Clint Felder v. the State of Texas

Opinion issued September 15, 2026. In the Court of Appeals for the First District of Texas ———————————— NO. 01-24-00748-CR ——————————— CLINT FELDER, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 18-CR-1411 MEMORANDUM OPINION A jury found appellant Clint Felder guilty of murder and sentenced him to 60 years’ imprisonment. TEX. PENAL CODE § 19.02. On appeal, appellant complains that (1) the evidence is insufficient to support the jury’s guilty verdict because no rational jury could have rejected his self-defense theory, (2) the trial court abused its discretion by admitting into evidence copies of two search warrants, (3) the State improperly commented on appellant’s silence, and (4) the trial court failed to instruct the jury on the law applicable to protection of one’s property. We overrule each of appellant’s issues. First, a rational jury could have found that appellant did not reasonably believe that deadly force was immediately necessary to protect himself and, thus, rejected his self-defense theory. Second, any error in the trial court’s admission of two search warrants was harmless because the statements in the warrants to which appellant objected—namely, that a murder was being investigated—were adduced through witness testimony without objection. Third, the State did not impermissibly comment on appellant’s silence by eliciting testimony that appellant refused to speak with a law enforcement officer when appellant was neither under arrest nor in custody at the time of his refusal. Fourth, because complainant Amy Brown died as a result of deadly force—a gunshot to the head—the trial court did not err by refusing to instruct the jury on the use of non- deadly force to protect one’s property. Background Years before her death, complainant Amy Brown began a romantic relationship with appellant Clint Felder, and the couple had children together. At 2 some point, appellant and complainant separated, and appellant began staying in the home of Roy Dixon at 3510 Palm in Texas City, Texas. On April 27, 2018, complainant told Dixon in a text message, “I hate you,” and threatened to kill everyone inside his home, which at the time included Dixon, appellant, Gregory Guillory, Ashley Moore, Moore’s son, and Dixon’s three children. There is no evidence regarding complainant’s awareness of who was present in Dixon’s home or why she sent that text message to Dixon. After receiving the text message, Dixon left the house for a pre-planned trip to Austin. That evening, at approximately 9:00 or 10:00 p.m., complainant arrived at Dixon’s home. Moore and two of Dixon’s children—all of whom were present that night—testified that complainant arrived angry and upset. According to Moore, complainant “kicked open the door,” waking Moore and her son. Moore testified that appellant and Guillory told complainant to leave, but complainant “kept coming back in. . . . [Appellant and Guillory] finally like pulled her by her feet and pulled her out.” Moore further testified that complainant appeared drunk, and “[h]er eyes were red like she had been crying.” Approximately 10 minutes after being dragged out of the house, complainant smashed a window in appellant’s room and re-entered the home.1 Complainant’s 1 Moore initially testified that complainant re-entered the home through the front door. However, later in her testimony, Moore stated that she did not know how complainant re-entered the home. 3 arm was bleeding, and Moore helped clean the blood from complainant’s arm. Complainant and appellant then began an extended argument. Around midnight, appellant left the house at 3510 Palm—apparently with complainant still inside—and drove to see a new house purchased by his friend, Ryan Friloux. Friloux testified that appellant did not stay “too long,” and Friloux drove appellant back to Dixon’s house, leaving appellant’s car behind at Friloux’s house. Appellant wanted to return to Dixon’s house to see if complainant “was asleep yet because she was drunk, tripping.” Friloux waited in his truck while appellant went inside Dixon’s house “for a little while.” Appellant returned to the vehicle with clothes and began loading them into Friloux’s truck. After loading Friloux’s truck, appellant went back inside and Friloux continued waiting in his vehicle. Friloux did not testify why appellant loaded clothes into Friloux’s truck or why Friloux waited on appellant. Moore testified that, at around 2:00 a.m., after appellant returned from Friloux’s house, Moore stepped out of the bedroom in which she was sleeping and saw complainant and appellant. According to Moore, complainant was sitting behind a chair and asked Moore to call 9-1-1. Moore testified that neither appellant nor 4 complainant appeared to be injured, and Moore did not see either of them holding a gun.2 Moore could not find her phone, so she went across the street with her son to a neighbor’s house to ask to borrow a phone. The neighbor did not answer the door, but Moore saw a truck idling in the street and asked the driver—Friloux—to take her and her son to her father’s home.3 