Makiyah Cheney v. the State of Texas

Affirmed and Memorandum Opinion filed July 2, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00088-CR

MAKIYAH CHENEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1704536

MEMORANDUM OPINION

A jury found appellant Makiyah Cheney guilty of reckless aggravated
assault and assessed punishment at five years confinement in the Texas
Department of Criminal Justice—Institutional Division but recommended that
appellant be granted community supervision. The trial court ordered appellant’s
sentence suspended and placed appellant on community supervision for five years.
In a single issue, appellant complains that the trial court erred by failing to
include an appropriate instruction on self-defense against multiple assailants in the
jury charge. See Tex. Penal Code § 9.32. We affirm.
Background

Appellant met with Darian Jackson and Destiny Autenreith, the complainant,
in a Kroger parking lot for a drug deal. Darian drove the car with Destiny in the
passenger seat. Darian’s car and appellant’s car parked next to each other, driver’s
side door to driver’s side door. Darian exited the vehicle and Destiny remained in
the passenger seat. Destiny testified that she was not paying attention to the
interaction between Darian and appellant.

Darian got into appellant’s car and asked to see the marijuana, but appellant
refused, asking for money first. Darian testified he saw appellant reaching for
something he believed to be a weapon, and got out of the car, feeling “weird”
about the situation. (3RR81-82, 3RR149). Darian went back to his car and spoke
with Destiny. He asked her if she still wanted to get the marijuana after telling her
what happened, and she said she did. (3RR149).

Darian returned to appellant’s car with a phone flashlight, and asked
appellant again to see the marijuana, which appeared to Darian to agitate appellant.
Appellant refused. Darian then gave appellant the money and testified that he saw
a gun under appellant’s right thigh. Darian and appellant continued to have a
verbal disagreement, and according to Darian, appellant reached for the gun.
Because Darian thought appellant was going to shoot him, Darian pepper sprayed
appellant. (3RR153). Appellant and Darian then fought over the gun. When Darian
determined appellant had the gun, he ran to the back of appellant’s car and began
pounding on the back window, breaking it. (3RR86-87, 92, 152) Appellant fired
the gun several times.

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Destiny testified that she had not been paying attention but after hearing
yelling and loud noises, looked down and saw that she was bleeding and had been
shot. She then moved the car away. Appellant left the scene. Darian got into the car
and drove Destiny to a hospital. Appellant was later stopped in traffic and arrested
for two counts of aggravated assault. Darian testified he was in fear for his life and
Destiny’s life.

After both sides rested, the trial court instructed the jury on the law of self-
defense. See Tex. Penal Code § 9.31. Appellant’s counsel objected to the inclusion
of the Penal Code section 9.05 language regarding innocent bystanders as it related
to Destiny because Destiny had “set up” the drug deal, provided the mace Darian
used on appellant, and admitted she told Darian to lie to police about the nature of
the transaction; the inclusion of a lesser included offense instruction of reckless
aggravated assault; and the exclusion of “recklessness” in the intent language in
the self-defense instruction. (6RR49-51). The trial court overruled appellant’s
objections as to the 9.05 language and the lesser included offense but allowed the
inclusion of recklessness in the self-defense instruction. The trial court did not
include an instruction regarding self-defense against multiple assailants.
Appellant’s trial court counsel did not object to the omission at trial.

Analysis

In a single issue, appellant argues that the self-defense jury instruction was
reversible error because the trial court failed to instruct the jurors on the law
regarding self-defense against multiple assailants.

We review complaints of jury-charge error under a two-step process. See
Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2004); Abdnor v. State,
871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994). First, we must determine
whether error exists in the trial court’s charge. Wooten v. State, 400 S.W.3d 601,
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606 (Tex. Crim. App. 2013). Second, if there is error, the court must determine
whether the error caused sufficient harm to require reversal of the conviction. See
id. If the defendant preserved error by timely objecting to the charge on the issue
raised on appeal, we will reverse if the defendant demonstrates that he suffered
some harm as a result of the error. Reeves v. State, 420 S.W.3d 812, 816 (Tex.
Crim. App. 2013). Under the some-harm standard, reversal is required if the error
is “calculated to injure the rights of the defendant.” Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985); Ramjattansingh v. State, 587 S.W.3d 141, 156
(Tex. App.—Houston [1st Dist.] 2019, no pet.). If the defendant did not timely
object to the charge-error issue raised on appeal, 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. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App.
2015); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); see
also Ngo, 175 S.W.3d at 743. In both circumstances, we determine harm by
reviewing “the whole record, including the jury charge, contested issues, weight of
the probative evidence, arguments of counsel, and other relevant information.”
Jordan v. State, 593 S.W.3d 340, 344 (Tex. Crim. App. 2020).

