Markailon Adrell Dailey v. State

Affirmed and Opinion Filed July 16, 2018

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00016-CR

MARKAILON ADRELL DAILEY, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F13-45287-L

MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Whitehill
Opinion by Justice Whitehill
A jury convicted appellant of murder and assessed punishment at fifty-five years

imprisonment.

Four of appellant’s issues argue that the charge was erroneous because: (i) the self-defense

instruction followed the murder and transferred intent application paragraphs; (ii) self-defense and

culpable mental state instructions were not included in the transferred intent application paragraph;

(iii) the self-defense instruction did not include murder committed under penal code §19.02(b)(2),

and (iv) the self-defense instruction referenced but did not provide the elements for robbery or

aggravated robbery or apply them. Appellant’s fifth issue argues that the prosecutor made an

improper argument that violated his “constitutional right to be presumed innocent.”
 We conclude the charge was not erroneous because of the order in which the instructions

were given or by failing to include self-defense or mental state instructions in the transferred intent

paragraph. Although the court erred by failing to include §19.02(b)(2) murder and the elements

of robbery and aggravated robbery in the self-defense instruction, appellant did not suffer

egregious harm. Finally, we conclude that appellant’s complaint about improper argument was

not preserved for our review; and, even had it been preserved, the argument was not a willful and

calculated effort to deprive appellant of a fair trial that caused him harm. We therefore affirm the

trial court’s judgment.

I. BACKGROUND

Lyndarrious Bray was found dead behind an ice skating rink. He had been shot four times;

in the forehead, neck, head, and chest. Three bullets were recovered from his body.

Brenda King lived in a fourth floor apartment behind the ice rink, and her patio faced the

ice rink parking lot. On the night in question, King heard a series of loud noises that sounded like

firecrackers. She walked onto her patio and looked at the “backside of the skating rink.” She saw

a young man lying on the ground and a “guy” standing over him. The man who was standing

started pacing, and Green realized that the sounds she heard were gunshots. She could not see

whether the man standing over the body had anything in his hands, but she saw that he was wearing

a white shirt, white pants, and white shoes.

King then saw four kids come “out of nowhere” and look at the man who had been pacing.

Nobody checked the body for a pulse. The group, which consisted of “very young boys,” walked

toward the dumpster and began pushing each other.

King also saw a tall thin man come out from behind the dumpster. The man was not part

of the group, and no one reacted to him. “All of the sudden” the man was gone.

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 A “bronze-orange” car pulled out from the side of the building. Although King could not

see the driver, a female passenger with long blonde hair yelled, “Hurry up and get on the car.” The

five young men got into the backseat of the car and it drove away.

Officer Jerry Childree heard the shooting broadcast over the radio, and encountered

appellant and Chris Kyle going towards the skating rink approximately 100-200 yards away.

Appellant told Childree he had a phone call about a shooting and was there to check on a friend

named “Lyn.”

Appellant agreed to go to the police station for an interview. He was wearing a white shirt,

gray pants, a white watch, white belt, and white shoes. When alone in the interview room,

appellant slept, cleaned his shoes, counted his money, and prayed for forgiveness.

Detective Adam Perry interviewed appellant, who answered questions by repeating them.

In Perry’s experience, that behavior is a stall tactic. Although appellant claimed that he witnessed

his “brother [‘s]” murder, his demeanor was not appropriate for someone who had experienced

such a thing.

Initially, appellant told Perry that he had gone behind a wall to urinate and discovered Bray

had been shot when he returned. But he told several different stories in a subsequent interview.

One account involved a man with a shotgun. Another account involved an accident, and another

a robbery. Still another involved the possibility of Bray robbing someone. At some point,

appellant said he was present when Bray was shot, but Kyle prevented him from walking to the

body. Appellant also gave conflicting statements about whether Bray had a gun at the time of the

shooting. Appellant also spoke of a white drug dealer that Perry identified as Christian Tippett.1

1
The police later concluded that Tippitt was not involved because they could not place him at the scene.

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 Chris Kyle testified that he had known appellant since 2011 and would hang out with him

every other weekend. On the night of Bray’s murder, Kyle, appellant, Ashlee Green, and Bray

went to the skating rink so that Bray and appellant could conduct a drug deal.

They parked the car near a dumpster, and Bray volunteered to go with appellant to conduct

the deal. Green remained in the driver’s seat, and Kyle was in the backseat talking to his girlfriend

on the phone.