Minutes later, before Moore and her son got in Friloux’s truck, John ran out of the house, panicking. John then went back inside the house to retrieve his shoes while Moore and her son climbed into the truck. Appellant and complainant were in John’s room, and appellant told John to “get out.” At trial, John acknowledged that he had told police officers in an interview the day after complainant’s death that complainant had said, “Don’t shoot me,” but he did not remember making the statement. After grabbing 2 Two of Dixon’s minor children, “John” and “Amanda,” to whom we refer by fictitious names to protect their identities, testified that they saw complainant wielding a knife. According to John, complainant entered the home with a knife. Later that night, he saw complainant holding the knife and appellant bleeding from the back of his head. Amanda testified that she saw complainant retrieve a knife from the kitchen and throw it at appellant, hitting the back of his head. Four days after complainant’s death, police recovered from Dixon’s home several knives, including one that appellant’s counsel argued at trial complainant had thrown at appellant. Berenger Chan, a forensic scientist, analyzed swabs taken from each of the knives and compared any genetic material extracted from those swabs against a known sample from appellant. For each of the knives, either Chan could not obtain an interpretable genetic profile from the knife swab or his analysis excluded appellant as a contributor the genetic profile. 3 Neither that night nor at trial did Moore know the identity of the driver, but it is clear from her and Friloux’s testimony that Friloux was the driver. 5 his shoes, John unsuccessfully attempted to wake his sisters, but the two girls had locked the bedroom door and did not answer John’s knocking. John then left the house again to join Moore and her son in Friloux’s truck. According to Moore, John, while running out of the house, said, “Aunt Ashley, did you hear that? . . . I think Uncle Clint [appellant] just shot Amy [complainant].” Although John did not remember asking Moore whether she heard anything, he remembered hearing a gunshot while leaving the house.4 John never saw appellant or complainant with a gun. Moore did not hear a gunshot. At some point, although the timing is unclear, Moore heard complainant scream “3510 Palm,” the street address of Roy Dixon’s home, and “[b]oth my arms are broke.” After John rejoined Moore and her son outside in Friloux’s truck, appellant walked out of the house. Moore did not see any blood on appellant, and he appeared to be walking normally. According to Moore, Friloux told appellant, “I’m not taking you nowhere. I’m taking them to where she needs to go.” Appellant walked back inside, and Friloux drove Moore, Moore’s son, and John to Moore’s father’s home. Friloux denied seeing appellant exit the house. 4 It is unclear from Moore’s testimony whether John made these statements the first or second time he left the house. Although John did not remember making the statements, he remembered hearing a gunshot when he left the house the second time, i.e., after running back inside to grab his shoes. 6  At 2:14 a.m., David Heckard, an officer with the Texas City Police Department (TCPD), responded to a 9-1-1 call from 3510 Palm. In a recording of that call, which was played for the jury, a feminine-sounding voice5 states, “3510 Palm. . . . He hit my head. My head is bleeding. . . . I’m at 3510 Palm. Please hurry.” The caller screams, followed by abrupt silence. When Officer Heckard arrived at the home, he saw no cars in the driveway. A fellow officer who arrived ahead of Officer Heckard was banging on the house’s windows and had already knocked on the door. No one answered. Officer Heckard testified that he did not know whether exigent circumstances justified entering the home, so he and the other officer left without entering the home. At 3:44 a.m., Officer Heckard returned to 3510 Palm in response to a second 9-1-1 call. In a recording of that call, which was also played for the jury, a masculine- sounding voice6 states, “Help me. . . . [unintelligible] shot me.” The caller is then heard moaning. The caller does not respond to the dispatcher’s questions, and the dispatcher says to someone in the room with her, “No, it’s the same phone number that called earlier, too.” She then asks the caller, “Are you at 3510 Palm . . . ?” No 5 Although the State argued at trial that the caller was complainant, no witness identified the caller. 6 No witness identified the caller. 7 response is audible from the recording. The line remains connected, and police officers are heard entering the home. Officer Heckard and other TCPD officers discovered appellant injured and face down on the floor and complainant unresponsive. The officers searched the home and backyard for any other individuals and discovered no one else in or near the home. Appellant had a wound on the back of his head and was flown to a hospital by air ambulance. An autopsy of complainant revealed that she had two gunshot wounds—possibly the result of a single shot—to her head and right arm. The medical examiner testified that complainant died instantly from the gunshot to the head. Sufficiency of Evidence In his first issue, appellant challenges the sufficiency of the evidence to support the jury’s rejection of his self-defense claim. He argues that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. A. Standard of Review When a criminal defendant challenges the sufficiency of the evidence to support his conviction, “we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. 