Jordan v. State, 2018 Tex. App. LEXIS 3986
Court of Appeals of Texas, Sixth District, Texarkana
May 22, 2018, Submitted; June 5, 2018, Decided
2018 Tex. App. LEXIS 3986
PATRICK JORDAN, Appellant v. THE STATE OF TEXAS, Appellee
Before Morriss, C.J., Moseley and Burgess, JJ. Opinion by Justice Moseley.
Opinion by: Bailey C. Moseley
A Bowie County jury convicted Patrick Jordan of discharging a firearm in a manner that constituted deadly conduct, a third degree felony. See Tex. Penal Code Ann. § 22.05 (West 2011). Jordan was sentenced to four years’ imprisonment.
On appeal, Jordan argues that the trial court erred in (1) denying his request to instruct the jury that it was required to acquit him if it had reasonable doubt as to whether the State disproved his justification of self-defense, (2) denying his request to include an instruction that his belief that deadly force was immediately necessary was presumed reasonable if he knew or had reason to believe that the victim or others were committing or attempting to commit murder or serious bodily injury, (3) excluding multiple assailant language in the jury charge, (4) including a duty to retreat in its instructions on self-defense, (5) excluding evidence of the first aggressor’s reputation, and (6) excluding evidence of Jordan’s good reputation for honesty.
We overrule Jordan’s first four points of error after concluding that he was not entitled to an instruction on self-defense. We further find that Jordan failed to preserve his fifth point of error and that no harm resulted from the trial court’s exclusion of testimony regarding Jordan’s reputation for honesty. Accordingly, we affirm the trial court’s judgment.
I. Factual and Procedural History
The shooting involved in this case occurred in the parking lot of the Silver Star Smokehouse & Saloon in Texarkana, Texas. The evidence at trial demonstrated that Jordan and his friend, Cody Lynn Bryan, stopped at the restaurant for dinner after packing up Jordan’s belongings in preparation for his move to Broken Bow, Oklahoma. Before arriving, Jordan sent a text message to his ex-girlfriend, Summer Varley, to see if she was working at Silver Star and to seek her permission to eat there. Varley, a waitress at the establishment, responded that she was at the restaurant, but was not currently working a shift. She granted Jordan permission to patronize the restaurant and buy her a drink.
Marissa Jones was waitressing at the restaurant and recalled that Varley had been at the bar drinking with friends Jordan Royal, Austin Blake Crumpton, Damon Prichard, and Joshua Stevenson. Varley testified that Royal was like a brother to her and that she had discussed with Royal the complicated nature of her relationship with Jordan. According to Varley, Royal was intoxicated and upset at Jordan’s treatment of her during their relationship. Royal testified that Varley informed him of an altercation that she had with Jordan, causing him concern for Varley’s well-being.
Jordan and Bryan testified that they were met by Royal at the entryway of the establishment. According to the five-foot-five Jordan, the over-six-foot Royal, a member of the Arkansas Army National Guard, “squeezed [his] hand pretty intently.” Matt Cashatt, a detective with the Texarkana, Texas, Police Department (TTPD), testified that Royal instructed Jordan not to speak with Varley. Jordan said he told Royal that he was only there to eat, not to talk to Varley. Jordan and Bryan obtained a table in the main section of the restaurant, away from the bar, and ordered burgers and beers.
While they were waiting on their food to arrive, Jordan and Bryan were visited by Varley and Prichard. According to Cashatt, Varley told Jordan “that he couldn’t be an asshole to her and come up there and not expect for someone to say anything to him about it.” Next, Prichard approached Jordan and asked him if he liked to hit women, prompting a response from Jordan that he did not know what Prichard was talking about. At trial, Prichard testified that Bryan slapped him in the chest twice at the table after his conversation with Jordan and that, as a result, he instructed Bryan and Jordan to meet him outside. Bryan and Jordan both denied any physical altercation with Prichard, whom they described as having “a pretty aggressive nature.” Their testimony appeared corroborated by Vince Minter, who was eating dinner with his wife at a table near Jordan and Bryan. Minter said that he saw Prichard approach Jordan and Bryan to exchange words. According to Minter, Jordan and Bryan were very quiet and were not involved in any confrontation with Prichard while in the restaurant.