After about ten minutes, Kyle heard three or four gunshots. Green started to drive away,

but turned around when she saw appellant in her rearview mirror. Kyle initially said he did not

see appellant with a gun, but later said he did. He admitted that the latter was a lie that he told

police because he was trying to save himself.

Kyle got out of the car and asked what happened. Appellant responded that “they” or

“someone” shot “my bro.” Kyle and appellant yelled at each other, and he pushed appellant to the

ground. After appellant got up, they got into the car and Green drove away.

Green dropped Kyle and appellant at appellant’s grandmother’s apartment. No one was

home, so Kyle and appellant walked back to the ice rink where they encountered the police officers

who arrested them.

According to Kyle, he and appellant were “messed up,” and “not in the right state of mind”

that night because they had smoked marijuana and taken Xanax. Appellant had also been drinking.

Ashlee Green was appellant’s “on and off” girlfriend. She had been with appellant

throughout the day, driving her Orange Cobalt. They picked up Bray and Kyle because Bray

wanted to do a drug deal.

According to Green, appellant was on the phone with a guy known as “Snow White,” or

“White Boy,” who wanted to meet at Kroger for the drug deal. But “White Boy” later changed

the deal’s location to the alley behind the ice rink.

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 Appellant and Bray got out of the car at the ice rink. After a while, Green heard gunshots,

and a little later, heard appellant scream. She drove in the direction appellant and Bray had gone,

but saw appellant in her rearview mirror and turned around. Appellant did not have a gun when

she saw him.

Green drove to appellant’s grandmother’s apartment. Appellant was screaming, “They

shot my n–” repeatedly. No one was at home at appellant’s grandmother’s house, and appellant

and Kyle just walked away.

Green later told the police that appellant had a problem with Bray concerning money and

Bray had stolen appellant’s IPad. Appellant had also confronted Bray about taking Granny B’s

(appellant’s grandmother) stuff.

Green admitted that on the Wednesday or Thursday before the shooting, appellant and Bray

were in the same house and both of them were texting her. She received a text message from

appellant’s phone that said, “Please come and get me or it will be a murder case.”

She also told the police that it was probably appellant who had the gun, and after the

shooting, she saw appellant pulling the bullets out of the gun by the trash can. She said she thought

[the situation] was about appellant “confronting, trying to be a boss man, trying to make a point to

everyone that he’s not playing no more.” When asked if she thought appellant would tell the truth

when he talked to police, Green replied, “Hell no.” At trial, however, Green claimed she did not

remember much of what she told the police.

Tippitt admitted to taking an unloaded shotgun to a different drug deal. But he testified

that he was not present behind the ice rink when Bray was killed, he did not take his shotgun there

to threaten anyone, and he did not attempt to rob anyone.

A couple of weeks after the murder, Detective Perry received a call from the owner of

appellant’s grandmother’s apartment complex. Perry went to the complex and found a nine-shot

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.22 caliber revolver buried in the flowerbed in front of the leasing office. The gun had seven empty

chambers in the cylinder, and Perry sent it to ballistics for analysis.

Six shell casings and one live cartridge were recovered from the crime scene. All were .22

caliber.

The ballistics analyst could not identify or eliminate the revolver found at the apartments

as having fired the bullets recovered from Bray’s body. But it was included as one of the possible

firearms that could have fired those bullets. The revolver holds nine cartridges that have to be

manually loaded. So if the trigger was pulled nine times, the cartridge cases would not come out

unless one manually opened the action and removed them.

The analyst examined six cartridge cases. Three were identified as having been fired from

the .22 revolver. One of the cartridges recovered at the crime scene had also been fired from that

gun. The analyst was unable to identify or eliminate the remaining two cartridges as having been

fired from the gun. None of these cartridges were fired from a shotgun.

Perry also discovered text messages between appellant and others in which appellant

suggested he was going to kill Bray because he owed him money.

When the evidence concluded, the jury convicted appellant of murder, and subsequently

assessed punishment at fifty-five years imprisonment.

II. ANALYSIS

A. Charge Error

The indictment alleged that appellant caused LB’s death by (i) intentionally and knowingly

shooting him with a firearm, or (ii) intended to cause Bray serious bodily injury and committed an

act clearly dangerous to human life by shooting Bray with a firearm and causing his death.

