Edwin Thomas Baty v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00252-CR
__________________

EDWIN THOMAS BATY, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. 22DC-CR-00562
__________________________________________________________________

MEMORANDUM OPINION

Edwin Thomas Baty was indicted for capital murder by terroristic threat or

other felony. Tex. Penal Code Ann. § 19.03(a)(2). The indictment alleged that Baty

“did then and there intentionally cause the death of an individual, namely

Christopher Aaron Jorgensen, by shooting Christopher Aaron Jorgensen with a

firearm, and the defendant was in the course of committing or attempting to commit

the offense of obstruction or retaliation against Christopher Aaron Jorgensen, and

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the defendant did then and there use or exhibit a deadly weapon, to wit: a firearm,

during the commission of said offense[.]” The State’s theory at trial was that Baty

intentionally killed Jorgensen because Baty sexually abused Jorgensen, and

Jorgensen threatened to go to the police about the abuse. Because Baty was a

convicted child sex offender, another conviction would send Baty to prison for life;

he did not want this to happen, so—according to the State—he killed Jorgensen to

prevent Jorgensen from going to the police and sending him back to prison. Baty, on

the other hand, argued a case of self-defense. According to Baty, on the night of the

incident, Jorgensen acted aggressively towards Baty and another man named Alvin

Zachary, threw lawn equipment off the bed of a truck, beat up Zachary, and followed

Baty into his residence where Baty shot him in self-defense. The jury found Baty

guilty of the offense and sentenced him to life in prison without the possibility of

parole. However, the judgment of the trial court sentenced Baty to the Texas

Department of Criminal Justice for a term of life with the possibility of parole.

On appeal, Baty complains he received ineffective assistance of counsel

because his trial counsel failed to object in three general areas: he failed to object to

four extraneous offenses, he failed to object when Baty invoked his right to counsel

during a recorded interview that was played for the jury, and he failed to object to

three areas of the jury charge. He also complains that the judgment contains an illegal

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sentence. For the reasons discussed below, we affirm the trial court’s judgment as

modified herein.

Background

Several witnesses testified at trial. We discuss the testimony from the

witnesses whose testimony is relevant to the issues on appeal.

Luis Jennings

Luis Jennings is a patrol officer with the Liberty County Sheriff’s Office who

responded to a shooting on May 1, 2022. When he arrived, two people were present

on the property: Zachary, who had blood on his face, and Baty. Jennings testified

that Baty told him he called 911 and that there was a gun in the house. Jennings

observed Zachary with a laceration at the top of his nose, one on the bridge of his

nose, and another on his chin. Jennings could not specifically remember if he

observed lawn tools and equipment scattered on the ground but did testify that

“[t]here was stuff on the ground.”

Jennings also explained the “21-foot rule,” which “is a reactionary gap

regarding the advancement of a person trying to commit a deadly act to another

person, and that person has basically about a second-and-a-half to react to that 21-

foot rule. You can use deadly force within that 21-foot rule.” The prosecutor posed

a scenario to Jennings where someone is standing in a room with a shotgun behind

a door and their attacker is within ten feet and begins to charge. The prosecutor asked

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if it was probable that a person would have time to retrieve the weapon, level it, and

fire it before the attacker either pushed the weapon away or was on top of that person.

In Jennings’s opinion, “it would be more than one-and-a-half seconds to react to

grabbing the weapon, leveling the weapon to defend yourself, and then firing the

weapon at the -- at your threat.” He believed that the threat would be upon such a

person before the person could fire.

On cross-examination, Jennings testified that about seventy percent of

Zachary’s face was covered in blood, which was a sign that someone had been beaten

up. He also observed Zachary, who he said was “very shaken and very distraught.”

He opined that Baty seemed “a little distraught, a little apologetic about what had

happened.” He agreed that Zachary and Baty seemed like they got out of a pretty

stressful situation. He also agreed that stress can cause people to perceive minor

details incorrectly.

Steven Thomas Rasberry

Rasberry is an investigator with the Liberty County Sheriff’s Office who

responded to the shooting. Rasberry was responsible for interviewing witnesses that

were on the scene. He also conducted two recorded interviews with Baty. Rasberry

testified that Baty told him in the first recorded interview that he returned home that

evening and Jorgensen assaulted Zachary. Zachary retreated into the main residence

at this address. Baty also went into the residence. Jorgensen followed Zachary into

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the residence, acting aggressively. Jorgensen charged Baty in an aggressive manner

and Baty used a shotgun in his possession to defend himself. At the time Baty gave

Rasberry his first statement, Rasberry did not have enough information to decide

whether Baty acted in self-defense.

Rasberry recalled that when he responded to the scene of the crime, he saw

Jorgensen lying on the ground just outside the front door of the residence with

“traumatic injury wounds from a firearm that matched the description that the

defendant gave” him, a shotgun. During his investigation, he determined that there

were five people on the scene of the crime but when he arrived, there were only two:

Baty and the deceased. He later learned that a man named Daniel Luken had been

present that night, and Rasberry interviewed him several days later. During

Rasberry’s first interview with Baty, Baty stated that he did not know whether Luken

was present the night of the shooting. Rasberry later learned that Luken had also

fired a shotgun.

Baty told Rasberry that he fired his shotgun at Jorgensen three times. Baty

also told Rasberry that Jorgensen was aggressively approaching him while he was at

the threshold of Baty’s bedroom door. Baty stated that Jorgensen was trying to get

into his bedroom by way of the door. Baty told Jorgensen to go away. Baty opened

the door and Jorgensen charged Baty, and that is when Baty fired. Rasberry did not

understand from speaking with Baty whether Jorgensen was right in front of Baty or

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several feet away. Rasberry testified that no witnesses told him that Jorgensen had a

weapon. Nor did Rasberry see Jorgensen with a weapon.

