Full Opinion (html_with_citations)

Opinion filed December 30, 2022




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-21-00174-CR
                                  __________

            WILLIAM CLIFFORD GOBLE, JR., Appellant
                                        V.
                    THE STATE OF TEXAS, Appellee


                    On Appeal from the 161st District Court
                             Ector County, Texas
                     Trial Court Cause No. B-20-0197-CR


                     MEMORANDUM OPINION
      Appellant, William Clifford Goble, Jr., was indicted for the murder of David
Young. TEX. PENAL CODE ANN. § 19.02(b)–(c) (West 2019). A jury convicted
Appellant of the charged offense and assessed his punishment at thirty-eight years’
imprisonment in the Institutional Division of the Texas Department of Criminal
Justice and a $10,000 fine. The trial court sentenced Appellant accordingly. In his
sole issue on appeal, Appellant contends that the trial court erred when it included
in its charge a general duty-to-retreat instruction that advised the jury that a person
is justified in using deadly force in self-defense “if a reasonable person in the
Defendant’s situation would not have retreated.” We affirm.
                                I. Factual Background
      The evidence presented at trial included the testimony of several witnesses as
well as video footage captured by neighborhood security cameras.
      The murder of David Young occurred during an incident between Appellant,
David Young, David’s son (Jeffrey Young), and Jeffrey’s girlfriend (Izabel
Duncan). The incident apparently arose from Jeffrey and Izabel’s use of a dirt bike
on the streets of the residential neighborhood where both Appellant and David lived.
Jeffrey and Izabel were riding a dirt bike at a nearby park, with David present.
Jeffrey and Izabel decided to race David back to his house by riding the dirt bike
through the nearby neighborhood.
      While returning to David’s house, Jeffrey and Izabel encountered Appellant,
who was pulling out of his driveway in his pickup; they rode the dirt bike onto the
sidewalk to avoid being struck by Appellant’s pickup. Shortly after Jeffrey and
Izabel arrived at David’s house, Appellant drove up, cursed at them, and flipped
them off before driving away.
      A short while later, Jeffrey and Izabel “cruised” around the neighborhood on
the dirt bike and circled around past Appellant’s house before returning to David’s
house. After that, Appellant drove by David’s house again, this time writing down
the address before driving away. Jeffrey and Izabel again returned to Appellant’s
house, this time in Jeffrey’s pickup, to “see what the issue [wa]s.” As Jeffrey exited
his pickup, which was parked in front of Appellant’s house, he saw Appellant lift




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his shirt and place his hand on a pistol that was holstered at his hip. Seeing this,
Jeffrey got back in his pickup and the couple drove back to David’s house.
      Upon arriving back at David’s house, they told David what had just occurred.
David got into Jeffrey’s pickup and the three of them drove back to Appellant’s
house. When they arrived, they saw Appellant standing in his neighbor’s carport.
Appellant initially ducked behind the neighbor’s vehicle, but then laughed as he
stepped back into view. David exited Jeffrey’s pickup and moved toward Appellant
quickly; witnesses described his pace as “hurried” or as “speed jogging.” After
David stepped onto Appellant’s lawn, Appellant drew his pistol and pointed it at
David. David stepped back onto the sidewalk, off of Appellant’s lawn. According
to witness testimony, David appeared to be removing his cell phone from his pocket
when Appellant shot him in the chest. David died from the gunshot wound.
      When police arrived at the scene, Appellant was placed into a police vehicle.
While inside the vehicle, the in-vehicle camera and audio system recorded Appellant
talking aloud to himself; he said: “F-----g dropped his s--t like a dog.” After law
enforcement had conducted their investigation, it was determined that David had a
blood alcohol level of 0.175 and that Appellant had a blood alcohol level of 0.095.
Appellant’s blood sample also tested positive for marihuana.
      Officer Carlos Chavez of the Odessa Police Department testified as an expert
on the subjects of tactical shooting, firearms, and self-defense. He testified that,
based on his observations of the security cameras that recorded the incident,
Appellant’s actions were not reasonable when he shot David. He further testified
that it was a criminal offense for a person to possess a firearm while intoxicated.
      Appellant testified that he saw the dirt bike several times during the day of the
incident and that he yelled at the riders that the bike was not street legal; he also




