Isaiah Renteria v. the State of Texas

Opinion filed May 21, 2026

In The

Eleventh Court of Appeals
__________

No. 11-24-00294-CR
__________

ISAIAH RENTERIA, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-22-0995-CR

MEMORANDUM OPINION
This appeal concerns the propriety of the provocation instruction in the trial
court’s charge. Here, a jury found Appellant, Isaiah Renteria, guilty of murder and
assessed his punishment at imprisonment for sixty years in the Institutional Division
of the Texas Department of Criminal Justice. See TEX. PENAL CODE ANN. § 12.32(a)
(West 2019), § 19.02(b) (West Supp. 2025). The trial court sentenced Appellant
accordingly.
In his sole issue on appeal, Appellant challenges the trial court’s submission
of a provocation instruction. 1 Specifically, he contends that: (1) the evidence did
not establish one of the required elements to submit this instruction; and (2) the
charge included unnecessary, confusing, or misleading instructions, which resulted
in egregious harm. We affirm.
I. Factual Background
On April 15, 2022, Appellant drove his girlfriend to a local gas station to
purchase alcoholic beverages. Surveillance video footage shows Appellant waiting
in a parked vehicle while his girlfriend went inside the store. At some point, the
victim, Shawnn McCracken, walked past Appellant’s vehicle, but he did not interact
with or otherwise acknowledge Appellant. Appellant rolled down the driver’s side
window after McCracken walked by. McCracken walked to the southeast side of
the gas station parking lot and sat near a wall at the edge of the property away from
the main entrance. Appellant then rolled up the driver’s side window. Once
Appellant’s girlfriend returned to the vehicle, Appellant drove out of the parking lot
through the north exit.
Instead of driving northbound toward his residence, Appellant turned around,
drove southbound on the wrong side of the road, returned to the gas station parking
lot through the south entrance, and drove to where McCracken was sitting.

1
Within his sole issue, Appellant’s brief raises sub-issues. When an appellant raises multiple issues
in a single point of error, the point of error is multifarious, and an appellate court may decline to address
those matters. See Mays v. State, 318 S.W.3d 368, 385–86, 390 n.82 (Tex. Crim. App. 2010). However,
we may address the issue in the interest of justice if we can determine, with reasonable certainty, the alleged
error about which a complaint is made. See Davidson v. State, 249 S.W.3d 709, 717 n.2 (Tex. App.—
Austin 2008, pet. ref’d); Marcum v. State, 983 S.W.2d 762, 767 n.1 (Tex. App.—Houston [14th Dist.] 1998,
pet. ref’d). After diligently considering and liberally construing Appellant’s briefing, we will address each
of his discernable appellate complaints. To the extent Appellant has attempted to raise issues in his brief
other than those addressed in this opinion, we conclude that those issues have been waived as inadequately
briefed, and we overrule them. See TEX. R. APP. P. 38.1(i); see also Tong v. State, 25 S.W.3d 707, 710
(Tex. Crim. App. 2000); Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995) (“From
appellant’s brief, we cannot discern his specific arguments, and we will not brief appellant’s case for him.”).

2
Appellant stopped the vehicle and opened his door toward McCracken. The
surveillance video shows McCracken “lean” toward Appellant then walk toward the
vehicle’s open door. As McCracken approached Appellant’s vehicle, he “froze” and
stepped back slightly. Approximately one minute later, Appellant shot McCracken
as he “lunged forward.” Appellant then fled the scene.
Sergeant Donaciano Rocha with the Odessa Police Department (OPD)
testified about his investigation of the shooting and his familiarity with the
“homeless” population in Ector County. Sergeant Rocha stated that McCracken was
not a person known by law enforcement to “always [be] in trouble.” Sergeant Rocha
noted that McCracken did not have any weapons in his possession at the time he was
shot, and he observed “a bag that had some food, or some personal items belonging
to [McCracken]” near McCracken’s body. Another witness, Donald Easlon, also
did not observe any weapons in McCracken’s possession as he attempted to render
aid to McCracken—approximately one minute and fifteen seconds after he heard the
gunshots.
Two other witnesses, EJ and Chon Rodriguez, observed the shooting and
testified about McCracken’s demeanor prior to the murder. EJ testified that he saw
McCracken outside of their apartment that day and recalled he had seen McCracken
“a few times [before]. Just him being loud, obnoxious, just causing trouble.”
However, on cross-examination, EJ stated that he did not remember whether he saw
McCracken that day before the shooting. Chon testified that he saw McCracken
earlier that day when he walked by, but he did not recall any disruptive behavior
exhibited by McCracken.
EJ and Chon each recorded a portion of the altercation on their cell phones.
Their cell phone videos depict the altercation approximately ten to fifteen seconds
after it began until it ended. In the videos, Appellant is seated in the driver’s seat of

3
his vehicle with the door open; McCracken is standing a few feet away with his
hands at his sides saying something about a “f-----g gun.” Appellant yells at
McCracken and says, “you ain’t got s--t, b---h,” and “b---h you looking at me . . .
acting like you hard, b---h I’ll blow your f------g head off.” Appellant then tells
McCracken, “You don’t have anything to live for.” McCracken says that
“[I have] Jesus” to live for and pointed to the sky. Appellant responds “n---a f---k
Jesus n---a.” They inaudibly argue for approximately ten seconds before McCracken
“lunges” toward the vehicle and Appellant shoots him.
After he fled, Appellant called 9-1-1 to report the shooting. In the 9-1-1
recording, Appellant claimed that the altercation began when McCracken “kept
looking at him,” so he opened the driver’s door of his vehicle and asked McCracken
“what’s wrong . . . what’s your problem[,] and why are you looking at me and talking
s--t?” Appellant stated that McCracken then began “talking s--t” to him, so
Appellant responded by “talking s--t” and telling McCracken to “step back.”
Appellant said that McCracken had already seen Appellant’s firearm at this point,
and McCracken asked Appellant, “what he was going to do [with the firearm].”
McCracken then “lunged” and “hit” Appellant, so Appellant “started shooting” and
fled.
OPD Corporal David Meisner spoke with Appellant after the shooting.
Appellant said that McCracken struck him on the left side of his face. However,
Corporal Meisner testified that he observed no signs of injury to Appellant.
According to Corporal Meisner, Appellant said that “he pulled out his firearm and
was displaying it to the guy that he shot before . . . anything ever happened to
[Appellant].” Corporal Meisner’s testimony was corroborated by OPD Detective
Kara Thompson, who interviewed Appellant during her investigation.