The charge tracked the statutory language for both types of murder alleged in the

indictment, see TEX. PENAL CODE § 19.02(b)(1), (b)(2), and included definitions for knowing,

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intentional, and reckless mental states. It also included instructions on self-defense, transferred

intent, and manslaughter.

Appellant’s first four issues argue that the trial court’s charge was erroneous because: (i)

the self-defense instruction followed the murder and transferred intent application paragraphs; (ii)

self-defense and culpable mental state instructions were not included in the transferred intent

application paragraph; (iii) the self-defense instruction did not include murder committed under

penal code §19.02(b)(2), and (iv) the self-defense instruction referenced but did not provide the

elements for robbery or aggravated robbery or apply them.

1. Standard of Review and Applicable Law

“Where, as here, the defendant did not raise a timely objection to the jury instructions,

reversal is required only if the error was fundamental in the sense that it was so egregious and

created such harm that the defendant was deprived of a fair and impartial trial.” Villarreal v. State,

453 S.W.3d 429, 433 (Tex. Crim. App. 2015).

Error is egregiously harmful if it affects the very basis of the case, deprives the defendant

of a valuable right, or vitally affects a defensive theory. See, e.g., Nava v. State, 415 S.W.3d 289,

298 (Tex. Crim. App. 2013).

In making an egregious harm determination, we examine (i) the entire charge; (ii) the state

of the evidence, including contested issues and weight of the evidence; (iii) arguments of counsel;

and (iv) any other relevant information revealed by the record of the trial as a whole. Allen v.

State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).

Jury charge content is governed by code of criminal procedure article 36.14, which requires

the judge to deliver “a written charge distinctly setting forth the law applicable to the case.” TEX.

CODE CRIM. PROC. art. 36.14. The jury charge’s purpose “is to inform the jury of the applicable

law and guide them in its application to the case.” Hutch v. State, 922 S.W.2d 166, 170 (Tex.

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Crim. App. 1996). When a trial judge instructs on a defensive issue on his own motion, he must

do so correctly. Mendez v. State, 545 S.W.3d 548, 553 (Tex. Crim. App. 2018).

Abstract or definitional paragraphs in a charge serve as a kind of glossary to help the jury

understand the meaning of concepts or terms used in the application paragraphs. Plata v. State,

926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997).

On the other hand, application paragraphs apply the relevant law, the abstract definitions,

and general legal principles to the particular facts and the indictment allegations. Vasquez v. State,

389 S.W.3d 361, 366 (Tex. Crim. App. 2012). Because the application paragraph specifies “the

factual circumstances under which the jury should convict or acquit, it is the ‘heart and soul’ of

the jury charge.” Id. at 367.

When a definition or instruction on a theory of law is given in the charge’s abstract

portion charge, the application paragraph must (i) specify “all of the conditions to be met

before a conviction under such theory is authorized”; (ii) authorize “a conviction under

conditions specified by other paragraphs of the jury charge to which the application

paragraph necessarily and unambiguously refers”; or (iii) “contain some logically consistent

combination of such paragraphs.” Id.

2. Self-Defense Instruction Sequence

Appellant’s first issue argues that the self-defense instruction was not proper because it

followed the application paragraphs for murder and transferred intent. According to appellant, this

sequence allowed the jury to find him guilty of murder without first being instructed on self-

defense, and was tantamount to instructing the jurors that self-defense did not apply to murder.

We are not persuaded by these arguments.

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 A jury instruction’s meaning must be taken from the whole charge. Delapaz v. State, 228

S.W.3d 183, 212 (Tex. App.—Dallas 2007, pet. ref’d). Here, the jury was instructed that, “you

may read these instructions as a whole.” We assume the jury follows the instructions as given.

See Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996).

Regarding the order of the instructions, this court has previously considered a similarly

sequenced charge and concluded it was not erroneous. See Wippert v. State, Nos. 05-96-00573-

74-CR, 1998 WL 205798, at *1 (Tex. App.—Dallas Apr. 29, 1998, pet .ref’d) (not designated for

publication). In Wippert, the self-defense instruction followed the application paragraphs for

aggravated assault and murder. Id. We concluded that, read as a whole, the charge adequately

instructed the jury to acquit the defendant if it had reasonable doubt concerning whether he acted

in self-defense. See id.; see also Epley v. State, 704 S.W.2d 502, 505 (Tex. App.—Dallas 1986,

pet. ref’d) (self-defense instruction that followed instructions for murder, voluntary manslaughter,

aggravated assault, involuntary manslaughter, and criminally negligent homicide adequately

instructed jury to acquit of it had reasonable doubt that defendant acted in self-defense).

