Full Opinion

Opinion issued July 30, 2026. In the Court of Appeals for the First District of Texas ———————————— NO. 01-23-00852-CR ——————————— ALLEN DALE EDWARDS, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 208th District Court Harris County, Texas Trial Court Case No. 1503258 MEMORANDUM OPINION A jury found appellant Allen Dale Edwards guilty of murder and sentenced him to 46 years’ imprisonment. TEX. PENAL CODE § 19.02. In five issues, appellant complains that (1) the trial court made impermissible comments during voir dire; (2) the trial court erred by admitting video evidence that included statements made by appellant in violation of his Fifth Amendment and statutory rights; (3) the trial court erred by failing to properly charge the jury that the law of self-defense, if applicable, mandates that the jury acquit; (4) the evidence was insufficient to support the jury’s negative sudden-passion finding; and (5) the cumulative effect of the trial court’s errors rendered the trial fundamentally unfair. We overrule each of appellant’s issues. First, during jury selection, either the trial court’s comments were not statutorily proscribed or any improper comments were harmless. Second, any error in the admission of appellant’s videotaped statements was harmless. Third, the trial court properly charged the jury that, if it concluded that self-defense applied, it must acquit appellant. Fourth, the evidence is legally and factually sufficient to support the jury’s negative sudden-passion finding because there was no evidence that the complainant provoked or acted in concert with an individual who provoked appellant. Fifth and finally, because we do not find any error, appellant’s cumulative-error claim fails. We affirm the trial court’s judgment. Background A. Parties’ Relationships More than a decade before the murder, appellant began dating complainant Keyanna Gardiner. Eventually, they married. At some point after they were married, their relationship soured, complainant began dating Samone Massey, and appellant 2 and complainant divorced. Following the divorce, appellant was awarded custody of his and complainant’s two children. Over the next few years, complainant continued to litigate custody of the children and the future of her parental rights, which appellant sought to terminate. At the same time, appellant, complainant, and Massey fought and suspected each other of petty vandalism and property damage. A Baytown Police Department detective estimated that there had been “17, 18, give or take” police reports filed between appellant, complainant, and Massey. The three accused each other of physical violence, slashed tires, and smashed windows. Criminal charges occasionally materialized, but none ever stuck. B. Events of March 18 and 19, 2016 On the evening of March 18, 2019, Massey and complainant went to a party. After the party, around midnight, Massey, complainant, and others from the party went to a bar. Complainant drank at the bar, and Massey had at least four drinks. Massey and complainant left the bar at 2 a.m., the same time the bar closed, and Massey began driving the couple home. While driving home, Massey called appellant around 2:45 a.m. Massey “had been drinking” and she “was just upset over everything,” the “back and forth between [appellant], me, and [complainant].” During the call, Massey told appellant, “Go ahead and get your child support. Guess what? I’m a kill them hoes.” Massey 3 testified at trial that her threat referred to appellant and complainant’s children. Massey and appellant cursed each other and, toward the end of the call, appellant told Massey to come over so he could “whoop [her] ass.” After the call, appellant began getting ready for work. Still on her way home from the bar with complainant in the passenger seat, Massey drove to appellant’s house in Baytown, Texas. She parked the car in front of appellant’s house, grabbed an aerosol can, walked up to a window of appellant’s home, and smashed it. After smashing the window, she returned to her vehicle, backed up to turn around, and began driving to her and complainant’s home in La Porte, Texas. Less than 30 seconds after Massey drove away, appellant ran out his front door into the yard. Appellant testified that he saw the car driving away, recognized it as a white SUV, and believed it to be Massey’s and complainant’s car. Appellant ran back inside, got into his car, pulled out of the driveway, and began driving to La Porte, where he knew Massey and complainant lived. Appellant had a gun in his car. Only a few minutes later, Massey’s and appellant’s cars collide, and complainant dies in Massey’s passenger seat. Massey and appellant—the only eyewitnesses who testified—differ in their accounts of what happened in the period between appellant leaving his home at 3:28 a.m. and paramedics arriving on the scene at 3:34 a.m. Massey testified that, a few minutes after she had left appellant’s 4 house, a vehicle pulled up next to hers and swerved into her car. The vehicle then moved in front of Massey, she hit the back of the vehicle, and