no pet.) (holding

trial court did not err by instructing jury that it was its duty to follow the charge).

Thus, the trial court was within its discretion to refer the jury to the court’s charge

and it did not commit reversible error by declining to further instruct the jury in

response to the jury’s note. See McFarland, 928 S.W.2d at 517–18. We

overrule Washington’s second point.

C. Sudden Passion

In his third point, Washington contends that “[b]ecause th[e] evidence

raised the possibility of sudden passion, the trial court reversibly erred in refusing

the requested instruction.” Washington’s argument is that, even though C.J.B.

dragged Thomas from his car and began to fight him, C.J.B. did not draw his gun

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until after the other occupants of Thomas’s car began to fight with C.J.B.; thus,

Washington argues, C.J.B. “did not act to obtain the weapon until he was in fear

for his life.” Washington argues that this evidence entitled him to a sudden-

passion instruction. We disagree.

During the punishment phase of trial, a defendant may argue that he

caused the death while under the immediate influence of sudden passion arising

from an adequate cause. McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim.

App. 2005); see also Tex. Penal Code Ann. § 19.02(d) (West 2003). “Sudden

passion” is “passion directly caused by and arising out of provocation by the

individual killed or another acting with the person killed which passion arises at

the time of the offense and is not solely the result of former provocation.” Tex.

Penal Code Ann. § 19.02(a)(2). “Adequate cause” is “cause that would

commonly produce a degree of anger, rage, resentment, or terror in a person of

ordinary temper, sufficient to render the mind incapable of cool reflection.” Id.

§ 19.02(a)(1). Sudden passion is a mitigating factor that, if found by the

factfinder to have been proven by a preponderance of the evidence, reduces the

offense from a first-degree felony to a second-degree felony. See id. § 19.02(c),

(d).

A trial court should include a sudden-passion instruction in the charge if it

is raised by the evidence, even if that evidence is weak, impeached,

contradicted, or unbelievable. Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim.

App. 2003). But the evidence cannot be so weak, contested, or incredible that it

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could not support such a finding by a rational jury. McKinney, 179 S.W.3d at

569. Therefore, to be entitled to a jury instruction on sudden passion, the

evidence must exist in the record that there was an adequate provocation; that a

passion or an emotion such as fear, terror, anger, rage, or resentment existed;

that the murder occurred while the passion still existed and before there was

reasonable opportunity for the passion to cool; and that there was a causal

connection between the provocation, the passion, and the murder. Id.

Furthermore, one who provokes or instigates a confrontation cannot claim

sudden passion to excuse his actions. See Westbrook v. State, 846 S.W.2d 155,

159 (Tex. App.—Fort Worth 1993, no pet.). Stated another way, the provocation

must not have been itself provoked by the person seeking to avail himself of the

sudden-passion instruction to the jury. Willis v. State, 936 S.W.2d 302, 308–09

(Tex. App.—Tyler 1996, pet. ref’d). When an appellant creates the

circumstances that inflame his passion, a charge on sudden passion is not

required. Id. at 309.

We review a trial court’s decision whether to instruct the jury on a

defensive issue, such as sudden passion, for an abuse of discretion. See Love

v. State, 199 S.W.3d 447, 455 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)

(citing Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000), cert.

denied, 532 U.S. 944 (2001)). In reviewing a case involving a sudden-passion

jury charge, it is our duty to focus on the evidence supporting that charge, not on

the evidence refuting it. Trevino, 100 S.W.3d at 239.

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 Here, the only evidence that Washington points to is the fact that C.J.B. did

not pull the gun out of his pants until after the other occupants of Thomas’s car

began to fight with C.J.B. Specifically, Washington argues that the evidence is

“undisputed” that C.J.B. pulled the gun out of his pants “out of fear, terror, anger

or resentment” once Trigg and Boston joined the ruckus. Washington, however,

points to no evidence in the record that C.J.B. acted out of “fear, terror, anger or

resentment.” Furthermore, C.J.B.’s prior provocation is shown by the fact that he

deliberately set out to fight Thomas by opening the car door and pulling Thomas

out of the car, insisting that they were going to fight. Moreover, the evidence of

when C.J.B. pulled the gun out of his pants does not indicate that Thomas or

anyone in Thomas’s vehicle did anything new that would give rise to sudden

passion after both parties arrived at the 7-Eleven and C.J.B. began to fight

Thomas. See Westbrook, 846 S.W.2d at 159 (“[T]he evidence Westbrook relies

on does not indicate that upon arrival at the motel Willingham or Autrey did

anything new that would give rise to sudden passion.”). Thus, we hold that there

is no evidence of sudden passion and that therefore the trial court properly

refused to include a sudden-passion instruction in the jury charge. We overrule

Washington’s third point.

D. Denial of Mistrial Regarding Juror Number Two

In his fourth point, Washington argues that the trial court erred by denying

his motion for mistrial. Washington argues that a mistrial and an acquittal was

warranted in this case because Juror Number Two received a friend request via

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Instagram from a person who Washington claims was Boston, the State’s first

witness—the juror also saw two pictures of Boston while reviewing the request.

Washington argues that this amounted to improper outside influence on the jury.

The State argues that when viewing the evidence in the light most

favorable to the trial court’s ruling, the trial court did not abuse its discretion

because the evidence did not establish that it was Boston who sent the request

and because Juror Number Two testified that she had not received any

information about the case from the request and that the contact would not have

any impact on her ability to be fair and impartial in her deliberations. The State

further argues that there were less drastic alternatives than a mistrial that

Washington could have asked for, and in fact, Washington turned down the trial

court’s offer to remove the juror and seat the alternate juror. We agree that the

trial court did not abuse its discretion.

