Affirmed and Memorandum Opinion filed April 2, 2024
In The
Fourteenth Court of Appeals
NO. 14-23-00068-CR
SEAN STROUT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1591084
MEMORANDUM OPINION
A jury found appellant Sean Strout guilty of murder and assessed
punishment at thirty-five years confinement in the Texas Department of Criminal
Justice—Institutional Division. Appellant’s theory at trial was that he acted in
self-defense. See Tex. Penal Code § 9.32. In a single issue, he contends the trial
court erred by omitting an instruction on the presumption of reasonableness from
the jury charge. We affirm.
Background
Appellant and Lance Frazier went to the home of the complainant late one
night to “party.” Lance left complainant’s house around 1:00 p.m. the next day,
but appellant stayed.
Appellant was the only witness to what transpired after Lance left. The
following is appellant’s version of events. He and complainant hung out at the
house for the next several hours. While they were in complainant’s bedroom,
complainant saw a picture on appellant’s phone of appellant with another man that
complainant knew. Complainant became very angry and punched appellant in the
head. Appellant ran into the living room, as complainant came after him “fast and
hard.” Complainant beat appellant to the ground, fracturing his nose. Appellant
began kicking and yelled out, “Lord Jesus, don’t let me die.” Complainant then
said, “Bitch, you’re going to die tonight,” and pulled out a gun. Appellant kicked
the gun out of complainant’s hands, and it fell about two feet away. Appellant
picked it up and fired the gun once. Complainant backed up but then leaned
toward appellant, trying to take away the gun. Appellant fired a second time, after
which complainant grabbed his neck and ran out through the garage. Appellant
followed, leaving the gun in the garage and walking out into the street, where he
saw complainant lying face down in a ditch. Appellant said he screamed for help
four times. He went back into the house to retrieve his backpack, then ran behind
the house and jumped a fence into a wooded field. Appellant testified that he was
terrified he would die that night and did not intend to kill complainant.
The State presented evidence that contradicted appellant’s narrative,
including a witness who heard a total of four gunshots, not two. Frederick Pittman
lived in an apartment across the street from complainant’s house. Pittman was in
his kitchen around 8:30 that evening when he heard two gunshots that sounded
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close by. He stepped out of his front door to look around but saw nothing. About
two to three minutes later, he heard two more gunshots that he realized came from
complainant’s house. He saw complainant lift up his garage door and run out,
yelling for help before collapsing in the street. Pittman then saw another male
come out of the garage and walk toward complainant. The other male walked back
into the garage, then came out again. After standing by the trash can momentarily,
the other male left through the field behind complainant’s house. Pittman called 9-
1-1.
The State offered other physical evidence that undermined appellant’s self-
defense theory. There was evidence of a blood trail that began in complainant’s
bedroom followed by bloody footprints. There was also bullet trajectory evidence
inconsistent with appellant’s version of events, and a bullet was found embedded
in the wall of the garage.
After both sides rested, the trial court instructed the jury on the law of self-
defense as it applies to a defendant’s use of deadly force against another. See Tex.
Penal Code §§ 9.31, 9.32(a). Based on that law, the trial court instructed the jury
that a person is justified in using deadly force when the actor reasonably believed
that the force was immediately necessary to protect himself against another
person’s use or attempted use of unlawful deadly force. See id. § 9.32(a)(2)(A).
The court, however, did not additionally instruct the jury on the provisions set forth
in Texas Penal Code section 9.32(b), which, when the identified facts exist, creates
a presumption of reasonableness as to an actor’s belief under Subsection (a). See
id. § 9.32(b). Appellant did not object to the lack of a presumption-of-
reasonableness instruction, nor did he request a separate instruction describing the
provisions in Section 9.32(b). After the charge was submitted, the jury rejected
appellant’s claim of self-defense, found him guilty of murder, and assessed his
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punishment at thirty-five years confinement in the Texas Department of Criminal
Justice—Institutional Division. The court signed a judgment of conviction
consistent with the verdict.
Analysis
In a single issue, appellant argues that the self-defense jury instruction was
reversible error because the trial court omitted a presumption-of-reasonableness
instruction, which caused him egregious harm.
A. Standard of Review and Applicable Law
A review of jury-charge error involves a two-step analysis. Ngo v. State,
175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). First, we determine whether
error exists, and, if so, whether sufficient harm resulted from the error to require
reversal. Id.
In relevant part, Penal Code section 9.32 states:
§ 9.32. Deadly Force in Defense of Person
(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other
under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly
force is immediately necessary:
(A) to protect the actor against the other’s use or attempted use
of unlawful deadly force; or
(B) to prevent the other’s imminent commission of aggravated
kidnapping, murder, sexual assault, aggravated sexual assault,
robbery, or aggravated robbery.