Nonetheless, appellant relies on Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App.

1998) to globally assert that any flaw in the charge on self-defense amounts to an error in the

charge. Appellant’s argument, however, applies the Barrera holding out of context.

In Barrera, the defendant did not object to the charge or request a self-defense instruction.

Nonetheless, the trial court, sua sponte, included a self-defense instruction in the charge. But the

instruction did not inform the jury that a reasonable doubt on the self-defense issue required an

acquittal, or apply the law of self-defense to the case. Id. The court of criminal appeals considered

the proper standard of review when, in the absence of an objection, a jury charge includes the

definition of self-defense but does not include self-defense in the application paragraph. Id. at

416. The court held that, “having undertaken on its own to charge the jury on this issue, the trial

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court signaled that self-defense was the law applicable to the case. Therefore, any flaw in the

charge on self-defense amounts to an error in the charge . . . .” (Id.) (emphasis added). However,

there was no argument or discussion about the sequence in which the self-defense instruction

appeared. See id.

The self-defense instruction in the present case had none of Barrera’s flaws. Here, the trial

court defined the necessary terms and instructed the jury on self-defense in the abstract portion of

the instruction. The abstract portion of the instruction was followed by an application paragraph

applying the law of self-defense to the facts of the case. And, significantly, it instructed the jury

to acquit appellant if they had a reasonable doubt as to whether he acted in self-defense. See TEX.

PENAL CODE ANN. § 2.03(d) (if the existence of a defense is submitted to the jury, the court shall

charge that reasonable doubt on the issue requires acquittal). We therefore conclude that the trial

court did not err by placing the self-defense instruction after the murder and transferred intent

instructions, and we resolve appellant’s first issue against him.

3. Transferred Intent

Appellant’s second issue argues that the charge was erroneous because the transferred

intent application paragraphs did not include self-defense or culpable mental states. We disagree.

A person is criminally responsible for causing a result if the only difference between what

actually occurred and what he desired, contemplated, or risked, is that a different person was

injured, harmed, or otherwise affected. See TEX. PENAL CODE §6.04(b)(2). This statutory principle

is commonly referred to as transferred intent. See Manrique v. State, 994 S.W.2d 640, 647 (Tex.

Crim. App. 1999) (McCormick, J., concurring).

Transferred intent is raised when there is evidence that a defendant with the required

culpable mental state intends to injure or harm a specific person but instead injures or harms a

different person. Delacerda v. State, 425 S.W.3d 367, 397 (Tex. App.—Houston [1st Dist.] 2011,

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pet. ref’d). The classic example is “the act of firing [a gun] at an intended victim while that person

is in a group of other persons. If the intended person is killed, the offense is murder. If a different

person in the group is killed, the offense is murder pursuant to TEX. PENAL CODE § 6.04(b)(2) . .

. .” Roberts v. State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008), abrogated in part on other

grounds by Ex parte Norris, 390 S.W.3d 338, 341 (Tex. Crim. App. 2012).

Here, the charge instructed:

Murder – Transferred Intent

A person is nevertheless criminally responsible for causing a result if the
only difference between what actually occurred and what he desired, contemplated,
or risked is that a different person was injured, harmed, or otherwise affected.

Now bearing in mind the foregoing instructions, if you believe from the
evidence beyond a reasonable doubt, that on or about February 17, 2013, in Dallas
County, Texas, the defendant, while desiring or contemplating causing the death of
Christian Tippitt or others, caused the death of [L.B.], an individual, by shooting
[L.B.] with a firearm, a deadly weapon, you will find the defendant guilty of the
offense of murder and say so by your verdict.

OR

If you believe from the evidence beyond a reasonable doubt that on or about
February 17, 2013, in Dallas County, Texas, the defendant, while desiring or
contemplating causing serious bodily injury to Christian Tippitt or others,
committed an act clearly dangerous to human life, to-wit: shooting [L.B.] with a
firearm, a deadly weapon, and thereby caused the death of [L.B.], an individual,
you will find the defendant guilty of the offense of murder and say so by your
verdict.