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claimed to have called the police. Later on, Appellant decided to determine the
address of the bike riders so that he could inform the police. According to Appellant,
he drove past David’s house twice but could not see the address. People at David’s
house yelled at him, and he flipped them off. He drove by a third time and noted the
address of the house. Appellant then returned to his house and was speaking with
his neighbor when Jeffrey pulled up in his pickup. Jeffrey asked Appellant what his
problem was, and Appellant patted his hip as a “subtle indication” that “something”
was under his shirt. Jeffrey left the scene.
      Later, Jeffrey returned in his pickup and Appellant said to his neighbor, “This
is not going to be good.” Appellant initially ducked behind the neighbor’s vehicle
because he knew the people in the pickup were looking for him. He saw David exit
the pickup and start running at him. Appellant testified that, because of David’s
actions, he was in fear for his life. He testified that when David reached his lawn,
Appellant drew his pistol. He recalled David backing up to the sidewalk when
Appellant drew the pistol, but then he took two or three steps forward again—up
Appellant’s driveway. Appellant testified that he was afraid that David would break
his “bones or neck” and he viewed David as an imminent threat. He also stated that
he felt outnumbered and that he did not believe he could avoid the threat at that
moment. According to Appellant, when he saw David pulling something from his
pocket, he feared that it was a weapon. As a result, and in reacting to the situation,
Appellant shot David.
                                     II. Analysis
      There is no dispute that Appellant shot and killed David. The only question
for the jury to determine was whether Appellant acted in self-defense. Appellant
complains that the trial court erroneously included in its charge a general duty-to-




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retreat instruction that advised the jury that a person is justified in using deadly force
in self-defense “if a reasonable person in the Defendant’s situation would not have
retreated.”
      Appellate review of alleged charge error is a two-step process. Alaniz v. State,
648 S.W.3d 657
, 660 (Tex. App.—Eastland 2022, no pet.) (citing Kirsch v. State,
357 S.W.3d 645, 649
 (Tex. Crim. App. 2012)). First, we must determine whether
charge error exists.
Id.
 (citing Cortez v. State,
469 S.W.3d 593, 598
 (Tex. Crim.
App. 2015)). Second, if error exists, as it does here, we must then conduct a harm
analysis to determine whether the error resulted in sufficient harm to require
reversal.
Id.
 at 660–61 (citing Cortez,
469 S.W.3d at 598
; Phillips v. State,
463 S.W.3d 59
, 64–65 (Tex. Crim. App. 2015); Ngo v. State,
175 S.W.3d 738
, 743–44
(Tex. Crim. App. 2005)).
      The State concedes, and we agree, that the complained-of instruction was
erroneously included in the trial court’s charge.         See PENAL § 9.32(d).       The
complained-of instruction—the general “duty to retreat” instruction—has been
abrogated. This language was statutorily repealed in 2007 and is now deemed to be
an improper comment on the weight of the evidence. Lozano v. State,
636 S.W.3d 25
, 31 (Tex. Crim. App. 2021); Morales v. State,
357 S.W.3d 1, 6
 (Tex. Crim. App.
2011) (describing the statutory amendment); see PENAL § 9.32(d) (“[I]n determining
whether an actor . . . reasonably believed that the use of deadly force was necessary,
a finder of fact may not consider whether the actor failed to retreat.”).
        Because charge error exists, we must conduct the appropriate harm analysis.
See Alaniz, 648 S.W.3d at 661 (citing Bell v. State,
635 S.W.3d 641
, 645 (Tex. Crim.
App. 2021)) (“[W]hen the charge is inaccurate, the trial court errs, and the error is
subject to a harm analysis.”); see also TEX. CODE CRIM. PROC. ANN. art. 36.19 (West