The prosecutor played Baty’s first recorded interview with Rasberry. Rasberry

read Baty his Miranda rights. Near the end of the interview, Baty states that he is out

on bond for a DWI and that he was charged with aggravated sexual assault of a child

for which he served five years in prison. The reporter’s record indicates that the file

was played but the recording was not transcribed by the reporter.

Rasberry reviewed several photos taken of the crime scene. Rasberry noted

several things when looking at the photos: blood spots inside Baty’s home; an

absence of damage on Baty’s bedroom door; and an absence of serious injuries on

Zachary. Rasberry testified that Baty told him that Jorgensen approached Zachary’s

vehicle and was taking stuff out of the back and throwing it on the ground, but

Rasberry testified that he saw no evidence of any lawn equipment strewn about. Baty

admitted that Jorgensen was someone who fought with his hands and that Jorgensen

was never known to use a weapon in a fight.

Rasberry told Baty that a self-defense case would be better if the victim had a

weapon. Rasberry testified that he conducted a second interview with Baty because

of his on-scene investigation, the autopsy report, and his interviews with Zachary

and Luken which provided contradictions to Baty’s first interview. Rasberry learned

that Luken had been at the scene but left prior to law enforcement’s arrival, and Baty

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and Zachary knew that. Rasberry believed that Luken left the scene because he fired

a weapon during the incident, physically assaulted Jorgensen with a knife, and had

seven open felony warrants. Baty did not tell Rasberry in his first interview that he

saw Luken fire a shotgun.

Rasberry conducted the second interview with Baty after he was arrested. Baty

waived his Miranda rights. The second interview was played for the jury. The

reporter’s record indicates that the file was played but the recording was not

transcribed by the reporter. At the end of the recording, Baty states, “I think I’m

gonna stop the interview.” Rasberry responded, “That is your right.” Baty then says,

“I need a court appointed attorney. Can I make a phone call?” Rasberry responds,

“You’ll be able to make a phone call when you’re booked in.” Rasberry then says,

“I’m gonna stop the interview now.”

After conducting the second interview, Rasberry did not believe Baty acted in

self-defense. Baty recalled in the second interview that Luken was in the house, but

he said he did not remember Luken firing the shotgun. Crime scene photographs

show a shotgun blast had impacted the doorframe to the residence, which law

enforcement believed to be the one fired by Luken. Another photograph depicts

Luken’s bedroom with a shotgun impact on a dresser drawer. Rasberry learned that

Luken was the second shooter. According to Rasberry, two shooters would not lend

weight to a self-defense claim. Baty had said that Jorgensen was near the dining

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room table and kitchen island in the residence when Jorgensen charged Baty and he

had to shoot him.

The prosecutor asked Rasberry about the 21-foot rule. Rasberry testified that

Baty “would have to be extraordinarily fast to be able to make that reaction and

decision and take action within the size of about fourteen feet or so.” The reaction

time would be less than a second according to Rasberry. Baty told Rasberry that

Jorgensen was retreating and that Baty advanced. Rasberry says the story Baty gave

him was as follows: Jorgensen retreated; Baty shot him with a round of buckshot;

Jorgensen retreated outside, and the other round missed Jorgensen because it hit the

door; Jorgensen is about fifteen feet away and Baty opens the door; Baty says

Jorgensen is still arguing with him, and Baty shoots Jorgensen again. In Rasberry’s

opinion, the events did not amount to self-defense.

Rasberry testified that Baty and Zachary alleged Jorgensen attacked Zachary

when they were putting groceries away in a building next to Zachary’s truck.

Zachary was beaten up by Jorgensen, Baty retreated into the residence and Jorgensen

followed him. Jorgensen and Luken had an encounter in the doorway, where Luken

was sitting and watching everything unfold. Zachary then entered the house.

On cross examination, Rasberry testified that he did not “100% believe” that

Zachary was beaten up. During the course of his interviews, he said that everyone

indicated Jorgensen was extremely agitated and angry. Baty, Luken, and Zachary all

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had guns because they were uneasy with Jorgensen. He testified that Jorgensen was

hit with two rounds of buckshot.

Alvin Ray Zachary

Zachary and Baty were former lovers who met in prison. Zachary testified that

Luken lived on Baty’s property with him and Baty. Jorgensen came to live on Baty’s

property about seven to eight months before he was killed because Jorgensen and

his wife were having issues. Jorgensen has assaulted and choked his wife, was

arrested, and had a restraining order. Baty bailed Jorgensen out of jail.

Zachary described physical violence between him and Baty and described

Baty as “somewhat” of a controlling person. Zachary testified that Baty told him

“there was going to be a hunting accident and that’s how I was going to be taken

care of[]” and Jorgensen was going to be the person who he had the hunting accident

with.

Zachary went to prison for aggravated sexual assault. He knew Baty had a

similar charge that was a sexual assault charge against a child, and Jorgensen did not

like that Baty had that charge. Zachary testified that Jorgensen’s last words were,

“Why did you touch me?” Zachary opined that when Jorgensen first moved to the

property, he did not want to sleep in the same room as Baty. Zachary found

Jorgensen’s responses “very peculiar, very odd to me.” Having watched his sisters

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get sexually abused, Zachary felt something had happened between Jorgensen and

Baty.