the two cars crashed on a flyover toward Fred Hartman bridge. The impact woke complainant, who asked Massey, “What’s going on?” After the crash, Massey saw appellant exit the other vehicle, a gun in his hands. Massey heard gunshots and “blacked out” in the car. She never heard another word from complainant. When Massey regained consciousness, a paramedic was at her car door. The paramedic treated Massey’s face, which was bleeding. Massey did not know how she had injured her face. Appellant testified that, after leaving his house and driving in the direction of La Porte, he saw the white SUV he recognized outside his home minutes earlier. He pulled up to the SUV and matched its speed. He testified that the SUV swerved into his car. Appellant then grabbed his handgun and fired through his driver’s window. In response to counsel’s asking at whom appellant was firing, appellant responded, “Samone.” Appellant did not know complainant was in the vehicle. After he fired his gun, the white SUV began slowing down, and appellant moved his vehicle in front to, in his words, “stop [Massey] from leaving the area.” He saw the white SUV grow larger in his rearview mirror, and the SUV struck the back of his car, twice. Appellant stopped his car, exited with his gun, and fired another shot. He testified that he was not aiming at anything. Appellant threw his gun over the edge of the flyover, but it was later recovered by police. 5 At 3:34 a.m., paramedics arrived. They pronounced complainant deceased at the scene. C. Conviction and Punishment Appellant was charged by indictment with complainant’s murder and tried on that charge. After the State and defense rested at trial, the trial court instructed the jury on the law applicable to murder, manslaughter, and the justification of self- defense. The verdict form allowed the jury to find appellant not guilty, guilty of murder, or guilty of manslaughter. The jury found appellant guilty of murder. The jury also decided punishment. After charging the jury with the law on punishment, the trial court submitted to the jury the special issue of sudden passion, which, if found, reduces the offense of murder from a first-degree to a second-degree felony. The jury returned a negative sudden-passion finding and assessed appellant’s punishment at 46 years’ imprisonment. The trial court orally pronounced appellant’s sentence and entered a judgment of conviction that conformed to the jury’s verdict. This appeal followed. Judicial Comments During Voir Dire In his second issue,1 appellant contends that, during voir dire, the trial court inappropriately commented on the weight of the evidence and conveyed her opinion 1 We first address appellant’s issues that would afford him the greatest relief. Williams v. State, 707 S.W.3d 233, 237 n.4 (Tex. Crim. App. 2024). 6 of the case in violation of article 38.05 of the Texas Code of Criminal Procedure2 and the Due Process Clause of the Fourteenth Amendment of the United States Constitution.3 Article 38.05 provides: In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case. TEX. CODE CRIM. PROC. art. 38.05. This provision “forbids a trial judge from making, at any stage of the proceeding previous to the return of the verdict, any remark calculated to convey to the jury his opinion of the case.” Irsan v. State, 708 2 The right to be tried in a proceeding devoid of improper judicial comments under article 38.05 of the Texas Code of Criminal Procedure is at least a category-two, waiver-only Marin right. Proenza v. State, 541 S.W.3d 786, 801 (Tex. Crim. App. 2017); see Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (describing category-two right as “rights of litigants which must be implemented by the system unless expressly waived”), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). The record does not reflect, and the State does not argue, that appellant plainly, freely, and intelligently waived his right to the trial court’s compliance with article 38.05. Accordingly, appellant’s complaint may be raised for the first time on appeal. 3 Two of our sister courts of appeals have recently held that the “right to be free from commentary that lessens the prosecution’s burden of proof” under the Due Process Clause is likewise a category-two, waiver-only Marin right. See Aguirre v. State, No. 14-25-00214-CR, ___ S.W.3d ___, 2026 WL 468009, at *7 (Tex. App.— Houston [14th Dist.] Feb. 19, 2026, pet. filed); Tuazon v. State, 661 S.W.3d 178, 192 (Tex. App.—Dallas 2023, no pet.). We assume, without holding, that appellant may raise his due-process complaint without a trial objection. See Rodriguez v. State, 728 S.W.3d 228, 236 (Tex. App.—Houston [1st Dist.] 2025, pet. ref’d) (assuming due-process complaint could be raised for first time on appeal but rejecting complaint on merits). 7 S.W.3d 584, 606 (Tex. Crim. App. 2025) (citation modified), cert. denied, 146 S. Ct. 1589 (2026). To establish that the trial court violated article 38.05, an appellant must show that that the trial court’s remark in front of the jury was “reasonably calculated to benefit the State or prejudice the defendant’s rights.” Id. (quoting Proenza v. State, 541 S.W.3d 786, 791 (Tex. Crim. App. 2017)). Similarly, to violate the Due Process Clause, a trial court’s comments must be improper. Rodriguez v. State, 728 S.W.3d 228, 237 (Tex. App.