(b) The actor’s belief under Subsection (a)(2) that the deadly force
was immediately necessary as described by that subdivision is
presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the
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deadly force was used:
(A) unlawfully and with force entered, or was attempting to
enter unlawfully and with force, the actor’s occupied habitation,
vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to
remove unlawfully and with force, the actor from the actor’s
habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense
described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used;
and
(3) was not otherwise engaged in criminal activity, other than a
Class C misdemeanor that is a violation of a law or ordinance
regulating traffic at the time the force was used.
Tex. Penal Code § 9.32(a), (b).
On appeal, the State takes no position whether the trial court correctly
omitted a presumption-of-reasonableness instruction under section 9.32(b); the
State defends the judgment on the ground that any error was not egregiously
harmful. We will presume without deciding that the trial court erred in failing to
include a presumption-of-reasonableness instruction and will turn to the question
of harm.
Because appellant did not timely object at trial, 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. Villareal v.
State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); see Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985). Charge 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 Almanza, 686 S.W.2d at 171. “This is a
high and difficult standard which must be borne out by the trial record.” Reeves v.
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State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). On appeal, however, neither
party bears the burden of showing harm or a lack thereof under this standard.
Villareal, 453 S.W.3d at 433. We will not reverse a conviction under the
egregious harm standard unless the defendant has suffered “actual rather than
theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
We consider: (1) the entirety of the jury charge, (2) the state of the evidence,
including the contested issues and weight of probative evidence, (3) the arguments
of counsel, and (4) any other relevant information revealed by the trial record as a
whole. Almanza, 686 S.W.2d at 171.
B. Application
1. Entirety of the jury charge
The jury charge omitted the required instruction, and thus the jury would not
have known that it could have presumed that appellant had a reasonable belief that
his use of deadly force was necessary if the jury had found sufficient evidence to
support the presumption. Accordingly, the first factor would weigh in favor of
egregious harm. Villarreal, 453 S.W.3d at 433.
However, the Court of Criminal Appeals has explained that this factor is
entitled to less weight when, as here, “a complete jury charge on the presumption,
in addition to describing the legal force of the presumption itself, would have also
permitted the jury to conclude that the presumption was inapplicable based on the
facts of this case.” Id. As in Villareal, the court’s charge in this case correctly
informed the jury of the law of self-defense generally, including the use of deadly
force in self-defense. See Tex. Penal Code §§ 9.31, 9.32. The charge provided:
Upon the law of self-defense, you are instructed that a person is
justified in using force against another when and to the degree he
reasonably believes the force is immediately necessary to protect
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himself against the other person’s use or attempted use of unlawful
force. The use of force against another is not justified in response to
verbal provocation alone. A person is justified in using deadly force
against another if he would be justified in using force against the other
in the first place, as above set out, and when he reasonably believes
that such deadly force is immediately necessary to protect himself
against the other person’s use or attempted use of unlawful deadly
force.
...
By the term “reasonable belief” as used herein is meant a belief
that would be held by an ordinary and prudent person in the same
circumstances as the defendant.
By the term “deadly force” as used herein is meant force that is
intended or known by the persons using it to cause, or in the manner
of its use or intended use is capable of causing, death or serious bodily
injury.
When a person is attacked with unlawful deadly force, or he
reasonably believes he is under attack or attempted attack with
unlawful deadly force, and there is created in the mind of such person
a reasonable expectation or fear of death or serious bodily injury, then
the law excuses or justifies such person in resorting to deadly force by
any means at his command to the degree that he reasonably believes
immediately necessary, viewed from his standpoint at the time, to
protect himself from such attack or attempted attack. It is not
necessary that there be an actual attack or attempted attack, as a
person has a right to defend his life and person from apparent danger
as fully and to the same extent as he would had the danger been real,
provided that he acted upon a reasonable apprehension of danger, as it
appeared to him from his standpoint at the time, and that he
reasonably believed such deadly force was immediately necessary to
protect himself against the other person’s use or attempted use of
unlawful deadly force.
In determining the existence of real or apparent danger, you should
consider all the facts and circumstances in evidence before you, all
relevant facts and circumstances surrounding the offense, if any, the
previous relationship existing between the defendant and Erron
Walker, together with all relevant facts and circumstances going to
show the condition of the mind of the defendant at the time of the
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offense, and, in considering such circumstances, you should place
yourselves in the defendant’s position at that time and view them from
his standpoint alone.