Appellant relies on McCullough v. State, 62 Tex. Crim. 126, 128 (Tex. Crim. App. 1911)

and Curtis v. State, 119 Tex. Crim. 398, 404–05 (Tex. Crim. App. 1931) to argue that the law of

self-defense is applicable to transferred intent. This reliance is misplaced.

Texas Penal Code § 9.05, enacted after the foregoing cases were decided, provides:

Even though an actor is justified under this chapter in threatening or using force or
deadly force against another, if in doing so he recklessly injures or kills an innocent
third person, the justification afforded by this chapter is unavailable in a prosecution
for the reckless injury or killing of an innocent third person.

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See TEX. PENAL CODE § 9.05.2 Thus, while prior law provided that if an accused was justified in

using force against an assailant, he was further justified for killing or injuring an innocent

bystander, § 9.05 altered that law. See Buard v. State, No. 05-99-00426-CR, 2000 WL 348564, at

*7 (Tex. App.—Dallas Apr. 5, 2000, no pet.) (not designated for publication); see also Banks v.

State, 955 S.W.2d 116, 118 (Tex. App.—Fort Worth 1997, no pet.). As we held in Buard, “there

is no justification corollary to the doctrine of transferred intent.” Buard, 2000 WL 348564, at *7.

We are also not persuaded by appellant’s argument that the instruction was erroneous

because it failed to include applicable mental states. The court’s instruction tracked the statutory

definition of transferred intent. See TEX. PENAL CODE §6.04 (b)(2). A jury charge that tracks the

language of a statute is a proper charge on the statutory issue. Wood v. State, No. 05-97-00411-

CR, 2001 WL 1047073, at *8 (Tex. App.—Dallas Sept. 13, 2001, no pet. (not designated for

publication) (citing Martinez v. State, 929 S.W.2d 693, 699 (Tex. Crim. App. 1996)).

Moreover, the culpable mental states are defined elsewhere in the charge and are included

in the murder application paragraphs. The transferred intent instruction appeared immediately

after the murder application paragraphs and made clear that it was applicable to murder with the

heading “Murder-Transferred Intent.”

For these reasons, we hold that the charge was not erroneous for failure to include self-

defense or mental states in the transferred intent instruction and resolve appellant’s second issue

against him.

4. Self-Defense Instruction Omissions

Appellant’s third and fourth issues complain about omissions in the self-defense

instruction. Specifically, he maintains the instruction was erroneous because it did not include (i)

2
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. TEX. PENAL CODE § 9.31(a).

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murder committed under §19.02(b)(2) (intending to cause serious bodily injury and committing an

act clearly dangerous to human life that causes the death of an individual), and (ii) did not provide

or apply the elements of aggravated robbery and robbery. We conclude no error occurred in issue

three and in issue four, that appellant did not suffer resulting egregious harm.

a. Did error result from a charge and if so, Was appellant harmed by not
expressly including §19.02(b)(2) murder in the self-defense application
paragraph?

Here, the application paragraph murder instruction included murder as defined by both

§§19.02(b)(1) and (2):

Murder

Now bearing in mind the foregoing instructions, if you believe from the evidence
beyond a reasonable doubt, that on or about February 17, 2013, in Dallas County,
Texas, the defendant, intentionally or knowingly caused the death of [L.B.], an
individual, by shooting [L.B.] with a firearm, a deadly weapon, you will find the
defendant guilty of the offense of murder and say so by your verdict.

OR

If you believe from the evidence beyond a reasonable doubt that on or about
February 17, 2013, in Dallas County, Texas, the defendant, intended to cause
serious bodily injury to [L.B.], and committed an act clearly dangerous to human
life by shooting [L.B.] with a firearm, a deadly weapon, and did thereby cause the
death of [L.B.], you will find the defendant guilty of the offense of murder and say
so by your verdict.

And the application paragraph’s self-defense instruction began by stating, “In regards to the

offenses of murder and manslaughter, you are instructed as follows . . . .” But it did not limit the

self-defense instruction to only §19.02(b)(1) murder. The jury had both manner and means of

committing the offense of murder. Thus, viewing the charge as a whole, the jury would have

understood that self-defense applied to both murder theories defined in the murder instruction. We

conclude no error is presented.

Furthermore, even if we assume error, the state of the evidence, including contested issues

and the weight of the evidence, does not support egregious harm. See Allen, 253 S.W.3d at 264.