—Houston [1st Dist.] 2025, pet. ref’d) (citing United States v. Pena, 24 F.4th 46, 72 (1st Cir. 2022)). A trial court’s comment is improper if it expresses partiality. Id. (citing United States v. Marquez-Perez, 835 F.3d 153, 158 (1st Cir. 2016)). A comment is likewise improper if it “lessens the prosecution’s burden of proof.” Aguirre v. State, No. 14- 25-00214-CR, ___ S.W.3d ___, 2026 WL 468009, at *10 (Tex. App.—Houston [14th Dist.] Feb. 19, 2026, pet. filed); see Tuazon v. State, 661 S.W.3d 178, 194 (Tex. App.—Dallas 2023, no pet.) (holding judicial comments were “reasonably calculated to benefit the State or prejudice the defendant’s rights” by equating reasonable-doubt burden with preponderance-of-evidence burden). If the comments are improper, then the complaining party must show “serious prejudice.” Rodriguez, 728 S.W.3d at 237 (citing Pena, 24 F.4th at 72).4 A comment causes serious 4 The proper standard for reviewing improper judicial comments under the Constitution is unclear. The Texas Court of Criminal Appeals has suggested that an improper comment in front of a jury violates a criminal defendant’s due-process 8 prejudice if there is “a reasonable probability that, but for the error, the verdict would have been different.” Id. (quoting United States v. Rivera-Rodriguez, 761 F.3d 105, 112 (1st Cir. 2014)). Appellant complains that the following comments by the trial court during jury selection violate article 38.05 and the Due Process Clause: (1) the trial court gave a hypothetical that, while demonstrating the concepts of intent, knowledge, and recklessness, conveyed her opinion of the merits of a murder case involving like circumstances and (2) the trial court stated that “manslaughter is basically murder.” rights under the federal constitution when the comment “effectively destroy[s] a defendant’s constitutional presumption of innocence.” Irsan v. State, 708 S.W.3d 584, 606 (Tex. Crim. App. 2025) (quoting United States v. Haywood, 411 F.2d 555 (5th Cir. 1969) (per curiam)), cert. denied, 146 S. Ct. 1589 (2026). In Irsan, the Court of Criminal Appeals suggested that the “effectively destroyed” standard mirrors the harm analysis that we apply to errors that violate non-constitutional, statutory rights. Id. at 607. In Rodriguez v. State, this Court adopted a test for improper judicial comments that incorporates a “serious prejudice” analysis. 728 S.W.3d 228, 237 (Tex. App.—Houston [1st Dist.] 2025, pet. ref’d) (citing United States v. Pena, 24 F.4th 46, 72 (1st Cir. 2022)). On its review of judicial comments that violated the Due Process Clause, the Fourteenth Court of Appeals analyzed the comments for constitutional harm under rule 44.2(a) of the Texas Rules of Appellate Procedure. Aguirre v. State, No. 14-25-00214-CR, ___ S.W.3d ___, 2026 WL 468009, at *10 (Tex. App.—Houston [14th Dist.] Feb. 19, 2026, pet. filed). The Fifth Court of Appeals held that judicial comments that violate the Due Process Clause are structural error, not subject to a harm analysis. Tuazon v. State, 661 S.W.3d 178, 194 (Tex. App.—Dallas 2023, no pet.). Our decision in Rodriguez, which relies on federal case law, comports with the Court of Criminal Appeals’ directive that, when we choose “to address the merits of a federal claim,” our decision “to grant or deny relief must accord with federal law.” Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013); see Rodriguez, 728 S.W.3d at 234-37 (citing federal cases). In any event, we are bound by our decision in Rodriguez and apply it here, and whether we apply a “serious prejudice,” “effectively destroyed,” or constitutional harm standard under rule 44.2(a), we reach the same result. 9 In both instances, appellant complains that the comments had the effect of improperly lowering the State’s burden to prove murder. A. Murder and Manslaughter Hypotheticals To explain the elements of murder and manslaughter, the trial court offered the following hypothetical to the venire members: THE COURT: Let’s say that I don’t like the [venire member wearing a] purple shirt, but I don’t want to kill her. I just want to scare her. All right? So I go down, and I decide I’m going to shoot her in the foot. All right. And so I take my gun. I point it. I shoot her in the foot. But I don’t know the first thing about bullets and how they work or whatever. And I’m not a very good shot at that point, so I end up shooting her in such a way that it — the bullet travels to her heart, and she dies, right? Did I intend to cause her serious bodily injury? PROSPECTIVE JUROR: Yes. THE COURT: Yes. Did I do something or take an action that was clearly a danger to life? Wouldn’t you say that pointing a gun at someone and shooting them is a danger to life, right? All right. Appellant complains that the trial court, through this hypothetical, improperly informed the venire panel that, “if someone is shot with a firearm essentially anywhere on their body and death results, that this objectively indicates the shooter intended to hurt that person or for that person to die.” In passing, appellant also complains that the trial court “gave a hypothetical involving street racing where a child is hit by a car, having the jury venire agree that that would be manslaughter.” 