                                            5
2007). Here, Appellant’s trial counsel did not object to the submission of the
erroneous instruction in the charge; therefore, Appellant must show “egregious
harm” to obtain a reversal. Madden v. State,
242 S.W.3d 504, 513
 (Tex. Crim. App.
2007); see Almanza v. State,
686 S.W.2d 157, 171
 (Tex. Crim. App. 1985). As such,
we will reverse only if the error was so egregious and created such harm that the
defendant was deprived of a fair and impartial trial. Villareal v. State,
453 S.W.3d 429, 433
 (Tex. Crim. App. 2015); Barrios v. State,
283 S.W.3d 348, 350
 (Tex. Crim.
App. 2009).
      The Court of Criminal Appeals recently reiterated that, as in the case before
us, an Almanza egregious harm analysis is required when an erroneous, unobjected-
to, instruction is given that includes language that one has a “duty to retreat.” See
Lozano, 636 S.W.3d at 31–35 (holding that an erroneous “duty to retreat” instruction
did not cause egregious harm). To determine if the error egregiously harmed
Appellant, we examine the record as a whole, including (1) the entire jury charge,
(2) the state of the evidence, including the contested issues, (3) the arguments of
counsel, and (4) anything else in the record that may inform our analysis. Almanza,
686 S.W.2d at 171
. Egregious harm exists if the error affects the very basis of
Appellant’s case, deprives him of a valuable right, or vitally affects a defensive
theory. Villareal,
453 S.W.3d at 433
; Ngo,
175 S.W.3d at 750
. The record must
show that Appellant suffered actual harm, rather than theoretical harm, as a result of
the error; neither party bears the burden to show harm. Villareal,
453 S.W.3d at 433
;
Ngo,
175 S.W.3d at 750
.
      Appellant acknowledges that the trial court instructed the jury that Appellant
did not have a duty to retreat if (1) he had the right to be present at the location,
(2) he did not provoke the use of deadly force, and (3) he was not engaged in




                                          6
criminal activity at the time the deadly force was used. However, the trial court also
instructed the jury that, if Appellant did not meet those three criteria, he was entitled
to claim self-defense only “if a reasonable person in [his] situation would not have
retreated.”
      The State argued at trial that Appellant was not entitled to the statutory
presumption of reasonableness in his use of deadly force against David because
Appellant was intoxicated while in possession of a firearm, which was a criminal
offense “above a Class C misdemeanor.”            The “no duty to retreat” statutory
provisions that became effective in 2007 are not applicable when a defendant is
otherwise engaged in criminal activity. Nevertheless, while “the failure to retreat
may be considered in determining whether a defendant reasonably believed that his
conduct was immediately necessary,” it does not follow that the trial court must
include a general “duty to retreat” instruction in its charge. Morales,
357 S.W.3d at 5
; see also Lozano, 636 S.W.3d at 33.
      Appellant reasons: the jury was instructed that, if it found that Appellant was
not entitled to the presumption of reasonableness, he was only entitled to use deadly
force against David “if a reasonable person in [his] situation would [not] have
retreated.”   Appellant contends that he suffered egregious harm because the
instruction erroneously informed the jury that, if it found Appellant was intoxicated
at the time of the shooting, it should convict him unless no reasonable person would
have retreated. We disagree.
      Although the trial court included an improper general duty to retreat
instruction in the charge, it also twice included the correct, current statutory language
in the charge which states:
            A person who has a right to be present at the location where the
      deadly force is used, who has not provoked the person against whom