Soon thereafter, Prichard, Royal, Stevenson, Crumpton, and Varley paid their tabs at the bar and walked outside, gathering near the front entrance. Varley testified that the rest of the group was upset and that she was telling everyone to calm down and mind their own business. A surveillance video recording of the front entrance showed Varley appearing to argue with the group. Meanwhile, Jordan testified that he and Bryan decided to cancel their food order to avoid confrontation. They waited ten or fifteen minutes, “[l]ong enough for [the group] to disperse from the parking lot,” before exiting the business.
The surveillance recording depicted Jordan and Bryan exiting several feet to Varley’s right while Royal and his group were standing several feet to Varley’s left. Cashatt testified that according to Varley, Jordan said he did not mean to cause any problems and immediately attempted to leave with Bryan walking behind him.  Varley said she told Jordan to leave because she was aware of an impending attack by Royal and feared for Jordan’s safety. Bryan testified that he and Jordan walked speedily toward Bryan’s car because Royal, Prichard, Stevenson, and Crumpton (collectively referred to as Royal’s group) were all intoxicated and “hollering a little bit, kind of moving around.” According to the recording and analysis of the same by Greg Walker, a Sergeant at the TTPD, “it appear[ed] that [Royal’s] group was outside, and when Bryan and Patrick Jordan exit [the restaurant] straight out to the parking lot, the group quickly follows.” Varley sped behind Royal’s group, who appeared to be chasing after Jordan and Bryan as they attempted to leave. Screaming, she tried in vain to get Royal’s group to leave Jordan alone. Consistent with Varley’s testimony, Cashatt testified that Varley reported chasing after Royal because he was drunk and angry, and she knew Royal would “tear into [Jordan].”
There was no surveillance recording of the parking lot, allowing for two versions of the incident. According to the version of events from Varley, Jordan, and Bryan, Royal hit Bryan with such force that it knocked Bryan completely unconscious. The evidence at trial showed that Bryan was hospitalized and treated for a fractured eye socket and nose sustained from one punch lobbed by Royal.  Bryan testified that he did not see the remaining altercation because he woke up in an ambulance. Cashatt recalled that Varley told him Royal became fired up and swung at Bryan, who did not provoke Royal. According to the second version of events from Royal and Crumpton, Bryan slapped Royal before Royal knocked him out cold.
Jordan testified that he turned around when he heard the punch, saw Bryan on the ground, and watched Royal signal for Stevenson to chase Jordan. Jordan tried to run to the car when Royal “reached around [his] face, fish-hooked [his] eye, and turned [him] around.” Jordan testified that Royal “lock[ed him] up” and got on top of him. According to Cashatt, Crumpton reported that Stevenson and Royal “were into it with” Jordan and that they “tussled.” Although Varley said at trial that she did not see Royal physically touch Jordan, Cashatt testified, “She said she tried to pull [Royal] off [Jordan] but then her arm went numb and she fell down.” She had been shot. The gunfire prompted Royal to run in between cars parked in the lot, with Crumpton running behind him. Jordan fired another bullet that pierced Royal in the femoral artery. Royal testified that he fled the scene with Stephenson, who took him to the hospital. Likewise, Crumpton and Prichard also separately fled the scene.
At trial, Jordan admitted that he had pulled out a loaded pistol from his pocket during the altercation. Jordan explained that Royal had an intimidating physique. After he saw what happened to Bryan, Jordan testified that he feared for his safety, believed he was getting mobbed, and felt that he had no alternative but to pull the trigger even though he could not see to aim the weapon. Varley believed that it was reasonable for Jordan to fear for his safety since multiple assailants were attacking him and because she, too, feared for his safety. Although it was undisputed that no one in Royal’s group was carrying a weapon, Cashatt testified that it was possible that Jordan thought Royal was a threat to his safety and welfare. Cashatt “recall[ed] Mr. Jordan telling [him] that he was going to his car when he felt somebody grab him from behind.” Cashatt also said he noticed Jordan’s eyes were bloodshot after Jordan reported that someone had scraped over his eyes during the altercation.