8 App. 2018) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); see Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (holding that appellate courts do not apply separate factual-sufficiency review when defendant challenges sufficiency of evidence to support conviction). This standard “recognizes the trier of fact’s role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence.” Braughton, 569 S.W.3d at 608 (quoting Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011)). Once a criminal defendant produces some evidence that would support a rational finding in his favor on self-defense, the State then bears the burden of persuasion to disprove the issue of self-defense. Id. Notably, the State’s burden is not one of production. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). The State need not produce additional evidence, but it must prove its case beyond a reasonable doubt. Rankin v. State, 617 S.W.3d 169, 182 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (citing Saxton, 804 S.W.2d at 913). Thus, when we review the sufficiency of the evidence to support an appellant’s conviction and the jury’s implied rejection of self-defense, “we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.” Braughton, 569 S.W.3d at 609 (citation modified). 9  We must defer to the jury’s determination of the witnesses’ credibility and the weight to be given to the evidence. Mitchell v. State, 590 S.W.3d 597, 604 (Tex. App.—Houston [1st Dist.] 2019, no pet.). If the defensive evidence is “merely consistent with the physical evidence at the scene” that supports the defendant’s conviction of the offense, we may not find the evidence insufficient and must instead defer to the credibility determinations of the jury, which is “free to accept or reject the defensive evidence.” Saxton, 804 S.W.2d at 914. B. Analysis A person commits murder if he “intentionally or knowingly causes the death of an individual” or “intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.” See TEX. PENAL CODE § 19.02(b)(1)-(2). However, “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.” Id. § 9.31(a). Deadly force in self-defense is justified when a person reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful deadly force or to prevent the other’s imminent commission of murder, among other crimes. Id. § 9.32(a). Complainant died instantly from a gunshot wound to the head. Appellant and complainant had been arguing throughout the night and, when police arrived at 10 Dixon’s home, TCPD officers found appellant and complainant together. The only other individuals in the home at or near the time of complainant’s death were: three of Dixon’s children, all under the age of 10; Moore; and Moore’s two-year-old son. Appellant argues that he shot the complainant in self-defense. At trial, appellant’s counsel advanced the following theory: There were two gunshots, not one, and complainant fired the first shot at appellant. In self-defense, appellant then fired the second shot, which struck and instantly killed complainant. In advancing this theory, appellant’s counsel relied on the following evidence: • Due to the position of complainant’s gunshot wounds on her head and arm, the medical examiner could not rule out the possibility that the wounds resulted from a single, continuous shot. • The gunshot wound to complainant’s head was instantly fatal. • An expert for the defense, Michael Bell, testified that, in his opinion, a wound on the back of appellant’s head was characteristic of a bullet entrance wound, that a cap found at the scene had a hole that was characteristic of a bullet hole, and that appellant’s, but not complainant’s, injuries were consistent with appellant’s wearing the cap. • A witness for the State, Detective Donald Ray Cox, testified that the hole in the cap was “consistent with a bullet hole.” • The medical examiner agreed that, if complainant was wearing the cap, she “probably” was not wearing it “right on her forehead.” However, the evidence is also consistent with the State’s theory that appellant was not shot. Police officers recovered only one fired bullet at the scene. No witness observed appellant being shot, and appellant did not testify. The cap was not found 11 on either appellant’s or complainant’s head and, although bloodied, was not submitted for forensic genetics testing. Even if the jury believed that complainant shot appellant, the jury was not compelled to accept appellant’s self-defense theory. The State needed to disprove only one element of self-defense to negate the justification. Rodriguez v. State, 524 S.W.3d 389, 395 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); see Harrod v. State, 203 S.W.3d 622, 627-28 (Tex. App.