4
Detective Thompson testified to the statements made by Appellant during his
interview, a recording of which was admitted into evidence. When asked about the
events that had transpired, Appellant stated, “[McCracken] was just looking and
looking and put his hands up to I don’t know what, I don’t know if he wanted
money.” Appellant stated, “I opened the door to make it easier,” and “[McCracken]
just got mad I guess.” Appellant stated that he “didn’t know” if he asked
McCracken if he needed money and McCracken took offense, but McCracken
“started talking s-t” and “kept walking closer.” Appellant stated that he told
McCracken “to just back up, man, just leave [them] alone,” and that he and his
girlfriend “were going to leave.” Appellant stated that McCracken “just started
swinging and [Appellant] was in the car,” and that he did not “know what happened
because it was, it was too fast.” When asked about the gun, Appellant stated that he
pulled the gun out “to get [McCracken] away from [him],” and McCracken “didn’t
care” and was cursing at him while he told McCracken that they were going to leave.
Appellant stated that he pointed the gun at McCracken when he kept walking toward
Appellant; McCracken cursed at him, said, “f--k you, you’re not going to do s--t”
then “rushed [him] and he started swinging while [Appellant] was inside of the car.”
Sergeant Rocha and Detective Thompson each testified that Appellant’s
version of events was not consistent with what was depicted on the surveillance
videos.
A. The Charge Conference
At the charge conference, Appellant’s trial counsel argued that the terms
“provocation and provoke” should be defined in the charge so that the jury could
assess Appellant’s intent.2 In support, counsel cited to Elizondo v. State, 487 S.W.3d

2
Although Appellant does not raise this argument on appeal, we note that definitions for terms that
are not statutorily defined are not considered to be the law applicable to the case under Article 36.14; thus,

5
185, 198 (Tex. Crim. App. 2016) and Smith v. State, 965 S.W.2d 509, 512–13 (Tex.
Crim. App. 1998). Appellant’s trial counsel also requested that two modifications
to the proposed instructions be made, namely the inclusion of the following phrases:
(1) “did not reasonably intend to provoke the person against whom the force was
used” in lieu of “did not provoke the person against whom the force was used” in the
presumption of reasonableness instruction; and (2) “could have reasonably intended
to provoke the other’s use, or attempted use, of unlawful force” in lieu of “provoked
the other’s use or attempted use of unlawful force” in the standalone provocation
instruction as a limitation on Appellant’s right of self-defense. No other objections
to the form or content of the proposed charge were made. The trial court denied
Appellant’s requested changes to the instructions.
II. Standard of Review
The purpose of the trial court’s charge “is to inform the jury of the applicable
law and guide them in its application to the case.” Delgado v. State, 235 S.W.3d
244, 249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex.
Crim. App. 1996)). Charge error stems from the denial of a defendant’s right to have
the trial court provide the jury with instructions that correctly set forth the “law
applicable to the case.” Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021)
(quoting CRIM. PROC. art. 36.14). Because the trial court is obligated to correctly
instruct the jury on the law applicable to the case, it is ultimately responsible for the
accuracy of its charge and the accompanying instructions. Mendez v. State, 545
S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing Delgado, 235 S.W.3d at 249).
Therefore, if the charge is erroneous, the error is subject to the appropriate harm
analysis. See Bell, 635 S.W.3d at 645.

it is generally impermissible for the trial court to define such terms in its instructions. Green v. State, 476
S.W.3d 440, 445 (Tex. Crim. App. 2015); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).
6
Reviewing complaints of charge error is a two-step process. Campbell v.
State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022) (citing Ngo v. State, 175 S.W.3d
738, 743 (Tex. Crim. App. 2005)). First, we must determine whether error exists.
Id. If there is no error, our analysis ends. Id.; Loza v. State, 659 S.W.3d 491, 497
(Tex. App.—Eastland 2023, no pet.). However, if error does exist, we must decide
whether the appellant was harmed and if the harm is sufficient to require reversal.
Cyr v. State, 665 S.W.3d 551, 556 (Tex. Crim. App. 2022) (citing Wooten v. State,
400 S.W.3d 601, 606 (Tex. Crim. App. 2013)); Ybarra v. State, 621 S.W.3d 371,
384 (Tex. App.—Eastland 2021, pet. ref’d). The applicable standard of review to
be utilized for charge error depends on whether the claimed error was preserved.
Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020).
If error exists and it is not preserved for our review, such as when the
defendant or his trial counsel fails to assert proper objections to the trial court’s
charge or fails to request a proper instruction, we review the complained-of charge
error under the Almanza “egregious harm” standard. 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). Under this standard, we will reverse only if the error was so
egregious and created such harm that the defendant was deprived of a valuable right
and a fair and impartial trial. Villarreal 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);
Almanza, 686 S.W.2d at 171. Further, if the trial court submits a charge based on a
defensive issue, regardless of whether it does sua sponte or upon a party’s request,
but it fails to do so correctly, this is error that is also subject to review under the
“egregious harm” standard. See Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim.
App. 2013).