Zachary described the night of the incident. He testified that he and Baty

returned to the property after purchasing groceries. Baty took the groceries to his

“man cave” and Zachary took some of the groceries into the house. Baty yelled at

Zachary because Jorgensen threw Zachary’s lawnmowers and weed-eaters out of the

back of the truck. Zachary came out of the house and recalled seeing Jorgensen

“coming out of the air.” Jorgensen hit Zachary in the head. Zachary fell to the ground

while Jorgensen kicked him in the jaw. Zachary recalls that he thought Jorgensen

attacked him because Baty was mad at Zachary for beating him up, and Jorgensen

resented Zachary for what he did to Baty.

Jorgensen hit Zachary with his hands and his foot. Baty called to Jorgensen

and told him to get off of Zachary. Baty went into the house and Jorgensen followed

him. Zachary then went into the house to get his dogs. Jorgensen was in the dining

room and Baty was in his bedroom. Zachary testified that Luken was also in the

house. Zachary saw Jorgensen banging on Baty’s bedroom door, wanting to talk to

Baty. Zachary was trying to get all the dogs into his room. Zachary was also helping

Luken to get the little dogs put up in case Baty had to shoot, even though Jorgensen

did not have a weapon on him. Zachary agreed that Jorgensen never fought with a

weapon and that he used his hands to fight. Zachary testified that he thinks Baty shot

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Jorgensen because “his rampage episodes were escalating[]” “for about a month or

two.” He thinks that something happened between Baty and Jorgensen and that had

a part in Jorgensen’s agitation.

Zachary testified that everyone that lived on Baty’s property used drugs except

Baty. But Baty smoked marijuana and drank a lot. Zachary is currently in prison for

a drug charge. Baty drank to the point where he became violent and beat Zachary.

Zachary told investigators that Baty gave him a gun and told him, “If you shoot Chris

[Jorgensen], make sure you kill him.” Zachary was present when Baty gave Luken

a gun. Zachary testified that he and Luken were present when Baty stated, “Make

sure you shoot Chris, make sure you kill him[.]” Baty said this a few days before

Jorgensen was killed.

Zachary testified that the night Jorgensen was killed, he put all of the dogs in

Luken’s bedroom and lay down on the floor. Luken was standing up with a gun and

exited his room with it. He believes Luken fired a gun that night and bullets struck

the corner of the door. Zachary told investigators that he was putting up the dogs

because he knew what was about to happen, stating, “They’re fixing to fill him full

of holes[.]” Zachary testified that Baty shot Jorgensen twice.

Zachary testified that the moment Baty shot Jorgensen, Jorgensen said “Why

did you touch me?” Zachary also observed Luken cut Jorgensen’s throat. When

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Luken was cutting Jorgensen’s throat, he said, “Remember what Ed said. We gotta

make sure he’s dead.”

On cross examination, defense counsel asked questions about Jorgensen’s

rampages and felony charges. Defense counsel also discussed Jorgensen’s

methamphetamine habit and asked Zachary if Jorgensen was a “powder keg[,]”

“[a]bout to explode[,]” which Zachary responded “Yeah. Yes. Yes, sir. Yes, sir.”

Zachary described Jorgensen as “mule strong[]” and that if Jorgensen were to get

into a physical confrontation with Baty, Baty wouldn’t stand a chance against him.

Zachary testified that he would have been scared for his safety if he were Baty or

Luken when Jorgensen went into the house. He agreed that Baty and Luken were

justifiably scared of Jorgensen and what Jorgensen might do and “that was the reason

that things ended up going the way that they did.” He opined that if Baty had not

pulled the trigger, he does not think Jorgensen would have attacked Baty.

Dr. Bai Yang Xu

Dr. Xu reviewed the case file and the autopsy performed by another doctor.

He testified that Jorgensen had 430 nanograms per milliliter of methamphetamine in

his system at the time of his death. Dr. Xu explained that amount is enough to have

an effect on the person who took it but did not influence the multiple pellet wounds

he received.

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Cassandra Zapata

Cassandra met Jorgensen through her sister and her brother-in-law. In early

February, she had problems finding a place to stay. Jorgensen told Cassandra he was

going to stay at his dad’s property because of issues with his wife and that Cassandra

could stay with him. She went with Jorgensen to Baty’s property. There were five

people that lived on Baty’s property: Cassandra, Baty, Jorgensen, Luken, and

Zachary.

She testified that Baty and Jorgensen would get along some days and argue a

lot of other days. She never saw Jorgensen attack Baty or anyone else on the

property. Cassandra spoke with Jorgensen about how he felt about Baty. Cassandra’s

impression was that Jorgensen “felt a little -- he was angry in a way.” “He resented

him a little bit for things that had happened in the past.” She agrees there was a part

of Jorgensen that loved Baty, and Jorgensen would call Baty his dad. “He looked up

at him like he was a father figure.” However, Baty was not Jorgensen’s biological

father. Based on the relationship she saw between Jorgensen and Baty during the

three months she stayed on Baty’s property, she does not believe that Jorgensen

would ever lay a hand on Baty. She testified, “Chris was not a violent person.”

Jorgensen might argue and yell, but he would not physically fight with somebody.

Jorgensen would fight if he was pushed to it, but he would not start a fight according

to Cassandra.

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Cassandra testified about three incidents that occurred on the property that

agitated Jorgensen: his cat died, his pillow went missing, and a SIM card in his phone

that didn’t work correctly. Zachary was involved in the first incident, and Baty was

involved in the other two.