Anna Coleman, who had just arrived at the restaurant, testified that she witnessed the commotion in the parking lot. Coleman said, “[T]hey were sort of in a circle out there, and all of a sudden the circle started getting very active. A lot of arms flying, pushing, a lot of commotion.” She heard a gunshot and remained in the car until the shooting was over. After the shooting, she saw Varley and Bryan on the ground. Coleman testified that Jordan was standing in the parking lot, “out there all alone,” and that “everybody else was over where the commotion had gone on.”
After the shooting, Jordan testified that he walked back inside to tell the staff to dial 9-1-1. The surveillance recording from inside the restaurant showed that Jordan reentered the restaurant, walked to the kitchen, spoke to staff as he laid his pistol on the counter, held his hands up, and waited for police. Joseph Tefteller, a police officer with the TTPD, testified that a Silver Star employee led him to Jordan, who immediately pointed to a pistol on the counter, put his hands up, and said, “Here I am.” Jordan was arrested and soon confirmed with TTPD that he had discharged the firearm.
Varley, who had been shot in the chest, was transported to the hospital for emergency treatment while TTPD was processing the scene. The next day, she sent Jordan the following text message:
I didn’t want this to happen to you. I never wanted any of this. I feel like the guiltiest person and you put me in a bad situation because you’re the one who pulled out a gun. You could’ve killed me and [Royal]. I tried to protect you, and you shot me.
As a result of the Silver Star shooting, Jordan was jointly tried for (1) aggravated assault with a deadly weapon against Royal and (2) deadly conduct against Varley and Crumpton. Jordan asserted self-defense as justification for his actions. In spite of a lengthy deliberation, the jury was unable to reach a verdict on the aggravated assault charge. The trial court declared a mistrial as a result of the hung jury on that charge. However, the jury found Jordan guilty of deadly conduct after concluding that he knowingly discharged a firearm in Varley and Crumpton’s direction. See Tex. Penal Code Ann. § 22.05(b)(1) (West 2011). Jordan appeals.
II. Jordan Was Not Entitled to a Self-Defense Instruction
Jordan was indicted for deadly conduct committed against Varley and Crumpton. Jordan made a request for a jury charge that included instructions pertaining to self-defense. The fact that Jordan was simultaneously tried for two charges arising from the same incident (i.e., the aggravated assault of Royal and the dangerous conduct directed toward Varley and Cumpton) may have raised confusion as to the content of the charge. In Jordan’s written request, it may be construed that Jordan was requesting a self-defense instruction only as to the charge against him for the alleged aggravated assault of Royal but not pertaining to the dangerous conduct charge. From the exchange at the charge conference, it appears that the trial court believed Jordan to be requesting a self-defense instruction as pertained to the deadly conduct charge. The trial court generally instructed the jury as follows:
A person is justified in using deadly force . . . 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, and if a reasonable person in defendant’s situation would not have retreated.
. . . .
A person is justified in using force or deadly force against another to protect a third person if: 1) under the circumstances the actor reasonably believes them to be, the actor would be justified, as in self-defense, in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and 2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.
The application paragraph of the trial court’s charge stated:
Now, if you find from the evidence beyond a reasonable doubt that on the occasion in question the defendant, PATRICK JORDAN, did commit the offense of deadly conduct, as alleged in the indictment, but you further find from the evidence, as viewed from the standpoint of the defendant at the time that from the words or conduct, or both, of Jordan Royal it reasonably appeared to the defendant that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Jordan Royal, and that acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself against Jordan Royal’s use or attempted use of unlawful deadly force, he shot Jordan Royal with a gun, and that a reasonable person in the defendant’s situation would not have retreated, then you should acquit the defendant on the grounds of self-defense on said occasion and under the circumstances, then you should give the defendant the benefit of that doubt and say by your verdict of not guilty of Deadly Conduct.