7
The abstract paragraphs in the charge “serve as a glossary to help the jury
understand the meaning of concepts and terms used in the application paragraphs of
the charge,” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012), while
the application paragraphs apply the “pertinent penal law, abstract definitions, and
general legal principles to the particular facts and the indictment allegations,”
Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). In the context of an
abstract instruction, reversible error generally only occurs when the instruction is an
incorrect or misleading statement of a law that “the jury must understand in order to
implement the commands of the application paragraph.” Crenshaw, 378 S.W.3d at
466.
III. Analysis
Appellant asserts that the trial court erred by including a provocation
instruction in its charge when the evidence did not establish the third Smith element.3
See Smith, 965 S.W.2d at 512–13. Appellant asserts that his complaint on
appeal was preserved by his trial counsel’s request to change the phrasing in the
trial court’s provocation instruction and presumption of reasonableness instruction.
Alternatively, Appellant argues that, if his provocation-instruction complaint was
not preserved, as the State contends, the trial court’s charge caused him egregious
harm because it contained unnecessary instructions, was confusing or difficult to
understand, and was “riddled with errors.”

3
Appellant raises multiple sub-issues within his sole issue contending that: (1) he preserved his
charge error complaint when his trial counsel objected to the charge’s inclusion of “provocation” at the
charge conference; (2) the evidence did not support one of the three Smith elements which are required to
support a provocation instruction; and (3) Appellant suffered “some harm” as a result of the trial court’s
erroneous inclusion of the provocation instruction.

8
A. Submission of a Provocation Instruction
Appellant argues that there is insufficient evidence to establish his intent to
provoke McCracken as a pretext for shooting and killing him; therefore, he contends
the trial court erred when it submitted a provocation instruction under
Section 9.31(b)(4). See PENAL § 9.31(b)(4).
In asserting self-defense, the use of force is justified “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). In the
same manner, the use of deadly force against another is justified under the above
circumstances “if the actor would be justified in using force against the other under
Section 9.31; and when and to the degree the actor reasonably believes the deadly
force is immediately necessary to protect the actor against the other’s use or
attempted use of unlawful deadly force.” Id. § 9.32(a). “‘Deadly force’ means 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.” Id. § 9.01(3). A
“reasonable belief” is a belief that would be held by an ordinary and prudent person
in the same circumstances as the actor. Id. § 1.07(a)(42). Under certain
circumstances, an actor’s belief that deadly force was immediately necessary is
presumed to be reasonable. Id. § 9.32(b).
The doctrine of provocation or “provoking the difficulty” provides that, if the
defendant provoked the victim into attacking the defendant so that the defendant
would have a pretext to kill or injure the victim, the defendant forfeits his right of
self-defense. Elizondo, 487 S.W.3d at 198; Smith, 965 S.W.2d at 512–13; see PENAL
§§ 9.31(b)(4), 9.32(a)(1). The trial court must instruct the jury on provocation when
sufficient evidence supports a finding of the following three elements: (1) the
defendant did some act or used some words which provoked the attack on him;

9
(2) such act or words were reasonably calculated to provoke the attack; and (3) the
act was done or the words were used for the purpose and with the intent that the
defendant would have a pretext for inflicting harm upon the attacker. Smith, 965
S.W.2d at 513; see also Engel v. State, 630 S.W.3d 192, 200 (Tex. App.—Eastland
2020, no pet.).
A provocation instruction under Section 9.31(b)(4) acts as a “full restriction”
or “total restraint” on the defendant’s right to self-defense, whereas the term
“provoke” as used in Section 9.32(b)(2) does not. See Smith, 965 S.W.2d at 512–13
(“[I]f the defendant employs provocation with intent to assault the victim, and
provokes an attack and makes an assault, then self-defense is lost as to the assault.”);
Powell v. State, No. 04-24-00302-CR, 2025 WL 2793221, at *8–9 (Tex. App.—
San Antonio Oct. 1, 2025, pet. ref’d) (mem. op., not designated for publication)
(holding that the term “‘[p]rovoke’ under Section 9.32(b)(2) could potentially limit
the presumption of reasonableness, but a jury could determine the presumption of
reasonableness did not apply and still find that a defendant had a reasonable belief
to act in self-defense.”).
1. Preservation of Error
Appellant asserts that he preserved this issue for appellate review because:
(1) his insistence on the “intent” language in the provocation instruction was
effectively a proper and timely objection to the submission of this instruction; and
(2) “[w]hile Appellant’s request didn’t explicitly challenge the provocation
instruction,” his objection was sufficiently specific to make the trial court aware of
his complaint that the evidence did not support a finding of the third Smith element
beyond a reasonable doubt, and his complaint is apparent from the context of his
objection. See Gonzalez v. State, 616 S.W.3d 585, 591 (Tex. Crim. App. 2020)
(citing TEX. R. APP. P. 33.1(a)). The State responds that Appellant failed to preserve