On the night Jorgensen was killed, Cassandra heard a gunshot but thought it

was normal because people on the property shoot coyotes. She did not hear yelling

before the gunshot. Baty told Cassandra that Jorgensen came home that night and

was angry that people were “messing” with his truck. Baty told her that Jorgensen

ran up to Zachary and began beating Zachary and Luken. Baty then ran inside, and

Jorgensen asked Baty, “Are you going to get your gun?” Baty told him, “No.”

Cassandra testified that Baty “ran inside anyway and went to his room and grabbed

his shotgun.”

Cassandra is aware that Jorgensen alleged that Baty molested him when he

was a child. She had a conversation with Baty about this topic. Baty told Cassandra

he was worried because Jorgensen had “threatened to tell people and tell the law

about what had happened previously and an incident that had occurred allegedly

recently, and that he was worried because it would put him in prison the rest of his

life and he didn’t want to go to prison for the rest of his life.” Baty told her he would

go to prison for the rest of his life, “[b]ecause he had previous charges of child

molestation charges and that this was basically the same thing.”

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Cassandra described a recent incident where Jorgensen drank so much that he

passed out in the pump house. Baty was aware Jorgensen was in the pump house,

passed out. Cassandra told Baty that she was going to check on Jorgensen. Baty told

Cassandra he was passing by the pump house and that he would check on Jorgensen.

The next day, Cassandra saw Jorgensen. Jorgensen was “very upset” with Cassandra,

“[b]ecause he felt like I allowed Mr. Baty to go over there and check on him instead

of me doing it.” She got the impression that Jorgensen was upset. Cassandra asked

Jorgensen if Baty touched him. Jorgensen started crying. Jorgensen told her details

about what happened in the pump house.

At that point, the relationship between Baty and Jorgensen changed.

Cassandra “observed a lot of arguing and Chris yelling, threatening to tell the police

what had happened and tell people what had happened.” This happened about two

weeks before Jorgensen was killed. Cassandra did not observe the fight between

Jorgensen and Zachary, she did not see Jorgensen get shot, and she did not hear what

was said. She did see Luken on the property earlier in the day but not that evening.

Defense counsel did not ask Cassandra any questions.

Elizabeth May Jorgensen

Elizabeth May Jorgensen is the decedent’s mother. She explained her son was

around eight or ten years old when he met Baty at a golf club where Baty was a golf

pro. During the time after Jorgensen met Baty, Jorgensen’s behavior changed. He

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became a bit standoffish, withdrawn, and moody. She got a funny feeling when

Jorgensen was “chumming up with an older man.” She never saw Baty touch

Jorgensen inappropriately but believed Baty did. She filed two police reports, but

Jorgensen would not disclose anything to law enforcement, so no charges were filed.

She also testified that Jorgensen had a problem with using methamphetamine that

started after he met Baty.

Elizabeth testified that she “had three husbands that were abusive.” She

described her husbands as “all abusive to me and just the two boys . . . [.] But

Christopher’s father was abusive towards Chris and my oldest son.” She described

the abuse as “the last time that we were there with him, he was chasing after them

with a two-by-four. So it was time for me to leave with my children.” Jorgensen’s

biological father “would hit [his brother] more than he would hit Christopher.”

She described Baty as “always kind to Christopher, always, and Christopher

loved him. And eventually he started calling him dad.” That bothered Elizabeth.

Later in life, when he was married, Jorgensen confided to Elizabeth that she was

right about the suspicions she had about Baty. Defense counsel did not ask Elizabeth

any questions on cross-examination.

The defense did not call any witnesses. There is no record of a charge

conference and there is no record of any objections to the charge. In its closing

argument, the State argued Baty shot Jorgensen, not in self-defense, but

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intentionally, firing twice as he advanced on Jorgensen, who was retreating from

Baty. The State claimed that Baty was worried that Jorgensen was going to go to the

authorities about the sexual molestation that occurred when he was a child. With his

previous conviction for aggravated sexual assault of a child, Baty “knew a second

conviction was mandatory life, and he wasn’t going there. That’s what the

obstruction part is about.” The State mentioned to the jury that there was an

instruction in the jury charge on extraneous crimes or bad acts and explained that

Baty’s prior conviction and prison time he served for aggravated sexual assault of a

child is relevant to Baty’s motive.

In its closing argument, defense counsel pointed out that “everybody on that

property, besides my client, was using meth at the time.” He emphasized Jorgensen’s

assault on a family member, Jorgensen’s meth use, and Jorgensen’s escalating and

aggressive behavior the night of the murder. Baty’s counsel acknowledged that “he’s

got a mark on him,” “[b]ut that doesn’t mean that he did this.” Baty argued that this

was a case of self-defense, characterizing Jorgensen as “out of control[,]” a “powder

keg” who “exploded.” He emphasized that Jorgensen “beat one person down, and

he scared three grown men to death, two of them shot him. If that’s not self-defense,

I don’t know what is.”

The jury returned a verdict of guilty. The jury sentenced Baty to imprisonment

in the Institutional Division of the Texas Department of Criminal Justice for a term

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of life without parole. The trial court pronounced the sentence of the jury, sentencing

Baty to life in prison without the possibility of parole.

Baty filed a motion for new trial and request for evidentiary hearing. The

motion asserted three grounds for granting a new trial: (1) the verdict is contrary to

the law and evidence; (2) trial counsel did not render effective assistance of counsel

at the guilt-innocence phase of trial; and (3) a new trial is warranted in the interest

of justice. In his motion for new trial, Baty complained that trial counsel’s

performance was deficient because he failed to object to the admission of prior bad

acts of the Defendant and witnesses, including Baty’s conviction of a sex offense

against a child and registration as a sex offender, Baty’s charge of DWI, and Baty’s

sex offenses committed against Jorgensen that were not prosecuted. The motion was

overruled by operation of law.