—Dallas 2006, no pet.) (holding that “jury is not required to agree unanimously on the specific component of self-defense on which it is not persuaded”). To use deadly force in self-defense, the defendant must reasonably believe that the use of deadly force is “immediately necessary.” TEX. PENAL CODE § 9.32(a)(2). The use of deadly force is immediately necessary to defend oneself if that force is “needed at that moment,” i.e., “when a split second decision is required.” Henley v. State, 493 S.W.3d 77, 89-90 (Tex. Crim. App. 2016) (citation modified). The jury heard a recording of a 9-1-1 call from 2:14 a.m. on the morning of the complainant’s death in which a feminine-sounding voice states, “3510 Palm. . . . He hit my head. My head is bleeding. . . . I’m at 3510 Palm. Please hurry.” The caller screams, followed by abrupt silence. The jury could have reasonably inferred that complainant was the caller based on the caller’s statement “I’m at 3510 Palm” and witness testimony regarding individuals who were present at the home that night. Cf. 12 Jones v. State, 458 S.W.3d 625, 630 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (noting that State may establish actor’s identity by inferences). Counsel for both the State and appellant suggested to the jury that complainant was the caller and that her screams were ended by an instantly fatal gunshot wound to the head. On the recording, the caller states that she is injured and is pleading for help. Additionally, even crediting appellant’s argument that complainant injured appellant—whether with a knife, gun, or both—there is no direct evidence regarding the timing of appellant’s injuries or whether complainant’s use or threat of deadly force was likely to recur. See Smith v. State, 638 S.W.2d 208, 210 (Tex. App.—Fort Worth 1982, no pet.) (holding, as matter of law, that defendant was not justified in using deadly force, despite being struck by victim, where victim made no further advances after defendant drew gun). Someone, presumably complainant, called 9-1-1 and pled for help at 2:14 a.m. Roughly one and a half hours later, at 3:44 a.m., a man, presumably appellant, called 9-1-1 and reported that he had been shot. From the gap between the two calls, the jury could have reasonably inferred that appellant shot complainant first, not the other way around, to the extent that the jury believed that complainant shot appellant at all. Based on this evidence, including the gap between the two 9-1-1 calls, the jury could have rationally believed that appellant’s use of deadly force against complainant was not immediately necessary and rejected appellant’s self-defense theory on that basis. See Braughton, 569 S.W.3d at 611-12 13 (concluding that sufficient evidence supported jury’s implicit rejection of self- defense where there was contested testimony regarding whether victim had reached for weapon in motorcycle saddlebag). We overrule appellant’s first issue. Admission of Search Warrants In his second and third issues, appellant complains that the trial court erroneously admitted into evidence copies of two search warrants. He complains that the warrants are irrelevant to any claim or defense at issue, that the warrants include inadmissible hearsay, and that the warrants’ probative value, if any, is substantially outweighed by the danger of unfair prejudice. The State responds that (1) appellant’s unfair-prejudice argument was not made at trial and, therefore, is not preserved; and (2) the statements in the search warrants are not hearsay because they were not offered in evidence to provide the truth of the matter asserted in the statements.7 A. Background During the testimony of Detective Jeff Winstead, the State offered and the trial court admitted, over objection, (1) a copy of a warrant to search Roy Dixon’s home and seize specified items within it (the Home Warrant) and (2) a copy of a warrant to search and seize appellant’s cellphone records (the Phone Records 7 The State concedes that appellant’s hearsay complaint on appeal comports with his objection at trial. 14 Warrant). In the version admitted as an exhibit at trial, neither warrant includes a copy of the affidavit in support of the warrant. However, each warrant specifies the places to be searched and the items that are authorized to be seized. Additionally, and relevant to appellant’s complaints on appeal, each warrant includes statements related to the charges against appellant. The Home Warrant authorizes any sheriff or peace officer of Galveston County, Texas, to “take custody of the said items or articles that may have been used during the crime.” (Emphasis added.) The Phone Records Warrant states, “Crime Being Investigated: Murder.” B. Analysis “Recitals contained in a search warrant and return are hearsay and are not admissible before the jury for any purpose, and their admission over objection is error.” Torres v. State, 552 S.W.2d 821, 824 (Tex. Crim. App. 1977); accord Sanchez v. State, 243 S.W.3d 57, 64 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Such statements may be admissible if the defendant challenges probable cause and the jury must decide whether an officer reasonably believed the facts necessary to establish probable cause. Saldinger v. State, 474 S.W.3d 1, 7 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). A copy of a search warrant may also be admissible if the defendant denies the existence of a warrant and the warrant’s existence is relevant to an issue before the jury. Baxter v. State, 66 S.W.3d 494, 498 n.2 (Tex. App.