10
this issue for appellate review because his objection to the inclusion of the
provocation instruction was not based on an insufficient evidence complaint;
instead, Appellant objected only to the absence of the term “intended” in the
instruction. We agree with the State.
To preserve a charge error complaint, there must either be a timely objection
or request made to the trial court. Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim.
App. 1996). Because no “talismanic words” are needed to preserve error, the trial
court must only be able to understand from the context what complaint is being
made; therefore, a complaining party must present a specific, timely objection or
motion to the trial court which states the specific grounds for the desired ruling.
TEX. R. APP. P. 33.1(a)(1)(A); Montelongo v. State, 623 S.W.3d 819, 822 (Tex.
Crim. App. 2021); Burg v. State, 592 S.W.3d 444, 448–49 (Tex. Crim. App. 2020);
Clark v. State, 365 S.W.3d 333, 337 (Tex. Crim. App. 2012); see TEX. R. EVID.
103(a). Additionally, to preserve charge error, a “defendant may, by a special
requested instruction, call the trial court’s attention to error in the charge, as well as
omissions therefrom, and no other exception or objection to the court’s charge shall
be necessary to preserve any error reflected by any special requested instruction
which the trial court refuses.” CRIM. PROC. art. 36.15 (West 2006) (emphasis
added).
It is also well-settled that the complaint and arguments raised on appeal
must comport with and correspond to the objections made, if any, to the trial court
or they are waived. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.
1995) (citing Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991));
Dominguez v. State, 474 S.W.3d 688, 699 (Tex. App.—Eastland 2013, no pet.); see
TEX. R. APP. P. 33.1(a)(1)(A). As such, an objection asserted at trial on one ground
cannot support a different contention on appeal. Rezac v. State, 782 S.W.2d 869,

11
870 (Tex. Crim. App. 1990); Edwards v. State, 97 S.W.3d 279, 287 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d).
Here, Appellant did not object to the submission of the provocation instruction
itself. Rather, Appellant only requested to modify the instruction’s language and for
the trial court to define the terms “provocation” and “provoke” in its instructions.
However, that specific argument is not advanced in his appellate briefing. Instead,
Appellant limits his argument on appeal to contending that: (1) the trial court’s
submission of the provocation instruction was erroneous; and (2) he suffered
“egregious harm” from “disorganized” wording and the submission of the “no duty
to retreat,” and “real and apparent danger,” instructions. As such, Appellant’s global
complaint on appeal that it was error for the trial court to submit this instruction does
not comport with the argument or objection that he made before the trial court,
therefore, his complaint was not preserved. See TEX. R. APP. P. 33.1(a)(1)(A); see
also Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016); Clark, 365
S.W.3d at 339; Arevalo v. State, 675 S.W.3d 833, 845 (Tex. App.—Eastland 2023,
no pet.).
Despite the lack of preservation, we must address the entirety of any alleged
charge error raised by Appellant because “all alleged jury-charge error must be
considered on appellate review regardless of preservation in the trial court.”
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); see also Loza, 659
S.W.3d at 497.
2. The Sufficiency of the Provocation Evidence
Appellant argues that the trial court erred when it instructed the jury on
provocation because the evidence is insufficient to establish his intent to provoke
McCracken as a pretext for killing him. Appellant and the State each acknowledge
that the evidence satisfies the first two Smith elements. See Smith, 965 S.W.2d at

12
513. Therefore, we only address whether the third Smith element is supported by
the evidence. 4 See id.; see also Engel, 630 S.W.3d at 200; Pham v. State, 595 S.W.3d
769, 779 (Tex. App.—Houston [14th Dist.] 2019), aff’d, 639 S.W.3d 708 (Tex. Crim
App. 2022).
Generally, “[a]n instruction on provocation should only be given when there
is evidence from which a rational jury could find every element of provocation
beyond a reasonable doubt.” Elizondo, 487 S.W.3d at 197 (emphasis omitted)
(quoting Smith, 965 S.W.2d at 514); Engel, 630 S.W.3d at 200. The trial court errs
if it submits a “provoking-the-difficulty” instruction that is not supported by the
evidence because doing so constitutes an unwarranted limitation on the defendant’s
right of self-defense. Elizondo, 487 S.W.3d at 197. As such, we must view the
evidence in the light most favorable to giving the instruction and determine whether
there is sufficient evidence from which a rational jury could have inferred and found
each element of provocation beyond a reasonable doubt. Smith, 965 S.W.2d at 514.
To satisfy the third Smith element, there must be “some evidence from which
a rational jury could find beyond a reasonable doubt that the act was done, or the
words were used [by the defendant], for the purpose and with the intent that the
defendant would have a pretext for killing the victim.” Elizondo, 487 S.W.3d at 200.
A defendant’s action, even if it is wrongful and does indeed provoke an attack, will
not subject the defendant to forfeiting his right to assert self-defense if the defendant
did not intend for his conduct to have such an effect or be part of a scheme to harm
the victim. Id. In this instance, under the third Smith element, the trial court’s
submission of the provocation instruction would be justified only if the evidence

4
Nevertheless, we conclude that there is some evidence from which the jury could have rationally
inferred and found beyond a reasonable doubt that Appellant’s acts or words—whether taken alone or
considered in conjunction with the relationship of the parties and other surrounding circumstances—
actually caused the attack on him, were reasonably capable of causing the attack, or had a reasonable
tendency to cause the attack. See Elizondo, 487 S.W.3d at 199.
13
showed that a rational jury could have reasonably found that Appellant possessed an
intent to provoke McCracken so that he would have a pretext to harm McCracken
under the guise of self-defense. See id. at 201.
We note that a provocation instruction is rarely found to be improper based
on insufficient evidence supporting the third Smith element, unless the altercation
involved strangers or circumstances in which it was not conceivable that the
defendant orchestrated events for the purpose of gaining a pretext to harm the victim.
See Smith, 965 S.W.2d at 518–19 (describing cases that illustrate the “exceptional
and extraordinary situations” where a provocation instruction is unwarranted, noting
that the current case fell “short of such a rarity”); Engel, 630 S.W.3d at 200.
Intent is a question of fact that is to be determined from all the circumstances,
including a defendant’s words, acts, and conduct that occur before, during, or after
the provocation. Elizondo, 487 S.W.3d at 200. Acts of provocation alone can carry
an inference of intent, and the defendant’s actions during or after the provocation
can illuminate his intent. Engel, 630 S.W.3d at 201. Further, a jury can rely only
on circumstantial evidence to find provocative acts or words, but the evidence must
create more than mere suspicion or speculation. Id.
According to Appellant, the third Smith element cannot be established because
it is “impossible to fathom that [he] arranged this set of events to make McCracken
attack him so [that] he could kill him,” and because McCracken was a stranger to
him. We disagree with Appellant’s assessment of the evidence.
The surveillance videos captured the entire altercation between Appellant and
McCracken and show that McCracken did not interact with Appellant prior to
Appellant approaching him. The videos also show that Appellant’s conduct indicate
an intent to confront McCracken when he (1) turned his vehicle around after he
initially exited the gas station parking lot, (2) drove on the wrong side of the road,