Baty complains of two issues on appeal: ineffective assistance of counsel and

an illegal sentence. We categorize his ineffective assistance of counsel argument into

three sub issues: whether Baty received ineffective assistance of counsel when his

trial counsel failed to object to testimony concerning extraneous offenses, whether

Baty received ineffective assistance of counsel when his trial counsel failed to object

when Baty invoked his right to counsel, and whether Baty received ineffective

assistance of counsel because of alleged errors in the jury charge.

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Issue One: Ineffective Assistance of Counsel

Standard of Review

To prevail on a claim of ineffective assistance of counsel, an appellant must

meet a two-pronged test:

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v.

State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Strickland requires an appellant to

show a reasonable probability that, but for his counsel’s errors, the outcome of his

trial would have been different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002). A reasonable probability is one sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at 694. Failure to meet either Strickland prong is fatal

to an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999).

“Appellate review of defense counsel’s representation is highly deferential

and presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance.” Bone, 77 S.W.3d at 833 (citation omitted). Appellant must

prove there was no plausible professional reason for specific acts or omissions of his

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counsel. Id. at 836. “Any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.”

Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.

Crim. App. 1996)). Because the reasonableness of counsel’s decisions and strategy

often involves facts that do not appear in the appellate record, the record on direct

appeal is usually insufficient to support an ineffective assistance claim. Id. at 813–

14. However, “when no reasonable trial strategy could justify the trial counsel’s

conduct, counsel’s performance falls below an objective standard of reasonableness

as a matter of law, regardless of whether the record adequately reflects the trial

counsel’s subjective reasons for acting as [he] did.” Andrews v. State, 159 S.W.3d

98, 102 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 690).

“In the rare case in which trial counsel’s ineffectiveness is apparent from the

record, an appellate court may address and dispose of the claim on direct appeal.”

Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). When the record is

silent as to the reasoning behind an alleged deficiency by trial counsel, “we will

assume that counsel had a strategy if any reasonable sound strategic motivation can

be imagined.” Id.; see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001) (“[I]n the absence of evidence of counsel’s reasons for the challenged conduct,

an appellate court . . . will not conclude the challenged conduct constituted deficient

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performance unless the conduct was so outrageous that no competent attorney would

have engaged in it.”).

Generally, unless a record is created in the trial court that allows the attorney

who represented the defendant to explain the reasons a case was handled the way it

was handled at trial, the record in the direct appeal will not be sufficiently developed

for the appellant to meet their burden to establish their attorney provided ineffective

assistance of counsel in the trial unless the challenged conduct was “so outrageous

that no competent attorney would have engaged in it.” Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005) (citations omitted).

Admission of Extraneous Offenses

“When an ineffective assistance claim alleges that counsel was deficient in

failing to object to the admission of evidence, the defendant must show, as part of

his claim, that the evidence was inadmissible.” Ortiz v. State, 93 S.W.3d 79, 93 (Tex.

Crim. App. 2002). Texas Rule of Evidence 404(b) provides that “Evidence of a

crime, wrong, or other act is not admissible to prove a person’s character in order to

show that on a particular occasion the person acted in accordance with the

character.” Tex. R. Evid. 404(b)(1). Texas Rule of Evidence 403 provides that even

relevant evidence may be excluded “if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury. . . [.]” Id. 403.

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However, Rule 404(b) also provides that extraneous-offense evidence may be

admissible for other purposes, such as showing motive. Id. 404(b)(2). In all

prosecutions for murder, the State or the defendant shall be permitted to offer

testimony as to all relevant facts and circumstances surrounding the killing and the

previous relationship existing between the accused and the deceased, together with

all relevant facts and circumstances going to show the condition of the mind of the

accused at the time of the offense. Tex. Code Crim. Proc. Ann. art. 38.36(a).

Baty complains that trial counsel’s performance was deficient in not objecting

to the admission of three extraneous offenses: Baty’s conviction for aggravated

sexual assault, Baty’s alcohol use and current bond for a DWI charge, and Baty’s

use of marijuana. Furthermore, Baty complains that he received ineffective

assistance of counsel when trial counsel failed to object to the admission of evidence

regarding physical abuse of Jorgensen by Jorgensen’s father. We find that Baty has

failed to demonstrate that his trial counsel’s performance was deficient in each of

these areas.

Aggravated Sexual Assault Conviction

Baty’s previous conviction for aggravated sexual assault was admissible

evidence, so trial counsel’s failure to object to this evidence did not fall below an

objective standard of reasonableness as failure to object to admissible evidence does

not constitute ineffective assistance of counsel. Agbogwe v. State, 414 S.W.3d 820,

22
835 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Baty was indicted for capital

murder. “As a predicate to charging capital murder, the Penal Code requires that a

defendant commit murder as defined under Section 19.02(b)(1).” Graham v. State,

19 S.W.3d 851, 853 (Tex. Crim. App. 2000). “The predicate murder is then

aggravated to capital murder where any one of eight additional circumstances are

present.” See id. Here, the State alleged in the indictment that Baty intentionally

committed murder in the course of committing or attempting to commit obstruction

or retaliation. See Tex. Penal Code Ann. § 19.03(a)(2). Zachary testified at trial that

he met the defendant in prison while serving a sentence for aggravated sexual assault

of a child. Zapata testified that Baty told her that Jorgensen had threatened to tell

law enforcement about Baty’s molestation of Jorgensen, and that Baty was worried

because it would mean Baty would go to prison for the rest of his life, and Baty did

not want to go back to prison. Zachary further testified how Baty told him that if he

shoots Jorgensen, that he needed to make sure he killed Jorgensen. Therefore, the

evidence was admissible to prove that Baty intentionally killed Jorgensen in the

course of committing obstruction or retaliation.