10 Assuming, without deciding, that the trial court’s comments violated article 38.05 and the Due Process Clause, we review these errors for harm. Proenza, 541 S.W.3d at 801 (holding that error under article 38.05 must be evaluated for non- constitutional harm); Rodriguez, 728 S.W.3d at 237-38 (reviewing judicial comments that violate Due Process Clause for “serious prejudice”). A trial court’s violation of article 38.05 is harmless if the violation did not affect the defendant’s substantial rights. Proenza, 541 S.W.3d at 801. When a trial court’s comments are improper under the Due Process Clause, we will not reverse the conviction or punishment unless the complaining party can show “serious prejudice,” which exists when there is “a reasonable probability that, but for the error, the verdict would have been different.” Rodriguez, 728 S.W.3d at 237 (quoting Rivera-Rodriguez, 761 F.3d at 112). In Rodriguez, when evaluating the harmfulness of any error under both article 38.05 and the Due Process Clause, we considered (1) whether the venire panel was properly informed of the presumption of innocence, (2) whether the jury was properly instructed on the burden of proof, (3) whether the comment was repeated or emphasized, and (4) whether the comments were applied to the particular facts of the defendant’s case. Id. at 234, 238. Here, the trial court’s complained-of comments concern the mens rea elements of murder and manslaughter, issues contested at trial. However, that is where the similarities between the trial court’s hypotheticals and the facts at issue 11 end. In the trial court’s murder hypothetical, the trial court made clear that the actor had decided that she was “going to shoot” the victim in the foot, took aim, and fired. At trial, appellant contested that he intended to shoot complainant or even aimed at her. There was likewise no suggestion that appellant caused complainant’s death by striking her with his vehicle, which would have mirrored the trial court’s manslaughter hypothetical. Additionally, the trial court’s comments were made early in the trial, before the jury was empaneled and long before the jury was read the charge and reached a verdict. After being seated, the jury heard five days of testimony from 17 witnesses. On the sixth day, after both the prosecution and defense rested, the trial court then charged the jury with the applicable law. The State referenced the trial court’s “shoot her in the foot” hypothetical once during jury selection but noted that the jury must “unanimously agree that the defendant is guilty beyond a reasonable doubt.” This is the State’s only reference to the trial court’s hypothetical. At no point during trial—including opening statements and closing arguments—did the State emphasize the trial court’s comments or suggest that the jury should apply the logic of the trial court’s hypotheticals to the evidence presented. Given the difference between the facts in the trial court’s hypotheticals and the contested issue at trial, the passage of time between the comments and the verdict, the lack of any emphasis on the comments by the State, and lack of apparent error in the jury charge, we conclude that the trial court’s complained-of comments 12 did not affect appellant’s substantial rights or cause serious prejudice. Additionally, we would conclude beyond a reasonable doubt that any error in the trial court’s complained-of comments did not contribute to appellant’s conviction or punishment. Accordingly, any error was harmless. B. Comment on Manslaughter Appellant next complains of the trial court’s statement to the venire members that, “[M]anslaughter is basically murder.” Out of context, the statement is overly simplistic. However, viewed in context, the trial court’s comment does not suggest to the jury that they should convict appellant of murder if the State proves beyond a reasonable doubt each element of manslaughter. The trial court stated, in relevant part: Now, sometimes, in this process of having someone charged with something, like in this case, murder, as you go through the evidence, there may be a situation where there’s evidence of what we call a lesser included charge. So what will have to happen there is that the charge is, in fact, murder. But as you go through the process, the evidence may shake out where maybe it wasn’t really, in this case, intentional, or there wasn’t any intent to cause serious bodily injury or a clear act dangerous to life. But someone died, and you think, well, maybe it’s because their person — let’s just use this — action was reckless. All right. So then, the jury could be charged, or instructed in the jury charge, that if they don’t find that there is sufficient evidence for murder, then they could consider the lesser — what we call a lesser included charge. In that scenario, it would be manslaughter. All right? So manslaughter is basically murder. 