14
(3) returned to the gas station parking lot, (4) drove to the side of the gas station
where McCracken was sitting, and (5) opened his vehicle’s door toward McCracken.
Further, it is apparent that, even though the windows to Appellant’s vehicle were
functional, he instead chose to open the driver’s door toward McCracken during their
initial encounter rather than rolling down the windows as he did earlier.
Sergeant Rocha and Detective Thompson testified that Appellant’s version of
events was inconsistent with the video evidence that they recovered in their
investigation of the shooting. Sergeant Rocha also noted that McCracken was
unarmed during the altercation and that he did not have a history of causing “trouble”
in the community.
Chon testified that McCracken looked at him and EJ when he walked by prior
to the altercation, but he did not state that McCracken was acting aggressively. And
by Appellant’s own account, he brandished his firearm and “displayed” it to
McCracken “before anything ever happened,” and he believed that McCracken was
“aware” that he had the firearm during their altercation. McCracken’s awareness of
Appellant’s firearm is further shown by the surveillance video—which shows that
McCracken “froze” and took a step back from Appellant’s vehicle—and from
McCracken’s statements that were recorded by EJ and Chon where he mentioned a
“gun.”
EJ’s and Chon’s cell phone video recordings also show that Appellant yelled
multiple offensive phrases and obscenities at McCracken—including: “b---h you
looking at me . . . acting like you hard, b---h I’ll blow your f-----g head off.” Thus,
the videos of Appellant’s actions prior to the altercation, along with Appellant’s own
admissions, support the reasonable inference that he intended to provoke McCracken
by creating a circumstance where McCracken would lunge at or into Appellant’s
vehicle as a pretext for shooting him. While there is arguably some evidence

15
that would have permitted a rational jury to conclude that Appellant
did not provoke McCracken with the intent to harm him—such as his phone call to
9-1-1 to report the shooting, or because they were strangers prior to the altercation—
the jury was nonetheless entitled to weigh this conflicting evidence with the other
evidence admitted at trial in considering whether Appellant intended to provoke the
confrontation with McCracken. See Benaffane v. State, No. 01-15-00840-CR, 2017
WL 2117538, at *5 (Tex. App.—Houston [1st Dist.] May 16, 2017, pet. ref’d) (mem.
op., not designated for publication).
We conclude that a reasonable interpretation of the evidence shows that
Appellant sought out McCracken with the intention of provoking McCracken into
attacking Appellant while he was seated in his vehicle, so that Appellant would have
a pretext for inflicting harm upon McCracken. From this evidence, when viewed in
the light most favorable to giving the instruction, we conclude that a rational jury
could have logically inferred and found the third Smith provocation element beyond
a reasonable doubt. See Elizondo, 487 S.W.3d at 200–02; Smith, 965 S.W.2d at 514;
see also Engel, 630 S.W.3d at 200–01 (upholding the trial court’s submission of a
provocation instruction in its charge where the defendant said that he was going to
“kick [the victim’s] a-s,” the defendant showed the victim that he was loading a
weapon, and lunged toward victim); Kelley v. State, 968 S.W.2d 395, 401 (Tex.
App.—Tyler 1998, no pet.) (holding that evidence that a defendant approached the
victim’s yard, brandished a gun, confronted the victim, and refused to leave
supported a rational inference of intent to support a provocation instruction
submission). Here, the provocation instruction submitted by the trial court was in
proper form, accurately tracked the applicable statutory language, and is supported
by the evidence. Therefore, the trial court did not err when it submitted this
instruction in its charge.

16
3. Asserted Confusion
In his harm analysis, Appellant argues that he was harmed because the charge
(1) was difficult to understand, (2) included unnecessary instructions for “no duty to
retreat” and “real and apparent danger,” and (3) failed to include a “simple” or
“clear” instruction on the State’s burden of proof. Because we have concluded that
instructing the jury on provocation was not error, we need not address whether
Appellant was harmed by the instruction. See Campbell, 664 S.W.3d at 245 (citing
Ngo, 175 S.W.3d at 743). We will, however, dispense with the remaining charge
complaints contained within Appellant’s harm argument. Before we do, we note at
the outset that Appellant did not request a self-defense instruction, which the trial
court should, as it did here, submit whenever a statutory or justification defense is
raised by the evidence. Vega, 394 S.W.3d at 519; Walters v. State, 247 S.W.3d 204,
208–09 (Tex. Crim. App. 2007).
i. The Provocation Instruction
Appellant contends that he was harmed by the inclusion of the provocation
instruction in the charge because the charge “contains no headings,” did not
distinguish the provocation instruction from other self-defense instructions, and
“bounces” between multiple Penal Code provisions in “no discernible order.” In
support, Appellant cites to the Texas Criminal Pattern Jury Charges (PJC). See
Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury
Charges: Justification Defenses PJC 9.23 (2024); see also Cochran v. State, 692
S.W.3d 891, 896 (Tex. App.—Dallas 2024, no pet.) (“Pattern jury charges are
advisory [only] and not binding on the courts.”).
“[I]t is the function of the charge to lead and to prevent confusion.” Reeves v.
State, 420 S.W.3d 812, 818 (Tex. Crim. App. 2013) (quoting Williams v. State, 547
S.W.2d 18, 20 (Tex. Crim. App. 1977)). But it is also the trial court’s paramount