If you find from the evidence beyond a reasonable doubt that at the time and place in question the defendant did not reasonably believe that he was in danger of death or serious bodily injury, or that a reasonable person in the defendant’s situation at the time and place in question would have retreated before using deadly force against Jordan Royal, or that the defendant, under the circumstances as viewed from his standpoint at the time, did not reasonably believe that the degree of force actually used by him was immediately necessary to protect himself against Jordan Royal’s use or attempted use of unlawful deadly force, then you should find against the defendant on the issue of self-defense.
Jordan alleges that the jury charge erroneously included a duty to retreat.  Jordan also argues that the trial court erred in (1) denying his request to instruct the jury that it was required to acquit him if it had reasonable doubt as to whether the State disproved his justification of self-defense, (2) denying his request to include an instruction that his belief that deadly force was immediately necessary was presumed reasonable if he knew or had reason to believe that the victim or others were committing or attempting to commit murder or serious bodily injury, and (3) excluding multiple assailant language in the jury charge.
“[A] person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” Tex. Penal Code Ann. § 9.31(a) (West 2011). “A person is justified in using deadly force against another . . . when and to the degree the actor reasonably believes the deadly force is immediately necessary . . . to protect the actor against the other’s use or attempted use of unlawful deadly force,” if the actor’s actions would be justified under Section 9.31 of the Texas Penal Code. Tex. Penal Code Ann. § 9.32(a) (West 2011).
“[A] defense is supported (or ‘raised’) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true.” Shaw v. State, 243 S.W.3d 647, 657 (Tex. Crim. App. 2007). “If a defense is supported by the evidence, then the defendant is entitled to an instruction on that defense, even if the evidence supporting the defense is weak or contradicted, and even if the trial court is of the opinion that the evidence is not credible.” Id. at 658. However, “if the evidence, viewed in the light most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an instruction on the issue.” Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).
“In [the] absence of evidence of use or attempted use of deadly force by [the victim], the statutory defense permitted by [Section] 9.32 is not available, and a defendant is not entitled to a jury instruction” on self-defense. Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986); see Holmes v. State, 830 S.W.2d 263, 265 (Tex. App.—Texarkana 1992, no pet.); see also Gamino v. State, 537 S.W.3d 507, 512 (Tex. Crim. App. 2017) (“Appellant was entitled to receive a self defense instruction if there had been some evidence, even if contradicted, that he believed the display of his gun was immediately necessary to protect himself against the victim’s use or attempted use of unlawful force.”).
Jordan’s self-defense theory was based on the argument that he was justified in using deadly force against Royal because Royal’s fist constituted a deadly weapon. Royal was not the victim in the deadly conduct charge. Rather, the jury was charged with deciding whether Jordan committed deadly conduct against Varley or Crumpton. The evidence at trial established that Varley was not an attacker and instead sought to protect Jordan. Likewise, Crumpton testified he was not involved in the fight at all and did not kick or punch anyone. Crumpton’s testimony was not challenged, and nothing suggested that Crumpton used deadly force against Jordan. Accordingly, we find that Jordan was not entitled to an instruction justifying his use of deadly force against Varley and Crumpton. Consequently, we overrule Jordan’s first four points of error, concluding that Jordan was not entitled to an instruction on self-defense with respect to the deadly conduct charge. 
III. Jordan Failed to Preserve His Fifth Point of Error
During Jordan’s direct testimony, counsel asked Jordan what happened as he approached Silver Star, to which Jordan replied, “When I approached the restaurant, there was a guy that I had previously known from work. His reputation proceeds [sic] him everywhere, but he confronted me –” The State objected, prompting Jordan’s attorney to instruct Jordan to “[j]ust answer the question.” The State requested a bench conference in which the trial court admonished Jordan to refrain from rambling and instructed Jordan to answer only the question asked. Then, the following discussion transpired after the jury was excused:
[BY THE STATE]: Your Honor, the State’s objection as it relates to the motion in limine that the State submitted to this Court as it relates to the reputation and so forth as it relates to the victim in this case, and it’s clear to this Court that the victim has no prior felony convictions. It is improper to place in front of the jury a reputation response that this witness was submitting, and it places the jury in the state of mind that this victim has done something in the past, and therefore the Defendant would have some reason to do what he did that night.