A defendant is entitled to an instruction on every defensive issue raised by
the evidence regardless of the strength of the evidence and even if the trial court is
of the opinion that the testimony is not credible. Maciel v. State, 631 S.W.3d 720,
722–23 (Tex. Crim. App. 2021); Enns v. State, 612 S.W.3d 616, 628 (Tex. App.—
Houston [1st Dist.] 2020, pet. ref’d); Reynolds v. State, 371 S.W.3d 511, 521–22
(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The trial court’s “only role is to
determine if there is some evidence—even if weak, inconsistent, or
contradictory—that a rational jury could find supports the defense.” Rodriguez v.
State, 629 S.W.3d 229, 321 (Tex. Crim. App. 2021). We review a trial court’s

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denial of a request for a defensive instruction for an abuse of discretion, while
viewing the evidence in the light most favorable to the defendant’s requested
instruction. Reynolds, 371 S.W.3d at 522; see also Maciel, 631 S.W.3d at 722–23.

A defendant is entitled to a multiple-assailant jury instruction if there is
“evidence that the defendant had a reasonable fear of serious bodily injury from a
group of people acting together.” Jordan v. State, 593 S.W.3d 340, 344 (Tex.
Crim. App. 2020); see also Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App.
1985) (noting defendant may be “entitled to a charge on the right of self-defense
against multiple assailants”).

In the application paragraph of the jury charge pertinent to appellant’s claim
of self-defense, the trial court instructed the jury:

“You are further instructed that even if you believe the defendant,
Makiyah Jaquoylon Cheney, was justified in threatening or using
deadly force against another, if in doing so he also recklessly injured
Destiny Autenreith, an innocent third person, then the justification
does not apply and you will find the defendant guilty of aggravated
assault.
Now, if you believe from the evidence beyond a reasonable doubt that
the defendant, Makiyah Jaquoylon Cheney, in Harris County, Texas,
on or about the 30th day of December, 2020, did then and there
unlawfully and intentionally or knowingly shoot a firearm at Darian
Jackson, intending or knowing that serious bodily injury or death
would occur to Darian Jackson, but instead, missed Darian Jackson
and hit Destiny Autenreith, causing bodily injury with the use of a
deadly weapon, namely, a firearm, then you will find the defendant
guilty of aggravated assault, as charged in the indictment.”
Appellant objected to the inclusion of Penal Code section 9.05 language,
which described Destiny as an innocent bystander:

“. . . we also object to the inclusion of the 9.05 language in that there
is no fact at issue that Destiny Autenreith was an innocent bystander.
All the testimony has been is [sic] that she communicated with

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McCanny [sic]. She obviously was looking at the weed, provided her
phone, she was there, she testified that she was talking and interacting
with Darian as he was in the transaction. And she also testified that
she readily knew that drug transactions were dangerous, and that’s
why she always made sure Darian carried pepper spray with him. So
this is not one of those situations where we need a justification
limiting instruction by the way of 9.05. There simply is not a fact at
issue in which Destiny could possibly be an innocent bystander, and
to even put that before the judge is prejudicial to Mr. Cheney and risks
the possibility of misleading the jury into thinking that she could have
been an innocent bystander. So we’d object to that.”
Because a defensive issue is not “the law applicable to the case” until the
defendant requests it be included in the court’s charge, a defendant forfeits his
right to complain on appeal about the omission of a defensive issue if he fails to
request such an instruction at trial. See Delgado, 235 S.W.3d at 249–51; Williams
v. State, 273 S.W.3d 200, 223 (Tex. Crim. App. 2008). Here, the record reflects
that appellant did not request that a multiple assailant charge be included. Thus,
without a request, the trial court was under no duty to include such an instruction
in its charge and committed no error in not including it. See Williams, 273 S.W.3d
at 223 (citing Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998)).

Accordingly, we overrule appellant’s sole point of error.

Conclusion
We affirm the judgment.

/s/ Margaret “Meg” Poissant
Justice

Panel consists of Justices Jewell, Bourliot, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b)
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