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      the deadly force is used, and who is not engaged in criminal activity at
      the time the deadly force is used, is not required to retreat before using
      deadly force to defend himself or a third person. If you find from the
      evidence that the Defendant was such a person, or if you have a
      reasonable doubt thereof, in determining whether the Defendant
      reasonably believed that the use of deadly force was necessary, you may
      not consider whether the Defendant failed to retreat.
(emphasis added). These correct statements of the law followed the erroneous
instruction, adding a slight mitigating effect to the offending language. See Finch v.
State, No. 05-15-00793-CR,
2016 WL 2586142
, at *7 (Tex. App.—Dallas May 4,
2016, pet. ref’d) (mem. op., not designated for publication).
      In considering the charge as a whole, we also observe that the self-defense
instructions in the application portion of the charge correctly stated the law. There,
the charge correctly instructed the jury on the application of the law of self-defense:
      [I]f you believe from the evidence beyond a reasonable doubt that . . .
      David Young was not using or attempting to use unlawful deadly force
      on WILLIAM CLIFFORD GOBLE, JR., and that the Defendant did not
      reasonably believe that deadly force . . . was immediately necessary to
      protect himself against the use or attempted use of unlawful deadly
      force, as viewed from his standpoint alone, then you will find against
      the defendant on this issue of self defense.
      Importantly, the charge’s application paragraph was silent as to any alleged
requirement to retreat as a condition of self-defense. Rather, the application portion
of the charge correctly required that, for Appellant to receive an acquittal based on
a self-defense theory, the jury need only find that Appellant’s use of deadly force
was immediately necessary to protect himself against the use or attempted use of
deadly force by David. Accordingly, when read as a whole and in proper context,
the trial court’s charge does not support a finding of egregious harm because of the
single, isolated inclusion of repealed statutory language regarding a general duty to



                                          8
retreat. See Medina v. State,
7 S.W.3d 633, 640
 (Tex. Crim. App. 1999) (“Where
the application paragraph correctly instructs the jury, an error in the abstract
instruction is not egregious.”); Kuhn v. State,
393 S.W.3d 519, 529
 (Tex. App.—
Austin 2013, pet. ref’d) (“Texas courts have repeatedly held that where the
application paragraph of the charge correctly instructs the jury on the law applicable
to the case, this mitigates against a finding that any error in the abstract portion of
the charge was egregious.”).
      The state of the evidence also does not weigh in favor of egregious harm.
Throughout the trial, the contested issue was whether Appellant’s use of deadly force
was reasonable. At no point did the State assert, imply, or emphasize that Appellant
had a duty to retreat. In fact, the only mention of a duty to retreat was referred to by
Appellant’s trial counsel during his closing argument. There, Appellant’s trial
counsel correctly stated that there is no duty to retreat. This statement, if it had any
effect, only further clarified for the jury that Appellant had no duty to retreat in
connection with his claim of self-defense.
      Based on this record, we conclude that Appellant did not suffer egregious
harm. The charge was relatively straightforward. The single, offending instruction
was not set apart in the charge or emphasized in any way. It was mitigated by two
subsequent statements in the same paragraph that correctly instructed the jury of the
applicable law—self-defense was correctly defined, and the instruction did not
mention a duty to retreat. With the exception of Appellant’s trial counsel correctly
clarifying during his closing argument that Appellant had no duty to retreat, the
evidence and counsel’s closing arguments never mentioned whether Appellant, in
fact, had a duty to retreat. In this case, the evidence and the arguments of counsel
focused exclusively on the reasonableness of Appellant’s use of deadly force.




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      We hold that the trial court erred when it submitted a general duty-to-retreat
instruction in its charge. However, based on this record, we conclude that the
erroneous submission of this single, isolated reference of a general duty to retreat
did not result in a level of egregious harm such that it affected the very basis of
Appellant’s case, deprived him of a valuable right, vitally affected his defensive
theories, or deprived him of a fair and impartial trial. Accordingly, we overrule
Appellant’s sole issue.
                               III. This Court’s Ruling
      We affirm the judgment of the trial court.




                                               W. STACY TROTTER
                                               JUSTICE


December 30, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.




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