A mistrial is an extreme remedy for prejudicial events occurring during the

trial process. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). It is

a device used to halt trial proceedings when error is so prejudicial that

expenditure of further time and expense would be wasteful and futile. Ladd v.

State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070

120 S. Ct. 1680 (2000). Only when it is apparent that an objectionable event at

trial is so emotionally inflammatory that curative instructions are not likely to

prevent the jury from being unfairly prejudiced against the defendant is a trial

court required to grant a mistrial. Bauder, 921 S.W.2d at 698. The denial of a

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motion for mistrial is reviewed under an abuse-of-discretion standard. Grotti v.

State, 209 S.W.3d 747, 776 (Tex. App.—Fort Worth 2006) affirmed by Grotti v.

State, 273 S.W.3d 273, 283–84 (Tex. Crim. App. 2008).

A juror must make decisions at the guilt–innocence and punishment

phases using information obtained in the courtroom: the law, the evidence, and

the trial court’s mandates. Granados v. State, 85 S.W.3d 217, 235 (Tex. Crim.

App. 2002), cert. denied, 538 U.S. 927 (2003). “No person shall be permitted to

converse with a juror about the case on trial except in the presence and by the

permission of the court.” Tex. Code Crim. Proc. Ann. art. 36.22 (West 2006); see

also Tex. R. App. P. 21.3(f) (providing that defendant must be granted new trial

when juror has talked with anyone about case). The primary goal of article 36.22

is to insulate jurors from outside influence. Chambliss v. State, 647 S.W.2d 257,

266 (Tex. Crim. App. 1983); cf. Gomez v. State, 991 S.W.2d 870, 872 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d), cert. denied, 528 U.S. 1157 (2000)

(holding that no violation of article 36.22 existed where two jurors discussed case

with each other in public place). “Therefore, if a violation is shown, the

effectiveness of possible remedies will be determined in part by whether the

conversation influenced the juror.” Ocon v. State, 284 S.W.3d 880, 884 (Tex.

Crim. App. 2009).

When a juror converses with an unauthorized person about the case,

“injury to the accused is presumed” and a mistrial may be warranted. Robinson

v. State, 851 S.W.2d 216, 230 (Tex. Crim. App. 1991), cert denied, 512 U.S.

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1246 (1994). To invoke this presumption, the defendant must show the

communication involved matters concerning the defendant’s trial. Chambliss,

647 S.W.2d at 266. We presume harm even when the communication does not

rise to the level of a full-blown conversation or discussion of the specifics of a

given case. McIntire v. State, 698 S.W.2d 652, 659 (Tex. Crim. App. 1985). But

the State may rebut this presumption of harm by showing that the defendant has

not been injured, i.e., “that the case was not discussed or that nothing prejudicial

to the accused was said.” Green v. State, 840 S.W.2d 394, 406 (Tex. Crim. App.

1992), cert. denied, 507 U.S. 1020 (1993). Compare Gates v. State, 24 S.W.3d

439, 443 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (holding that State

rebutted presumption when victim’s son communicated with juror prior to his

testimony at trial because only new information son conveyed to juror was that

son was witness in case), with Ites v. State, 923 S.W.2d 675, 676 (Tex. App.—

Houston [1st Dist.] 1996, pet. ref’d) (reversing trial court’s judgment because

State failed to rebut presumption of harm when defendant’s son ran in front of

jurors, saying that if he had to spend an hour with his father, he would kill himself,

where defendant was being tried for aggravated sexual assault of his daughter

and son had been sworn in as witness). “If evidence is in the record that rebuts

the presumption of harm, it should be considered, whether presented by the

State or the defense.” Alexander v. State, 919 S.W.2d 756, 767 (Tex. App.—

Texarkana 1996, no pet.). When determining whether the State sufficiently

rebutted the presumption of harm, we view the evidence in the light most

26
favorable to the trial court’s ruling and defer to the trial court’s resolution of

historical facts and its determinations concerning credibility and demeanor.

Quinn v. State, 958 S.W.2d 395, 401–02 (Tex. Crim. App. 1997).

Here, there is no evidence that Juror Number Two communicated with

anyone about Washington’s case outside the confines of the trial itself. Juror

Number Two testified that she did not know who had sent her the Instagram

friend request, that she had not communicated with the person behind the

request, and that she had not seen or reviewed any content from the request

“that could be related to this particular case.” Thus, Washington has failed to

invoke the presumption that he was injured by the Instagram friend request sent

to Juror Number Two. See Chambliss, 647 S.W.2d at 266. But even assuming

that the presumption that Juror Number Two communicated with an unauthorized

person was invoked, the juror’s testimony to the trial court was that she had not

discussed the case with the person behind the request and that nothing

prejudicial about the accused was said or communicated. See Green, 840

S.W.2d at 406. Furthermore, although the trial court did not grant a mistrial and

enter a judgment of acquittal as Washington requested, the trial court did offer

the curative measure of removing Juror Number Two from the panel and allowing

the alternate juror to be seated, but both the State and Washington declined this

curative measure. See Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App.

2004) (“[W]hen a party’s first action is to move for mistrial . . . the scope of

appellate review is limited to the question whether the trial court erred in not

27
taking the most serious action of ending the trial.”). And it was within the trial

court’s discretion to believe Juror Number Two’s testimony that she had not

discussed the case with anyone related to it and that she could maintain her

fairness and impartiality. See Quinn, 958 S.W.2d at 401–02. We hold that the

trial court did not abuse its discretion by denying Washington’s motion for

mistrial. We overrule Washington’s fourth point.

IV. CONCLUSION

Having overruled all four of Washington’s points on appeal, we affirm the

trial court’s judgment.

PER CURIAM

PANEL: MEIER, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 12, 2015

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