—Austin 2001, pet. ref’d). 15  Neither probable cause nor the existence of the warrant was an issue at trial. Appellant’s counsel even conceded that Detective Winstead could testify “that they had a warrant.” At trial, and following appellant’s objection, the State did not offer any exception to hearsay or explain why the statements were not being offered “to prove the truth of the matter asserted in the statement.” TEX. R. EVID. 801(d)(2). Regarding the Home Warrant, the State argued to the trial court that the warrant did not include hearsay statements because “[i]t’s the court order that gave [Detective Winstead] legal [sic] right to go in the residence . . . .” As to the Phone Records Warrant, the State similarly argued, “[I]t doesn’t contain any hearsay statements as to the crime being investigated.” Both warrants include out-of-court statements offered to prove the truth of the matter asserted. The Home Warrant states that a crime occurred, and the Phone Records Warrant states that a murder is being investigated. The State sought to establish that Detective Winstead had a “legal right” to enter the home and that Detective Winstead “has every right to say the nature of the crime that’s being investigated.” The admission of the warrants was error. Torres, 552 S.W.2d at 824; Saldinger, 474 S.W.3d at 7. However, the improper admission of evidence does not warrant reversal unless the error affected appellant’s substantial rights. TEX. R. APP. P. 44.2(b); see Saldinger, 474 S.W.3d at 7 (reviewing erroneous admission of search warrant for 16 harm as non-constitutional error). An error affects a criminal defendant’s substantial rights when “it has a substantial and injurious effect or influence in determining the jury’s verdict.” Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). The improper admission of evidence is harmless if the same evidence is presented at trial without objection, either before or after the complained-of ruling. See Saldinger, 474 S.W.3d at 7 (citing Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Amador v. State, 376 S.W.3d 339, 345 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)). Here, Detective Winstead testified, without objection, that warrants were needed for the searches he conducted and that the warrants were for a “homicide investigation.” Moreover, appellant’s self-defense theory is a “justification” type of defense that “does not negate any element of the offense.” Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007); Prior v. State, No. 14-15-00080-CR, 2016 WL 716535, at *2 (Tex. App.—Houston [14th Dist.] Feb. 23, 2016, no pet.) (mem. op., not designated for publication) (“An accused must admit to all the elements of a crime charged before the accused can to rely on a legal justification such as self- defense.”). “By definition, a justification defense does not rest upon the negation [of] a specific element of the charged offense, but instead excuses what would otherwise constitute criminal conduct.” 21 TEX. JUR. 3D Criminal Law: Defenses § 98. By raising self-defense, appellant has admitted the essential elements of 17 murder but contends that his criminal conduct is excused. Because appellant relied on the justification of self-defense and Detective Winstead testified, without objection, that he was investigating a murder, the erroneous admission of the warrants did not have a substantial and injurious effect or influence in determining the jury’s verdict. We overrule appellant’s second and third issues. Comment on Appellant’s Silence In his fourth issue, appellant complains that the trial court erred by denying his oral motion for a mistrial after the State elicited testimony that commented on appellant’s silence.8 The State responds that, because appellant was not in custody at the time of his silence, any comment on his silence did not infringe his rights under the Fifth Amendment of the Constitution. The State further argues that, even if the comment was improper, the trial court’s instruction to the jury cured any error. At trial, Detective Winstead testified that, while appellant was recovering in the hospital, he tried to contact appellant “[n]umerous times” but appellant “wouldn’t speak to me, no.” Appellant’s counsel objected and moved for a mistrial. The trial court denied appellant’s oral motion for a mistrial but instructed the jury as follows: 8 Appellant also complains that the trial court “erred in overruling the defense objection.” However, the trial court sustained the objection and gave a curative instruction to the jury. 18  [T]he fact