17
duty to “maintain neutrality in providing such information and guidance” in its
charge, above any subjective desire for including extratextual clarification. Poor v.
State, 715 S.W.3d 15, 33 (Tex. App.—Eastland 2024, pet. ref’d) (quoting Beltran
De La Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019)). Article 36.14
prohibits the charge from “expressing any opinion as to the weight of the evidence,”
and is designed to accomplish this neutrality. See CRIM. PROC. art. 36.14.
Generally, a charge that tracks the controlling statutory language is not
erroneous. See Casey v. State, 215 S.W.3d 870, 887 (Tex. Crim. App. 2007). The
relevant part of the charge of which Appellant now complains is stated below:
SELF DEFENSE
....

You are further instructed as part of the law in this case and as a
qualification on the law of self-defense, the use of force by a defendant
against another is not justified if the defendant provoked the other’s use
or attempted use of unlawful force, unless the defendant abandoned the
encounter, or clearly communicated to the other his intent to do so,
reasonably believing he cannot safely abandon the encounter, and the
other nevertheless continues or attempts to use unlawful force against
the defendant.
The provocation instruction includes language derived from Section 9.31(b)(4). As
set forth above, the trial court’s provocation instruction was a correct recitation of
the applicable law and was properly submitted. See Casey, 215 S.W.3d at 886–87
(holding that the trial court’s charge was not erroneous where it set forth the law
applicable to the case and accurately tracked the statute’s required language);
Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994); see also Powell, 2025
WL 2793221, at *8–9; Gonzalez v. State, No. 13-23-00025-CR, 2024 WL 2349321,
at *11 (Tex. App.—Corpus Christi–Edinburg May 23, 2024, no pet.) (mem. op., not

18
designated for publication) (concluding that the trial court did not err by discussing
provocation as an element of self-defense).
Because the charge accurately set forth the law applicable to this case, we
overrule Appellant’s sub-issue as to the organization of the charge. See Reeves,
420 S.W.3d at 817 n.29, 819.
ii. The “No Duty to Retreat” Instruction
Next, in Appellant’s harm analysis, Appellant complains that (1) the “no duty
to retreat” provisions in Section 9.32 does not apply if the defendant provoked the
person against whom force or deadly force was used, and (2) “[t]he inclusion of both
the provocation statute and the ‘no duty to retreat’ language likely confused the
jury.” See Morales v. State, 357 S.W.3d 1, 6 (Tex. Crim. App. 2011); 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.”).
We conclude that Appellant’s argument fails for two reasons. First, the trial
court’s “no duty to retreat” instruction was the law applicable to the case because
the evidence supported the submission of a provocation instruction. Second, this
instruction accurately tracked the applicable statutory language in Sections 9.31 and
9.32. Here, the submitted “no duty to retreat” instruction focused on the failure to
retreat rather than a general duty to retreat. See Morales, 357 S.W.3d at 6
(describing the 2007 statutory amendment which abrogated the general “duty to
retreat” instruction, and holding that “the inclusion of a ‘general duty to retreat’”
instruction is erroneous); see also Lozano v. State, 636 S.W.3d 25, 31 (Tex. Crim.
App. 2021); Goble v. State, No. 11-21-00174-CR, 2022 WL 17997042, at *3 (Tex.
App.—Eastland Dec. 30, 2022, no pet.) (mem. op., not designated for publication)
([W]hile “the failure to retreat may be considered in determining whether a

19
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. (quoting Morales, 357 S.W.3d at 5)).
The Court of Criminal Appeals explained in Morales that the “no duty to
retreat” provisions do not apply in circumstances where the defendant provoked the
person against whom force or deadly force was used or if the defendant was engaged
in criminal activity at the time. Morales, 357 S.W.3d at 5. “When these provisions
do not apply, the failure to retreat may be considered in determining whether a
defendant reasonably believed that his conduct was immediately necessary to defend
himself or a third person.” Id. (emphasis added). The court further noted that while
no language in the current self-defense statutes call for determining whether a duty
to retreat exists generally, “[t]here are only provisions that say, under specified
circumstances, that a person is not required to retreat.” Id. at 6 (emphasis added).
When the issue of self-defense is submitted to the jury in a case that involves
deadly force, the jury must determine whether the defendant reasonably believed
that deadly force was immediately necessary to protect himself from the other’s use
or attempted use of unlawful deadly force. PENAL § 9.32(a), (b). Thus, in this case,
the question before the jury was the reasonableness of Appellant’s belief that deadly
force was immediately necessary in this circumstance. Section 9.32(d) provides that,
in the jury’s assessment of the reasonableness of a defendant’s belief, the jury may
not consider whether the defendant failed to retreat. Id. § 9.32(d). As such,
Section 9.32(c) addresses the duty to retreat referenced in Section 9.32(d), and it
focuses on the reasonableness of the defendant’s belief. See Dearing v. State,
No. 11-12-00105-CR, 2014 WL 2810121, at *3 (Tex. App.—Eastland June 12,
2014, no pet.) (mem. op., not designated for publication). The trial court should
therefore instruct the jury that, when assessing the reasonableness of a defendant’s