13 You’re going to have someone — a life is going to be lost, but it’s not going to be intentional. It’s not going to fall into the other examples that we have. It’s reckless. The behavior is reckless. (Emphasis added.) The trial court’s explanation overall is consistent with Texas law. Manslaughter is a lesser-included offense of murder and differs from murder only in the respect that a less culpable mental state—recklessness—establishes its commission. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012) (concluding that manslaughter is a lesser-included offense of murder under section 19.02(b)(2) of the Texas Penal Code); Schroeder v. State, 123 S.W.3d 398, 400-01 (Tex. Crim. App. 2003) (noting that manslaughter is a lesser-included offense of murder); see TEX. CODE CRIM. PROC. art. 37.09(3) (“An offense is a lesser included offense if . . . it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.”). The trial court correctly stated that, if there is sufficient evidence to raise the issue, the jury may be instructed on a lesser-included offense of murder and, “[i]n that scenario, it would be manslaughter. . . . [A] life is going to be lost, but it’s not going to be intentional. . . . It’s reckless.” The trial court’s explanation of manslaughter comports with section 19.04(a) of the Texas Penal Code, which defines the offense of manslaughter, and with Cavazos. Appellant has not shown that the trial court’s out-of-context remark 14 was calculated to benefit the State or prejudice appellant’s rights or that the remark expressed partiality or lessened the prosecution’s burden of proof. We overrule appellant’s second issue. Motion to Suppress In his third issue, appellant contends that the trial court erred by denying his motion to suppress a video of statements he made to a deputy constable at the scene of the crash. He argues that, when he made those statements, he was subject to a custodial interrogation but was never provided any warnings required by Texas statute and the Fifth Amendment of the United States Constitution. The State argues that appellant was neither in custody nor subject to an interrogation at the time he made the statements he sought to suppress. A. Suppression Hearing During the testimony of deputy constable John Pernell, the State sought to admit a video recording from the dash camera of Pernell’s patrol vehicle. Pernell was the first law enforcement officer on the scene on March 19, 2016. Pernell testified that, when he arrived, he saw a man—later identified as appellant—in a “physical altercation” with one of the paramedics. After learning that complainant was unresponsive with a gunshot wound, Pernell went to appellant to ask him about the crash and his involvement. Among other things, Pernell asked, “Were you 15 involved in this?” According to Pernell, appellant answered, “I ran her down.” At that point in time, Pernell decided to detain appellant and handcuff him. Following that portion of Pernell’s testimony, the State sought to admit and play for the jury a video that included statements that appellant made while in handcuffs at the scene. Appellant’s counsel objected to the video being played to the extent it included statements made by appellant after Pernell placed appellant in handcuffs. In response to appellant’s objection, the trial court held a suppression hearing outside the presence of the jury. During the hearing, Pernell was the only witness to testify. Neither the State nor appellant played the video at the hearing.5 Pernell confirmed that, “Immediately after he said, quote, ‘I ran her down,’ is when I decided to place him into handcuffs . . . .” After Pernell handcuffed appellant, he asked appellant, “Did you shoot her then?” Appellant replied, “I chased her down from my house.” According to Pernell, he asked the questions “to figure out what happened on the scene.” Pernell agreed that, at the time of this question, appellant was not free to leave, but he contended that appellant was not under arrest. Pernell further testified 5 Barring exceptions not applicable here, our review of a trial court’s ruling on a motion to suppress is limited to the evidence adduced at the suppression hearing. Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012); Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); see Taylor v. State, 509 S.W.3d 468, 482 n.7 (Tex. App.—Austin 2015, pet. ref’d) (reviewing trial court’s suppression ruling but not considering video that appellant sought to suppress because video was not played for trial court prior to ruling on motion to suppress). 