that the defendant didn’t talk to the officer is not to be taken by you for any purpose against the defendant, okay. This is just a one, two, three of the things that occurred during the investigative process; but because it was mentioned that he didn’t talk to the detective, I’m taking time to stop and say you can’t hold that against him. You can’t use that as information that would be negative to him. Although the Fifth Amendment precludes the State from commenting on a defendant’s refusal to testify, “[a] defendant’s silence before trial . . . is considerably less protected . . . .” Salinas v. State, 369 S.W.3d 176, 178 (Tex. Crim. App. 2012), aff’d, 570 U.S. 178 (2013) (plurality op.). When an individual has not been arrested or subjected to a custodial interrogation, his “interaction with police officers is not compelled” and, therefore, “the Fifth Amendment right against compulsory self- incrimination is ‘simply irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak.’” Id. at 179 (quoting Jenkins v. Anderson, 447 U.S. 231, 241 (1980) (Stevens, J., concurring)). This Court has previously addressed this issue on nearly identical facts. See Buentello v. State, 512 S.W.3d 508, 520-21 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). In Buentello, during the State’s direct examination, an officer testified that he attempted to contact the defendant “during the early stage of his investigation but was unable to speak with him” and that he requested the defendant to give a statement but “was told that [the defendant] had a lawyer.” Id. at 520. The defendant’s counsel interrupted the testimony, objected, and obtained an instruction to the jury to disregard the officer’s answer. Id. The defendant also moved for a 19 mistrial, which was denied. Id. at 520-21. We held that the defendant’s “decision to remain silent in a pre-arrest encounter does not implicate the Fifth Amendment right against compulsory self-incrimination” and, thus, no mistrial was required. Id. at 521; see Dobbs v. State, 699 S.W.3d 799, 807 (Tex. App.—Dallas 2024, no pet.) (noting that, to extent error was preserved, testimony that officer was unsuccessful in obtaining investigative statement from defendant did not infringe on defendant’s Fifth Amendment rights). Similarly, here, when Detective Winstead attempted to contact appellant, appellant was not in custody or under arrest. He was in the hospital, and there is no evidence that, while there, he was detained. For example, there is no evidence that appellant was handcuffed to his bed or that a guard was posted outside his hospital room. Even if appellant’s injuries prevented him from leaving the hospital, that fact would not render him “in custody.” See Martinez v. State, 496 S.W.3d 215, 220-21 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (holding that defendant was not “in custody” while being treated at hospital, despite being incapacitated by wounds, where no restraints were applied by police and guard was not posted); Yarborough v. State, 178 S.W.3d 895, 901-02 (Tex. App.—Texarkana 2005, pet. ref’d) (same); Redmond v. State, 30 S.W.3d 692, 697 (Tex. App.—Beaumont 2000, pet. ref’d) (same). Accordingly, because appellant was not in custody at the time of Detective Winstead’s questions and was under no compulsion to answer, the Fifth Amendment 20 did not preclude Detective Winstead’s testimony that appellant would not speak with him, and the trial court did not err by denying appellant’s motion for a mistrial. We overrule appellant’s fourth issue. Jury Charge Error In his fifth and final issue, appellant contends that the trial court erred by failing to instruct the jury on the law applicable to protection of one’s property by using deadly or non-deadly force. In response, the State argues that (1) appellant did not request in the trial court an instruction on the use of deadly force to protect one’s property; (2) the evidence does not support instructing the jury on the use of non- deadly force to protect one’s property, which is the instruction appellant requested at trial; and (3) any error is harmless. A. Background During the charge conference, appellant requested that the trial court instruct the jury on the law applicable to protection of one’s property. Specifically, appellant’s counsel requested an instruction “[u]nder [section] 9.41 [of] the penal code, protection of one’s own property.” Section 9.41(a) of the Texas Penal Code justifies a defendant’s “using force against another when and to the degree the actor reasonably believes the force is immediately necessary” to protect real or personal property under specified circumstances. TEX. PENAL CODE § 9.41(a). 