20
belief that deadly force was immediately necessary, it may not consider whether the
defendant failed to retreat if he had a right to be present at the location where the
conduct occurred, did not provoke the person against whom the deadly force was
used, and was not engaged in criminal activity at the time. PENAL § 9.32(c), (d); see
Morales, 357 S.W.3d at 5.
The entirety of the submitted “no duty to retreat” instruction, which followed
the provocation instruction and the discussion of the differences while armed
instruction, see PENAL § 9.31(b)(4), (b)(5)(A), is stated below:
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 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
[Appellant] was such a person, or if you have a reasonable doubt
thereof, in determining whether [Appellant] reasonably believed that
the use of deadly force was necessary, you may not consider whether
the Defendant failed to retreat.
(Emphasis added). We have previously addressed this language and concluded, as
we do now, that this language is the correct statement of the law because it recites
that a defendant is not required to retreat before using deadly force to defend
himself. See Goble, 2022 WL 17997042, at *4 (holding that language stating that a
defendant “is not required to retreat before using deadly force to defend himself or
a third person” or that the jury “may not consider whether the Defendant failed to
retreat” are correct statements of the law); Dumas v. State, No. 02-19-00071-CR,
2020 WL 3730790, at *8 (Tex. App.—Fort Worth July 2, 2020, pet. ref’d) (mem.
op., not designated for publication) (collecting cases holding that the inclusion of the
“no duty to retreat” instruction in the abstract portion of the charge is not error).
As such, the trial court’s charge did not contain a general duty to retreat
instruction. Thus, it was not error to submit the above instruction because it

21
accurately stated the law applicable to the case and allowed the jury, as the
factfinder, to assess (1) whether Appellant provoked McCracken, (2) the
reasonableness of Appellant’s belief that the use of deadly force was necessary, and
(3) the applicability of the presumption of reasonableness based on the evidence
adduced at trial.
iii. Real and Apparent Danger Instruction
Appellant next complains in his harm analysis that the trial court’s instruction
on “real and apparent danger” was “unnecessary and confusing” because the charge
also defines “reasonable belief.” Appellant cites to Walters and Valentine to assert
that the “real and apparent danger” instruction has been held “to be unnecessary
since 1979,” and again cites to the PJC in support of his argument. See Walters, 247
S.W.3d at 212 n.37 (citing Valentine v. State, 587 S.W.2d 399, 401 (Tex. Crim. App.
[Panel Op.] 1979)); Comm. on Pattern Jury Charges, State Bar of Tex., Texas
Criminal Pattern Jury Charges: Justification Defenses PJC 9.10 (2024).
To this point, the State contends that Appellant’s argument is without merit
because (1) he “provides no argument or authority explaining how the inclusion of
this instruction was actually harmful to him,” and (2) the inclusion of this language
was beneficial to Appellant’s argument that he was justified in using deadly force.
See Druery v. State, 225 S.W.3d 491, 497–98 (Tex. Crim. App. 2007) (holding that
an instruction regarding accomplice witnesses as a matter of fact was superfluous
and could only benefit the defendant because it allowed the jury to consider
additional corroborating evidence that would otherwise not be required). Indeed,
most cases on this issue concern a trial court’s refusal to instruct the jury on real and
apparent danger based on defense counsel’s request. See, e.g., Bundy v. State, 280
S.W.3d 425, 429–30 (Tex. App.—Fort Worth 2009, pet. ref’d); Lowe v. State, 211
S.W.3d 821, 825 (Tex. App.—Texarkana 2006, pet. ref’d); Medina v. State, No. 05-

22
23-00285-CR, 2025 WL 1666768, at *2 n.2, *3 (Tex. App.—Dallas June 12, 2025,
pet. ref’d) (mem. op., not designated for publication) (collecting cases); Cleary v.
State, No. 05-11-00040-CR, 2012 WL 987762, at *2–3 (Tex. App.—Dallas Mar. 26,
2012, pet. ref’d) (not designated for publication) (same).
In Walters, the court considered whether the defendant was entitled to a non-
statutory instruction that informed the jury it could consider “prior verbal threats” in
deciding the issue of self-defense, not an instruction on real and apparent danger.
Beltran De La Torre, 583 S.W.3d at 617; Walters, 247 S.W.3d at 212–13. The court
specifically stated that the propriety of the real and apparent danger instruction was
not before it. Walters, 247 S.W.3d at 212 n.37.
In Valentine, the Court of Criminal Appeals held that “an additional charge
on [real and] apparent danger was not required, when, as part of its charge on the
law of self-defense, the [trial] court instructed the jury on the statutory definition of
‘reasonable belief.’” Walters, 247 S.W.3d at 212 n.37 (citing Valentine, 587 S.W.2d
at 401). In that case, the court held that “the concept of [real and] apparent danger”
was properly submitted to the jury where the charge instructed that the defendant’s
conduct would be justified if he reasonably believed that the deceased was using or
attempting to use unlawful deadly force against the defendant at the time of the
shooting. Valentine, 587 S.W.2d at 401. Moreover, the court held that because the
trial court properly defined the term “reasonable belief” as “a belief that would be
held by an ordinary and prudent person in the same circumstances as the defendant,”
this effectively instructed the jury on the concept of “a reasonable apprehension of
danger, whether it be actual or apparent.” Id. Thus, a separate instruction for real
and apparent danger is not required when the charge adequately defines reasonable
belief and explains when a reasonable belief justifies the use of force. Id. In other
words, Valentine stands for the proposition that a separate real and apparent danger