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The State’s primary theory was that appellant knowingly and intentionally killed Bray. Several

days before the murder, as well as the night before, appellant was threatening to kill Bray because

Bray owed him money and had stolen from appellant’s grandmother. In addition, when appellant

was with Bray, he (or someone using his phone) sent a text message saying, “Please come and get

me or it will be a murder case.”

Additionally, Bray suffered four gunshot wounds to the forehead, neck, head, and chest,

and nobody checked his body for a pulse. A nine-shot .22 caliber revolver with seven empty

chambers in the cylinder was found buried in appellant’s grandmother’s flower bed—and appellant

went directly to his grandmother’s house after the shooting. Thus, while the State argued section

19.02(b)(2) murder as an alternative, nothing about the evidence showed or led to an inference that

the shooter acted with anything other than an intent to kill.

Moreover, the State’s arguments also emphasized intentional murder. For example, the

State argued, “It was not an accident, ladies and gentlemen. Because it was murder. Because this

man is a cold killer.”

And the defense did not argue about appellant’s mental state at all. Instead, counsel

focused on whether there was reasonable doubt that appellant was the one who killed Bray. For

example, defense counsel argued:

I can’t tell you beyond a reasonable doubt that Christian Tippett is the person who
killed Mr. Bray. I can tell you he’s out there. They can’t prove beyond a reasonable
doubt that [appellant] is the person who killed Mr. Bray. They know that. They
know that. That’s why they [are] still dealing with Christian Tippett.

The defense further argued, “If they can’t tell you how many people are in the alley when he’s

[sic] shot them, they can’t tell you beyond a reasonable doubt that [appellant] is the person who

shot him.”

Furthermore, self-defense was not a vital defense theory used to justify the murder—

whether it was section 19.02(b)(2) murder or otherwise. For example, defense counsel asked only
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three general questions about self-defense in voir dire, and did not mention it in his opening

statement. Likewise, defense counsel did not argue self-defense in his closing argument. Instead,

he argued that the State had “No idea what happened” and had conducted a rushed investigation.

No witnesses testified that appellant acted in self-defense, nor did any other evidence suggest that

he had done so. No egregious error is shown.

b. Was appellant harmed by omitting the robbery and aggravated
robbery elements, or the application of these elements to the facts of the case?

The language in the self-defense charge complained of in this issue was taken directly from

the penal code § 9.32(a)(2)(B). The instruction told the jury that a person may use deadly force to

prevent another person’s imminent commission of a series of crimes including robbery and

aggravated robbery. The charge did not define any of the listed crimes or apply them to the facts

of the case. Appellant complains of the failure to list the elements of aggravated robbery or

robbery, just two of the crimes enumerated in the charge.

Assuming error, the evidence that a robbery occurred was a remote, tangential theory that

was not supported by any evidence other than one of the several versions of events appellant gave

to the police. Defense counsel did not mention robbery in opening statement or closing argument.

Instead, he argued, “This is pay back. This is drug dealing. This is payback time.” The State did

not mention robbery at all.

Similarly, when Kyle testified, he did not say that he saw Tippitt, a robbery, an attempted

robbery, or any deadly force or attempted deadly force. Tippitt testified that he was not there, and

did not threaten or attempt to rob anyone with his shotgun. None of the cartridge casings received

from the scene came from a shotgun. And the police concluded that Tippitt was not involved

because they could not place him at the scene.

Moreover, as previously discussed, self-defense would not justify Bray’s killing during a

robbery. For example, if Christian Tippitt had robbed or attempted to rob appellant, and appellant
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recklessly killed Bray as an innocent third party, self-defense would not justify the killing. See

TEX. PENAL CODE § 9.05.

Because the possibility of robbery was so far removed from the facts established by the

evidence, we cannot conclude that the omitting the elements of robbery and aggravated robbery or

failing to apply them caused appellant egregious harm.

Finally, we do not find any other relevant information to support a conclusion that the

complained-of omissions were harmful. See Allen, 253 S.W.3d at 264.

c. Conclusion

Under these circumstances, we cannot conclude that the omission of the §19.02(b)(2)

theory of murder or the elements of robbery and aggravated robbery from the self-defense

instruction affected the very basis of the case, deprived appellant of a valuable right, or vitally

affected a defensive theory. See Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007).

We therefore resolve appellant’s third and fourth issues against him.

B. Improper Argument

Appellant’s fifth issue argues that the prosecutor’s improper argument violated his

constitutional right to be presumed innocent. We reject this argument.