16 that he handcuffed appellant because appellant was “very mobile on the scene,” Pernell did not know whether appellant was intoxicated, and Pernell had already seen appellant push a paramedic, prompting him “to calm the scene down.” Pernell maintained that he had not identified a crime, but he privately suspected that appellant had caused the car collision. Pernell told appellant that appellant was being detained, Pernell did not tell appellant that appellant was being arrested, and Pernell informed appellant that Pernell needed to speak with Baytown police officers. Following Pernell’s testimony during the suppression hearing, appellant’s counsel argued, “once [appellant] was asked and once he made a statement that ‘I ran her down,’ . . . he was in custody . . . .” The State argued that (1) appellant was not in custody because he was not under formal arrest and (2) appellant’s statements after being placed in handcuffs were not the result of any interrogation. The trial court admitted the video, overruling appellant’s objection. B. Preservation As an initial matter, we address whether this complaint has been preserved for our review. TEX. R. APP. P. 33.1(a). The State contends that (1) the complaint on appeal does not match appellant’s objection at trial and (2) appellant argued in the trial court only that he was in custody, not that he was interrogated. We disagree that appellant failed to preserve this complaint for our review. When the State first attempted to introduce and admit the video recording of 17 appellant’s statements, appellant’s counsel objected: “Judge, I have no objection to anything being played as far as up until . . . when he was detained after he supposedly said he ran her down, according to the police officer, but anything after that I think we’d have to have a hearing[.]” At the close of the suppression hearing, appellant’s counsel argued that appellant was in custody once he was placed in handcuffs. During the suppression hearing, both counsel for the State and for appellant questioned Pernell on matters that concerned custody and interrogation. For example, Pernell was examined regarding the precise timing of when he placed appellant in handcuffs, why he detained appellant, whether he told appellant that appellant was under arrest, and what questions he asked appellant following his detention. Given the context of the questioning, appellant’s objection was specific enough to put the trial court on notice that appellant objected to admission of any statements resulting from a custodial interrogation. See Wyborny v. State, 209 S.W.3d 285, 290 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding imprecise objection that defendant had “right not to respond” was sufficient to preserve complaint under Texas Constitution based on context of case).6 6 To the extent appellant argues on appeal that the trial court erred in the admission of Pernell’s testimony that, prior to being handcuffed, appellant told Pernell, “I ran her down,” we agree with the State that that error is not preserved for our review. Appellant did not object at trial to the State’s soliciting that testimony and, in any event, the record is clear that the statement was elicited prior to appellant’s detention in response to a non-interrogative question: “Were you involved in this?” See Jones v. State, 795 S.W.2d 171, 174 & n.3 (Tex. Crim. App. 1990) (noting that “broad 18 C. Analysis The Fifth Amendment of the United States Constitution guarantees that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. Because of that right, the State “may not use any statements stemming from ‘custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self- incrimination.’” Wilkerson v. State, 173 S.W.3d 521, 526 (Tex. Crim. App. 2005) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). Those procedural safeguards take the form of warnings that law enforcement officers must provide before conducting any custodial interrogation. Miranda, 384 U.S. at 444. Specifically, the officer must warn a person in custody that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. When an officer fails to provide Miranda warnings, the “[u]nwarned statements obtained as a result . . . may not be used as evidence by the State in a criminal proceeding during its case-in-chief.” Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (citing Miranda, 384 U.S. at 444). Article 38.22 of the Texas Code general questions such as ‘what happened’ upon arrival at the scene of a crime” fall outside the scope of “interrogation”). 19 of Criminal Procedure likewise requires the exclusion of any unwarned statements that result from a custodial interrogation. TEX. CODE CRIM. PROC. art. 38.22. Appellant contends that his unwarned statement “I chased her down” was the result of a custodial interrogation and that the trial court erred by failing to suppress the video recording of the statement. We do not address whether the trial court erred because any error was harmless. See Owens v. State, 473 S.W.3d 812, 816 n.3 (Tex. Crim. App. 2015) (assuming error and finding error harmless). Any error in the admission of a statement that should have been suppressed under Miranda is constitutional in nature and requires reversal unless we “determine[] beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a); Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App. 2003) (reviewing erroneous admission of unwarned