23
instruction is not required absent the failure to define reasonable belief in the charge,
not for the proposition that it is error for a trial court to include such an instruction.
Valentine, 587 S.W.2d at 401.
The final two paragraphs of the charge contain the following language
regarding “real and apparent danger”:
When a person is attacked with unlawful deadly force, or he
reasonably believes he is under attack or attempted attack with unlawful
deadly force by one or more persons, and there is created in the mind
of such person a reasonable expectation or fear of death or serious
bodily injury to himself at the hands of such attacker or attackers, then
the law excuses or justifies such person in resorting to deadly force by
any means at his command to the degree that he reasonably believes
immediately necessary, viewed from his standpoint at the time, to
protect himself from such attack or attempted attack. It is not necessary
that there be an actual attack or attempted attack, as a person has a right
to defend his life and person from apparent danger as fully and to the
same extent as he would had the danger been real, provided that he
acted upon a reasonable apprehension of danger, as it appeared to him
from his standpoint at the time, and that he reasonably believed such
deadly force was immediately necessary to protect himself against the
other person’s use or attempted use of unlawful deadly force.
In determining the existence of real or apparent danger, you
should consider all the facts and circumstances in the case in evidence
before you, together with all relevant facts and circumstances
surrounding the use of force or deadly force, if any; the previous
relationship existing between [Appellant] and [McCracken]; together
with all relevant facts and circumstances going to show the condition
of the mind of [Appellant] at the time of the occurrence in question,
including any and all threats previously communicated to [Appellant]
from the alleged injured party. In considering such circumstances, you
should place yourselves in [Appellant’s] position at that time and view
them from his standpoint alone.
The trial court also defined “[r]easonable belief” as “a belief that would be held by
an ordinary and prudent person in the same circumstances as the defendant,” which
tracks the term’s statutory definition. PENAL § 1.07(a)(42). As set out above, the
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trial court accurately instructed the jury that Appellant would be justified in using
deadly force against McCracken when and to the degree he reasonably believed that
deadly force was immediately necessary to protect himself against McCracken’s use
or attempted use of unlawful deadly force. See Strout v. State, No. 14-23-00068-
CR, 2024 WL 1404627, at *3–4 (Tex. App.—Houston [14th Dist.] Apr. 2, 2024, pet.
ref’d) (mem. op., not designated for publication) (holding that a charge—which
included substantively identical language to the charge that we have reviewed in this
case—correctly informed the jury of the law of self-defense generally, including the
use of deadly force in self-defense) (citing Villareal, 453 S.W.3d at 435).
Furthermore, the charge asked the jury to decide whether Appellant was entitled to
a presumption of reasonableness as to his asserted belief that his use of deadly force
was immediately necessary. PENAL § 9.32(b); Strout, 2024 WL 1404627, at *4.
In this case, the instructions given accurately tracked the statutory standards
and definitions that pertain to self-defense, deadly force, and reasonable belief,
allowed the jury to consider all the circumstances in determining the reasonableness
of Appellant’s belief that his use of deadly force was immediately necessary, and
thus preserved his right to assert self-defense. See Bundy, 280 S.W.3d at 430 (citing
Valentine, 587 S.W.2d at 401). Therefore, the trial court did not err when it
submitted this instruction.
iv. The State’s Burden
Finally, in his harm analysis, Appellant challenges the trial court’s instruction
on the burden of proof as it relates to the presumption of reasonableness instruction.
Appellant also asserts in one sentence that the charge does not provide “the simple,
clear instruction on the State’s burden of proof” on self-defense. Appellant cites to
the PJC for both assertions. Comm. on Pattern Jury Charges, State Bar of Tex.,
Texas Criminal Pattern Jury Charges: Justification Defenses PJC 9.10 (2024).

25
Here, the charge discusses the presumption of reasonableness and the State’s burden
of proof on that issue. In fact, Appellant concedes that the trial court’s recitation of
the law on the presumption was correct, but he nonetheless complains that the
submitted paragraph was erroneous because it was “wordy,” used the word
presumption eight times, and failed to instruct the jury that the State was required to
prove that self-defense did not apply, even if the State proved that the presumption
of reasonableness did not apply.
Generally, if the defendant produces some evidence to support his claim of
self-defense, the State has “the burden of persuasion to disprove the raised defense.”
Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); see also Saxton v.
State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991) (contrasting affirmative
defenses and explaining how burdens shift for self-defense). The charge recites
the following regarding the State’s burden of proof, which is found immediately
after the presumption of reasonableness instruction, but before the provocation
instruction:
This presumption applies unless the State proves beyond a
reasonable doubt that the facts giving rise to the presumption do not
exist. If the State fails to prove beyond a reasonable doubt that the facts
giving rise to the presumption do not exist, you must find that the
presumption exists. Even though you may find that the presumption
does not exist, the State must prove beyond a reasonable doubt each of
the elements of the offense charged.
(Emphasis added). An application sentence immediately followed, which stated:
If you have a reasonable doubt as to whether the presumption
exists, the presumption applies and you must consider the presumption
exists.
(Emphasis added). While the language in the application sentence is a correct
recitation of the applicable law, a word—that—appears to be omitted. However,
this inconsequential oversight does not minimize the true meaning of this sentence.

26
We conclude that the above instruction accurately recited that it was the
State’s burden to prove beyond a reasonable doubt (1) that the facts giving rise to
the presumption do not exist, and (2) all elements of the charged offense. Further,
the charge instructed the jury, as it should, that “[u]nless you so find beyond a
reasonable doubt, or if you have a reasonable doubt thereof, or you further find from
the evidence that the defendant acted in self defense as defined above you will find
the defendant not guilty of MURDER.” As with its other instructions, the trial court
accurately recited the law applicable to the case.
Accordingly, we overrule Appellant’s sole issue on appeal.
IV. This Court’s Ruling
As we have discussed above, the trial court did not err in its charge
submissions, as Appellant suggests. Thus, because there is no error, we need not
engage in a harm analysis. See Campbell, 664 S.W.3d at 245 (citing Ngo, 175
S.W.3d at 743); Loza, 659 S.W.3d at 497 (citing Kirsch, 357 S.W.3d at 649).
Accordingly, we affirm the judgment of the trial court.

W. STACY TROTTER
JUSTICE

May 21, 2026
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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