Evidence of Baty’s previous conviction for aggravated sexual assault was

admissible to prove motive. See Austin v. State, 222 S.W.3d 801, 807-08 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d). Zapata’s testimony implied that about

two weeks before the murder, Baty molested Jorgensen in the pump house. One

23
plausible theory is that the incident at the pump house triggered Jorgensen to want

to report Baty to law enforcement because Baty sexually assaulted Jorgensen again.

Therefore, the conviction tended to show why Baty killed Jorgensen and to rebut

Baty’s theory of self-defense.

Drug and Alcohol Use

Next, we turn to Baty’s complaint about trial counsel’s failure to object to the

admission of evidence regarding his alcohol and drug use. At trial, an audio

recording of Rasberry’s interview with Baty was played where Baty freely admitted

to Rasberry that he was currently out on bond for a DWI charge. Additionally,

Zachary testified that Baty drank alcohol frequently, to the point where he attempted

to beat Zachary, and that Baty used marijuana. Baty argues that the allegations of

drug use and alcohol abuse are not connected to the allegations on which Baty was

indicted nor were the allegations offered for any permissible 404(b)(2) purpose.

Instead, the State used these acts to show that Baty was a bad person generally.

We disagree. Here, trial counsel could have had a reasonable trial strategy for

not objecting to this evidence. First, the information about Baty’s DWI was offered

voluntarily by Baty during his interview with Rasberry, which defense counsel could

then use to show Baty’s honesty and cooperation with law enforcement. Baty’s

alcohol use and marijuana use could have been used to demonstrate that Baty was

not like the others who were living on his property and Jorgensen in particular, who

24
was using other drugs. Specifically, Jorgensen was high on meth that night, had just

beaten up Zachary, and was acting so aggressively that Jorgensen would not stop his

own behavior. Because Baty’s trial counsel did not object to this testimony, the jury

was able to hear that Jorgensen was a heavy user of meth and that in contrast, Baty

did not use meth, painting Baty in a better light than others living on the property.

Previous Abuse by Victim’s Father

Baty argues that testimony from Jorgensen’s mother regarding the abuse

Jorgensen suffered by his (biological) father was not relevant to any fact issues raised

in his trial, that it was not relevant to Baty’s guilt or innocence, and that the jury

should not have heard that testimony. Baty does not explain how counsel’s failure to

object to this evidence fits the first Strickland prong. The record is silent as to why

Baty’s trial counsel took or failed to take the complained-of actions. See Rylander v.

State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Trial counsel may have believed

that this testimony would aid in attempting to show Jorgensen was a “powder keg.”

Generally, trial counsel should be afforded the opportunity to explain his actions

before being denounced as ineffective. Bone, 77 S.W.3d at 836; see also Johnson v.

State, 624 S.W.3d 579, 586 (Tex. Crim. App. 2021). The record does not show that

trial counsel had an opportunity to respond to the alleged deficiencies Baty now

raises. See Johnson, 624 S.W.3d at 586; Bone, 77 S.W.3d at 836. We strongly

presume counsel rendered reasonable professional assistance. See Ex parte Saenz,

25
491 S.W.3d 819, 828 (Tex. Crim. App. 2016) (citations omitted) (noting line of cases

abiding by the Strickland principle of a strong presumption that counsel’s conduct

was reasonable). Based on the totality of this record, we conclude that Baty failed to

establish trial counsel’s performance fell below an objective standard of

reasonableness and that Baty has failed to satisfy the first prong of Strickland. See

Rylander, 101 S.W.3d at 111.

Invocation of Baty’s rights

Baty complains that State’s Exhibit 1 contained statements by him that

invoked his constitutional right to terminate his interview with law enforcement and

his right to counsel. In his brief, however, he does not explain how or why trial

counsel’s failure to object to this statement rises to the level of ineffective assistance

of counsel.

“Under the Fifth Amendment, a right to counsel exists as a prophylactic

protection of the right to remain silent; in other words, it exists to counteract the

inherent pressures of custodial interrogation.” Garcia v. State, 191 S.W.3d 870, 877

(Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing U.S. CONST. amend. V and

McNeil v. Wisconsin, 501 U.S. 171, 176 (1991)). “An individual may not be

penalized for exercising his Fifth Amendment rights when he is under police

investigation; evidence of his invocation of his right to counsel is inadmissible as

evidence of guilt.” Kalisz v. State, 32 S.W.3d 718, 721 (Tex. App.—Houston [14th

26
Dist.] 2000, pet. ref’d) (citing Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim.

App. 1991) and Mathieu v. State, 992 S.W.2d 725, 729 (Tex. App.—Houston [1st

Dist.] 1999, no pet.)). “Evidence of an accused invoking his right to counsel ‘may

indeed be construed adversely to a defendant and may improperly be considered as

an inference of guilt.’” Howard v. State, 482 S.W.3d 249, 258-59 (Tex. App.—

Houston [1st Dist.] 2015, pet. ref’d) (quoting Hardie, 807 S.W.2d at 322; see also

Doyle v. Ohio, 426 U.S. 610, 619 (1976)).

Baty contends that the admission of the invocation of the right to terminate

his interview and his right to counsel was ineffective assistance of counsel under

Strickland. Even if we presume that had his trial counsel objected, the trial court may

have excluded the invocation portion of the recording, this alone does not end the

inquiry pertaining to the first-prong, and we do not presume that had the trial court

admitted the evidence over the hypothetical objection, the error would have been

reversible. See Kalisz, 32 S.W.3d at 724 (“[A] reviewing court must first isolate the

error and all its effects and then ask whether a rational trier of fact might have

reached a different result if the error had not occurred and its effects had not

resulted.”).