statement for constitutional harm). We must “calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence.” Foyt v. State, 602 S.W.3d 23, 45 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) (quoting Jones, 119 S.W.3d at 777). Here, regardless of whether the video that included the statement “I chased her down” should have been suppressed, Pernell had already testified, without objection, that appellant told him “I ran her down” in response to “Were you involved in this?” The former statement is cumulative of the latter. See Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996) (holding admission of unwarned 20 statement harmless because it was cumulative of properly admitted statement); see also Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting that any error in admission of exhibit was harmless in light of proper admission of “very similar” exhibits”). For example, in Dowthitt, the Texas Court of Criminal Appeals held harmless the erroneous admission of the appellant’s videotaped interview that recounted details the appellant observed at the murder scene. 931 S.W.2d at 263. In concluding the error was harmless, the Court of Criminal Appeals noted the non- erroneous admission of appellant’s confession that he was present during the murders: “Compared to appellant’s admission that he was there,” which was a “crucial, damaging piece of evidence,” “the details of what occurred while he was there appear to have little incriminating value.” Id. Here, the contrast between appellant’s two statements is even less stark. Because “chased her down” is cumulative of “ran her down,” we hold that any error in the admission of the former did not contribute to appellant’s conviction or punishment beyond a reasonable doubt. We overrule appellant’s third issue. Jury Charge In his fourth issue, appellant contends that the trial court erred by instructing the jury that it “should” rather than “must” or “will” acquit appellant if it found that 21 he acted in self-defense.7 Appellant complains that the verb “should” is synonymous with “may” and does not convey the mandatory nature of the action to the same extent as “must” or “will.” A. Standard of Review and Applicable Law Jury instructions inform the jury of the applicable law and how to apply it to the facts of the case. Alcoser v. State, 663 S.W.3d 160, 164-65 (Tex. Crim. App. 2022). “When self-defense is law applicable to the case, the trial court must inform the jury under what circumstances it should acquit a defendant of an offense based on self-defense.” Id. at 169; Mendez v. State, 545 S.W.3d 548, 556 (Tex. Crim. App. 2018). The Texas Penal Code requires that, if self-defense is submitted to the jury, “the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.” TEX. PENAL CODE § 2.03(d) (emphasis added); see id. § 9.02 (stating that justified conduct is defense to prosecution); id. § 9.31 (prescribing grounds under which conduct is justified as self-defense). B. Analysis In its instructions to the jury, the trial court generally used “must” or “will” to dictate to the jury what it was required to do under certain circumstances. For 7 A criminal defendant may raise jury-charge error for the first time on appeal. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). His failure to object in the trial court impacts only how we analyze that error for harm. Id. 22 example, the trial court instructed the jury that, if it made certain findings, “then [it] will find the defendant guilty of murder, as charged in the indictment.” The trial court further instructed that, if the jury did not find each element of murder beyond a reasonable doubt or could not agree, then it “will next consider whether the defendant is guilty of the lesser offense of manslaughter,” and, if it made certain other findings, “then [it] will find the defendant guilty of manslaughter.” The trial court also instructed the jury that it “must” resolve reasonable doubts in favor of the defendant. When charging the jury on the law of self-defense, the trial court generally used “should” instead of “must” or “will.” The relevant portions of those instructions stated: In determining the existence of real or apparent danger, you should consider all the facts and circumstances in evidence before you, . . . and, in considering such circumstances, you should place yourselves in the [appellant’s] position at that time and view them from his standpoint alone. Therefore, if you find from the evidence beyond a reasonable doubt that [appellant] did shoot [complainant] with a firearm, as alleged, but you further find from the evidence [certain findings necessary for the application of self-defense], then you should acquit the defendant on the grounds of self-defense; or if you have a reasonable doubt as to whether or not the defendant was acting in 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, not guilty. 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 the defendant, 23 under the circumstances as viewed by him from his standpoint at the time, did not reasonably believe that the degree of force actually used