During trial, the State introduced social media evidence showing a 2016 post from Green

saying that she was engaged to appellant. Green denied the engagement, however, and said she

made the post to annoy Kyle’s sister.

Then in closing argument, the State argued:

Let’s talk about [Green]. Only thing you need to know about her. What did she
tell you, we’re on again, off again . . . Happy he saved my life. Engagement ring.
I think it’s clear who she is engaged to. She wanted to tell you this is about Cara
Kyle, the sister of Chris, and whatever else. Really? You know that’s not true.
Three years after? He’s been in jail this whole time ladies and gentlemen.

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Defense counsel objected, “Improper argument,” and the trial judge responded, “Jury will recall

the evidence as they heard it. Proceed.”

After the jury retired to deliberate, the judge noted for the record that defense counsel’s

objection had been overruled and “the defense exception noted.”

A point of error on appeal must comport with the objection made at trial. Yazdchi v. State,

428 S.W.3d 831, 844 (Tex. Crim. App. 2014). Here, appellant’s “improper argument” objection

does not comport with his constitutional argument on appeal because the “improper argument

objection” does not necessarily include a violation of “the right to be presumed innocent.”

Moreover, to preserve error regarding allegedly improper argument, a party must object

and pursue an adverse ruling; request an instruction for the jury to disregard if the improper

argument is curable; and move for a mistrial if the instruction is given. See Archie v. State, 221

S.W.3d 695, 699 (Tex. Crim. App. 2007).

Furthermore, requests for instructions to disregard must be timely made. Raborn v. State,

No. 05-10-00685-CR, 2011 WL 653776, at *1–2 (Tex. App.—Dallas Feb. 24, 2011, no pet.) (not

designated for publication). A request for an instruction after the jury retires to deliberate is not

timely. See id.

In this case, appellant’s counsel did not request a ruling, an instruction, or move for a

mistrial. Thus, the point has not been preserved for our review. See TEX. R. APP. P. 33.1(a).

But even had the point been preserved, the record does not demonstrate that appellant was

harmed thereby. Improper jury arguments are nonconstitutional violations governed by Rule

44.2(b). See Mosely v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); TEX. R. APP. P. 44.2

(b). And even if an argument was improper, it does not constitute reversible error unless, in light

of the entire record, the argument is extreme or manifestly improper, violates a mandatory statute,

or injects harmful new facts about the accused into the proceeding. Westbrook v. State, 29 S.W.3d

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103, 115 (Tex. Crim. App. 2000). The remarks must have been a willful and calculated effort to

deprive appellant of a fair trial. Id. The argument here was not such an argument.

Firstly, the prosecutor’s remarks were not the first reference to incarceration. During jury

selection, defense counsel described what happens to a person arrested for murder. During this

explanation, he said:

Better hope he’s saved himself a few $1,000 so that he can post a bond or hire
himself a lawyer. Otherwise, guilty or not guilty, he’ll sit in the jail cell, seven days
a week, 24 hours a day, until his case is called for trial.

The jurors were aware that appellant had been arrested after the murder.

Secondly, the argument was made in the context of challenging Green’s credibility;

specifically, whether her testimony about the Facebook post was credible. Thus, the argument did

not directly pertain to appellant’s guilt or innocence.

Finally, the court verbally instructed the jury to rely on their own recollection of the

evidence, and the court’s written charge instructed that the fact that the defendant had been

arrested, confined, or indicted did not give rise to an inference of guilt.

Therefore, even if the prosecutor’s remark was improper, nothing in the record establishes

that the argument was a willful and calculated effort to deprive appellant of a fair and impartial

trial that caused appellant harm. Appellant’s fifth issue is resolved against him.

III. CONCLUSION

Having resolved all of appellant’s issues against him, we affirm the trial court’s judgment.

/Bill Whitehill/
BILL WHITEHILL
Do Not Publish JUSTICE
TEX. R. APP. P. 47
170016F.U05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

MARKAILON ADRELL DAILEY, On Appeal from the Criminal District Court
Appellant No. 5, Dallas County, Texas
Trial Court Cause No. F-1345287-L.
No. 05-17-00016-CR V. Opinion delivered by Justice Whitehill.
Justices Francis and Fillmore participating.
THE STATE OF TEXAS, Appellee

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

Judgment entered July 16, 2018.

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