On this record, we cannot conclude Baty’s trial counsel’s failure to object was

“‘so outrageous that no competent attorney would have engaged in it.’” Goodspeed,

187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440). Playing the invocation of

27
rights – which was in the last minute of a forty-seven-minute recording – did not

“move[] the jury from a state of nonpersuasion to one of persuasion[]” as to Baty’s

guilt. See Wesbrook v. State, 29 S.W.3d 103, 120 (Tex. Crim. App. 2000). The

evidence of Baty’s guilt and the evidence to refute Baty’s self-defense theory is

substantial. For instance, the State presented evidence that Baty had given guns to

Luken and Zachary prior to the shooting. The State also presented evidence

regarding the “21-foot rule” and provided physical evidence at the crime scene to

refute Baty’s claim of self-defense. Moreover, there was evidence that there were

two shooters and that Baty said in advance that Luken should make sure Jorgensen

was dead. The evidence also showed Jorgensen had threatened to report Baty to law

enforcement for sexual abuse and Baty did not want to go back to prison because of

his previous conviction; Jorgensen’s dying words were “Why did you touch me?”

The State did not emphasize Baty’s invocation of his right to counsel – the only time

the jury heard Baty invoke his right to counsel was on the audio interview. Therefore,

Baty has failed to satisfy the second Strickland prong as he cannot show he was

prejudiced by trial counsel’s failure to object.

Jury Charge

Baty argues that his counsel was ineffective for not objecting to three portions

of the jury charge: the portion of the jury charge which failed to include a “benefit-

of-the-doubt” instruction, the portion of the jury charge which failed to include the

28
word “attempting” in the self-defense instruction, and the portion of the jury charge

which did not define “provocation.”

The trial court is required to “deliver to the jury . . . a written charge distinctly

setting forth the law applicable to the case[.]” Tex. Code Crim. Proc. Ann. art. 36.14;

see also Mendez v. State, 545 S.W.3d 548, 551-52 (Tex. Crim. App. 2018); Vasquez

v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (citing Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994)). “Because the charge is the instrument by

which the jury convicts, [it] must contain an accurate statement of the law and must

set out all the essential elements of the offense.” Dinkins v. State, 894 S.W.2d 330,

339 (Tex. Crim. App. 1995) (internal citations omitted). “Regardless of the strength

or credibility of the evidence, a defendant is entitled to an instruction on any

defensive issue that is raised by the evidence.” Jordan v. State, 593 S.W.3d 340, 343

(Tex. Crim. App. 2020). “A defensive issue is raised by the evidence if there is

sufficient evidence to support a rational jury finding as to each element of the

defense.” Id. In addition to abstract definitions and instructions, the charge must

include an application section “that applies the pertinent penal law, abstract

definitions, and general legal principles to the particular facts and the indictment

allegations . . . specifies the factual circumstances under which the jury should

convict or acquit[.]” Vasquez, 389 S.W.3d at 366-67.

29
“Appellate review of purported error in a jury charge involves a two-step

process. First, we determine whether the jury instruction is erroneous. Second, if

error occurred, then an appellate court must analyze that error for harm.” Kirsch v.

State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Middleton v. State, 125

S.W.3d 450, 453 (Tex. Crim. App. 2003) and Abdnor, 871 S.W.2d at 731). If we

determine error in the charge exists but the defendant did not object to the error at

trial, we will reverse the conviction only if the error amounts to “fundamental error,”

which requires an appellant to demonstrate the error resulted in “egregious harm.”

See Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985); Tex. R. App. P.

33.1(a).

Had defense counsel objected to the alleged charge errors which Baty

complains about on appeal, and had the trial court overruled the objections, Baty

would have needed to show some harm on appeal. See Tex. Code Crim. Proc. Ann.

art. 36.19; Abdnor, 871 S.W.2d at 731-32; Almanza, 686 S.W.2d at 171.

Benefit-of-the-Doubt Instruction

Baty complains about the lack of a “benefit-of-the-doubt” instruction in the

capital murder charge. The jury charge in this case states:

You must decide whether the State has proved, beyond a reasonable doubt,
five elements. The elements are that:

1. On or about the 1st day of May 2022, in Liberty County, Texas;

30
2. The defendant, EDWIN THOMAS BATY, did then and there,
intentionally;
3. Cause the death of Christopher Aaron Jorgensen;
4. By shooting Christopher Aaron Jorgensen with a firearm;
5. And EDWIN THOMAS BATY was in the course of committing or
attempting to commit the offense of Obstruction or Retaliation[.]

You must all agree on elements 1, 2, 3, 4, and 5 listed above.

If you all agree the State has proved each of the five elements listed above,
beyond a reasonable doubt, then you will next consider whether the
defendant’s conduct was justified under the law of self-defense.

If you all agree the State has failed to prove, beyond a reasonable doubt, one
or more of elements 1, 2, 3, 4, or 5 listed above, you must find the defendant
“not guilty” of Capital Murder.