The charge did not additionally ask the jury to decide whether, in light of the
circumstances of the case, appellant was entitled to a presumption of
reasonableness as to his asserted belief that the use of deadly force was
immediately necessary. See id. § 9.32(b). Although we are presuming this
omission to be error, we conclude that here, as in Villareal, a complete jury charge
on the presumption, in addition to describing the legal force of the presumption
itself, would have also permitted the jury to conclude that the presumption was
inapplicable based on the facts of this case. Villareal, 453 S.W.3d at 435. For
example, based on physical and testimonial evidence, the jury might have
reasonably concluded from the evidence that appellant was the aggressor,
rendering the presumption of reasonableness immaterial. As we next explain,
based on the overall state of the evidence discrediting appellant’s self-defense
theory, we conclude that the omitted presumption instruction did not deprive
appellant of a fair and impartial trial.
2. State of the evidence
The second factor considers the state of the evidence. The primary evidence
supporting appellant’s self-defense theory was his testimony that complainant had
attacked him with a gun and that appellant was afraid for his life.
Other evidence called into question appellant’s version of events, and the
jury might have reasonably rejected appellant’s claim as implausible. In the 9-1-1
recording, Pittman described complainant as yelling for help as he opened the
garage door, ran outside, and collapsed in a ditch. Pittman also described how he
heard a “pop” behind complainant as he ran outside. Pittman reported that he saw
someone else run out of the garage behind complainant, turn back to get something
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inside, and then run to the back of the house and into the woods. Appellant
claimed that he called for help four times loudly outside before running away
because he was worried complainant was retrieving another firearm from the ditch.
This is inconsistent with Pittman’s account.
Critically, physical evidence contradicted appellant’s account that he shot
complainant in the living room and fired the gun only twice. Testimony
concerning the autopsy indicated that three bullets struck complainant, two of
which entered complainant’s neck in the same entry channel in tandem, a situation
occurring when two projectiles exit the firearm simultaneously. A fourth bullet
was recovered from the garage floor and there was a bullet hole in the garage door.
All bullets were confirmed to have come from complainant’s revolver, which had
DNA evidence on it from both complainant and appellant. Of the six cartridges
and/or casings, five had a dimpled primer indicating they had been fired.
While appellant claimed that he shot complainant in the living room, a trail
of bloody footprints began not in the living room but in complainant’s bedroom
and led to the garage—where another bullet was found—thus giving rise to a
reasonable inference that the gun was fired in complainant’s bedroom and in the
garage. According to the State, the trajectories of the bullets was inconsistent with
appellant’s story. All of this evidence, together with Pittman’s statement that he
heard a “pop” behind complainant as he fled the garage, could have supported an
inference that appellant was the aggressor and had pursued complainant.
Moreover, appellant’s mugshot taken ten days after the event did not
indicate that he had sustained the injuries he claimed, such as a fractured nose or
an eyebrow cut needing stitches.
Thus, even had the jury been instructed as to the presumption of
reasonableness under section 9.32(b), we conclude that, because appellant’s claim
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of self-defense was relatively weak and contradicted by the physical evidence and
the entirety of the record, we cannot say that the omission of the instruction
deprived appellant of a fair trial. We conclude that this factor weighs substantially
against a finding of egregious harm. See Villarreal, 453 S.W.3d at 439 (factor
weighed “substantially” against egregious harm when there was significant
evidence that defendant was aggressor and, “save for appellant’s own statements to
police, none of the other evidence presented at trial supported a justification
defense”).
3. Arguments of counsel
The third factor concerns the arguments of counsel. Appellant’s closing
argument emphasized portraying complainant as the aggressor, and the State’s
arguments largely urged to jury to reject appellant’s narrative in light of the
contradictory physical and testimonial evidence. Appellant’s counsel mentioned
the issue of the reasonableness of appellant’s beliefs and actions only once: “[w]as
it reasonable for him to believe that he might have been killed, that that man was
going to try and commit murder on him? The answer to that is yes. Is it
reasonable to use deadly force to protect himself? The answer to that is yes.” And
the State did not place great emphasis on the reasonableness of appellant’s belief
that deadly force was immediately necessary; the State asserted that appellant’s
version was not credible. The reasonableness of appellant’s belief was not the
main thrust of either defense counsel’s or the State’s arguments. Thus, we find the
lack of a presumption of reasonableness instruction did not “vitally” affect
appellant’s self-defense theory. See Villareal, 453 S.W.3d at 440-41. We
conclude this factor weighs against a finding of egregious harm.
4. Other relevant information revealed by the record as a whole
As for the fourth factor, the record does not contain “other relevant
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information that may require consideration,” such as “whether the jury rejected one
of multiple counts or sent requests for clarification during deliberations.” See
Smith v. State, 515 S.W.3d 423, 431 (Tex. App.—Houston [14th Dist.] 2017, pet.
ref’d).1
Conclusion
Having reviewed the relevant factors, we conclude appellant did not suffer
egregious harm from the omission of a presumption-of-reasonableness instruction.
See Villarreal, 453 S.W.3d at 433, 436, 439.
We affirm the judgment.
/s/ Kevin Jewell
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b)
1
The jury charge for the punishment phase is not contained in our record.
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