THE COURT: That is sustained. . . . [D]id you advise your client of the motion in limine that this Court granted? 
[BY THE DEFENSE]: I don’t recall that I specifically went through it.
THE COURT: As an officer of the Court, did you not tell your client what our motions are and my rulings?
[BY THE DEFENSE]: No, sir, I did not.
THE COURT: All right. I’ll carry this forward. You ask the questions, and you answer the questions. We’re not rambling. We’re not deviating from my prior rulings. Is everybody crystal clear on this?
[BY THE DEFENSE]: Yes, Your Honor.
THE COURT: Everybody good?
[BY THE STATE]: Absolutely.
THE COURT: Crystal?
WITNESS: Yes, sir.
THE COURT: All right. Bring them back in.
“A party may claim error in a ruling to . . . exclude evidence only if the error affects a substantial right of the party and . . . a party informs the court of its substance by an offer or proof, unless the substance was apparent from the context.” Tex. R. Evid. 103(a)(2). On appeal, Jordan argues that the trial court erred in disallowing testimony of “Royal’s bad reputation for getting into fights and seriously injuring others.” However, aside from stating that Royal’s reputation preceded him, Jordan did not testify about what Royal’s reputation was. Because Jordan failed to make an offer of proof, nothing established that Royal had been in a fight before the Silver Star incident, much less that he had a bad reputation for getting into fights and seriously injuring others. Additionally, we cannot conclude that the trial court must have understood that Jordan sought to establish Royal’s reputation for fighting and injuring others from the context of the dialogue referenced above.
Accordingly, Jordan cannot now complain that the trial court erred in disallowing evidence that it never considered. See Fahrni v. State, 473 S.W.3d 486, 500 (Tex. App.—Texarkana 2015, pet. ref’d).  We overrule Jordan’s fifth point of error.
IV. Jordan Was Not Harmed by the Exclusion of Evidence of His Reputation for Honesty
Next, citing to Rule 608 of the Texas Rules of Evidence, Jordan also argues that the trial court erred in excluding evidence of his reputation for truth and veracity after the State allegedly attacked his character for truthfulness during his cross-examination. See Tex. R. Evid. 608. During Bryan’s direct examination, Bryan was asked, “Are you familiar with the reputation in the community of Patrick Jordan for being honest?” Bryan answered, “Yes, sir.” The State objected and requested a bench conference. During the bench conference, the State argued that counsel’s question was improper during the guilt/innocence phase of the trial. The trial court said, “In the guilt/innocence phase, it is. If we were in punishment, it would be different.” Jordan’s counsel responded, “Okay,” and the direct examination resumed.
Even assuming error, without deciding the matter, we cannot conclude that Jordan was harmed by the exclusion of evidence regarding his reputation for honesty. At trial, Jordan admitted that he discharged the firearm and asserted the justification of self-defense. Jordan argues that he was harmed by the exclusion of Bryan’s testimony regarding his honesty because it impaired his justification defense. Because we have determined that Jordan was not entitled to an instruction on self-defense where the evidence demonstrated that Varley and Crumpton did not use or attempt to use deadly force against him, we conclude that he was not harmed by the trial court’s exclusion of evidence regarding his reputation for honesty. We overrule Jordan’s last point of error.
We affirm the trial court’s judgment.
Bailey C. Moseley
Date Submitted: May 22, 2018
Date Decided: June 5, 2018
1. The surveillance recording showed Jordan and Bryan pausing very briefly as they said something to Varley before walking out to the parking lot.
2. Cashatt and Walker testified that a fist can be a deadly weapon.
3. See Morales v. State, 357 S.W.3d 1, 4-5 (Tex. Crim. App. 2011).
4. If a defendant is not entitled to an instruction and the trial court nonetheless gives it, any error in the instruction is harmless. Hughes v. State, 897 S.W.2d 285, 301 (Tex. Crim. App. 1994).
5. The record fails to reflect any ruling on the State’s motion in limine.
6. Moreover, Jordan now argues that such evidence was admissible under Rule 403, an argument that was not considered by the trial court.