21  Appellant’s counsel clarified that he was not seeking an instruction under section 9.42 of the Texas Penal Code, which justifies the use of deadly force to protect property when certain conditions are met. TEX. PENAL CODE § 9.42. Appellant’s counsel and the trial court engaged in the following exchange: [APPELLANT’S COUNSEL]: The instruction will not say he has the right to use deadly force to protect his property, but it will say that he has the right to use regular force to protect his property because the State is going to argue that my client was abusing her and causing these other injuries. He has the right to do that, if she is destroying his property. And it’s not going to say he had the right to kill her because she’s tearing up his clothes. It’s not going to say that. It’s going to say he had the right to stop her in — THE COURT: To beat her up, would that be something he would have the right to do? [APPELLANT’S COUNSEL]: I believe so, as long as he’s using reasonable force. THE COURT: Could he throw a hammer at her? [APPELLANT’S COUNSEL]: I believe that would be deadly force. . . . THE COURT: The problem with this — and I’ve given you the first instruction [on self-defense], but I’m very want [sic] to give you the second instruction [on protection of property] because it starts amounting to a comment on the evidence. And that’s — I don’t want to do that. . . . So that’s all I’m giving. [APPELLANT’S COUNSEL]: So that request is denied, just to make my record? THE COURT: Yes, sir. 22  Shortly after this exchange, the trial court read the charge to the jury, and counsel for the State and appellant presented closing arguments. The jury charge did not include any instruction on the law applicable to protection of one’s property. B. Standard of Review and Applicable Law The trial court is “ultimately responsible for the accuracy of the jury charge and accompanying instructions.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). The Texas Code of Criminal Procedure requires that, in a jury trial, the trial court must “deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. art. 36.14 (emphasis added). The trial court’s duty to deliver a charge that correctly sets forth the law applicable to the case exists independently of any objection made by a criminal defendant. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). However, “the law applicable to the case” does not include “unrequested defensive issues.” Id. Accordingly, when a criminal defendant fails to timely request an instruction on a defensive issue or fails to timely object to its exclusion, “he has procedurally defaulted any such complaint.” Id. When there is a timely objection, reversal is required if the defendant suffered “some harm” from the error. Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)). 23 C. Deadly-Force Instruction We first address appellant’s contention that his request at trial for an instruction on protection of one’s property encompassed a request for instructions under both section 9.41 and section 9.42, which justify the use of non-deadly and deadly force, respectively, to protect one’s property. TEX. PENAL CODE §§ 9.41, 9.42. The State argues that appellant waived any complaint with respect to the trial court’s exclusion of a deadly-force instruction because appellant did not request such an instruction in the trial court. A defendant’s general request for an instruction on “protection of one’s property,” without more, may be sufficient to encompass a request for an instruction on the use of deadly force to protect one’s property. See Carmen v. State, 276 S.W.3d 538, 541 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (holding that defendant’s request for instruction on “self-defense,” in context, was request for instruction on self-defense by use of deadly force). However, that is not the request that appellant made. Appellant requested an instruction on “the right to use regular force to protect his property” and affirmatively disclaimed any request for an instruction on “the right to use deadly force to protect his property.” (Emphasis added.) The justification of protection of one’s own property is a defensive issue and, thus, to preserve the issue for our review, a criminal defendant must object to the trial court’s exclusion of that instruction. Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007). 24 Because appellant did not request, and affirmatively disclaimed any request for, an instruction on protection of one’s property by use of deadly force, he has procedurally defaulted any complaint and failed to preserve it for our review. Id. D. Non-Deadly-Force Instruction We next consider whether the trial court erred by refusing to instruct the jury on protection of one’s property by use of non-deadly force under section 9.41 of the Texas Penal Code, an instruction that appellant requested. Appellant claims that this issue was raised by the evidence because complainant “had other injuries besides the gunshot.” The Texas Penal Code defines “deadly force,” as used in chapter 9, as “force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” TEX. PENAL CODE § 9.01(3). In the context of self-defense, the Texas Court of Criminal Appeals has held that a defendant is not entitled to an instruction on the use of non-deadly force when there is no evidence that the force used “was not capable of causing death or serious bodily injury in the manner of its use or intended use.” Ferrel v. State, 55 S.W.3d 586, 592 (Tex. Crim. App. 2001). In Ferrel, the defendant hit the