Should you find the defendant not guilty of Capital Murder, then and only
then will you next consider whether the defendant is guilty of the lesser-
included offense of Murder. (emphasis added)

Baty complains of the emphasized language on appeal, arguing that “this

requires the jury to be unanimous in acquittal of Capital Murder before the same jury

can consider the lesser included offense of murder.” He complains that the jury

charge did not include a benefit-of-the-doubt instruction as in Barrios v. State, 283

S.W.3d 348, 349-50 (Tex. Crim. App. 2009). Baty argues Section 5.3 of the Texas

Criminal Pattern Jury Charge Manual is more appropriate as it allows the jury to

consider all offenses in any order they choose, which contrasts to Baty’s jury charge

that prohibits the consideration of a lesser offense if the jury finds guilt as to the

greater offense.

31
“In a prosecution for an offense with lesser included offenses, the jury may

find the defendant not guilty of the greater offense, but guilty of any lesser included

offense.” Tex. Code Crim. Proc. Ann. art. 37.08. “Jury instructions that tell the jury

when and how to proceed from deliberating about a greater offense to deliberating

about a lesser-included offense are sometimes called ‘transitional instructions.’”

Sandoval v. State, 665 S.W.3d 496, 532 (Tex. Crim. App. 2022). The type of

transitional instruction that the trial court gave in this case is often referred to as an

“acquittal first” instruction because it requires the jury to acquit Baty on the greater

offense before deliberating on the lesser-included offense. See id. “[T]he statutory

wording of Article 37.08 necessarily means that a ‘unanimous finding of guilt on a

lesser-included offense necessarily requires a unanimous acquittal on the higher

offense.’” Id. at 535 (citation omitted).

“Where an offense consists of different degrees, a charge giving the defendant

the benefit of a reasonable doubt between the degrees would be proper, and it would

be error ordinarily in such case to refuse such a charge when requested.” McCall v.

State, 14 Tex. Ct. App. 353, 363 (1883) (cited with approval by Barrios, 283 S.W.3d

at 352). The “general rule” has been that a court “must upon the defendant’s request

give the jury” such an instruction. Benavides v. State, 763 S.W.2d 587, 589 (Tex.

App.—Corpus Christi–Edinburg 1988, pet. ref’d). Failure to include a “benefit-of-

32
the-doubt” instruction is not harmful to the defendant, however, if the charge as a

whole leaves no uncertainty as to how to resolve any doubt. Id.

Here, there is no record of a jury charge conference. From this record, there is

no request from defense counsel to include a benefit-of-the-doubt instruction at trial.

Regardless, we conclude that the omission of the benefit-of-the-doubt language in

the jury charge does not satisfy the first prong of the Strickland test. The “acquittal

first” instruction for capital murder “explicitly informed the jury that murder was an

available lesser offense if the jury did not acquit of capital murder.” Sandoval, 665

S.W.3d at 534. The guilt-stage jury charge was read in its entirety before closing

arguments and jury deliberations. See id. at 538. Before deliberations began, the jury

was aware that the lesser included offense of murder did not require it to believe that

Baty committed or was attempting to commit the offense of obstruction or

retaliation. See id. Obstruction or retaliation was an explicit element of capital

murder, so the transitional instruction effectively required the jury to acquit Baty of

capital murder, and consider the lesser offense of murder, if it had a reasonable doubt

about that one element, which was the sole element that distinguished the two

offenses. See id. Additionally, the evidence establishing Baty’s guilt for the murder

of Jorgensen while in the course of committing obstruction or retaliation was very

strong. Therefore, Baty has not shown a reasonable probability that even if trial

counsel had requested such an instruction, and even if the jury charge had included

33
such an instruction, the outcome would have been different. Therefore, Baty has not

satisfied the second Strickland prong.

Self-Defense Instruction

Baty complains that the jury charge on self-defense was in error because the

application paragraph requires the deceased to have been using unlawful deadly

force and does not include language that the defense would apply if the deceased

was “using or attempting to use unlawful deadly force.”

The self-defense portion of the jury charge states:

You have heard evidence that, when the defendant shot
Christopher Aaron Jorgensen with a firearm, the defendant believed his
use of deadly force was necessary to defend himself against Christopher
Aaron Jorgensen’s use or attempted use of unlawful deadly force.

If you all agree the State has proven Capital Murder or Murder
beyond a reasonable doubt, then you will next consider whether the
defendant’s conduct was justified under the law of self-defense with
regard to the offense you believe the State has proven beyond a
reasonable doubt.

...

Upon the law of self-defense, you are instructed that a person is
justified in using force against another when and to the degree he
reasonably believes the force is immediately necessary to protect
himself against one or more person’s use or attempted use of unlawful
force.

A person is justified in using deadly force against another if he
would be justified in using force against the other in the first place, as
set out above, and when and to the degree he reasonably believes that
such deadly force is immediately necessary to protect himself against
another’s use or attempted use of unlawful deadly force.
34
The use of force against another is not justified in response to
verbal provocation alone.

The use of force against another is not justified if the actor
provoked the other’s use or attempted use of unlawful deadly force,
unless the actor abandons the encounter, or clearly communicates 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 actor.

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.

...

“Reasonable belief” means a belief that would be held by an
ordinary and prudent man in the same circumstances as the defendant.

“Deadly force” means force that is intended or known by the
person using it to cause, or in the manner of its use or intended use is
capable of causing, death or serious bodily injury.

The application paragraph of self-defense in the jury charge states:

If you have found that the State has proved, beyond a reasonable
doubt, that EDWIN THOMAS BATY, on or about the 1st day of May
2022 committed all of the elements of the offenses of either Capital
Murder or Murder as set out above, you will nevertheless acquit the
defendant on the basis of self-defense unless you find that the State has
proved beyond a reasonable doubt one of the following:

X. The defendant did not believe his conduct was immediately
necessary to protect himself against Christopher Aaron Jorgensen’s use
of unlawful deadly force; or
Y. The defendant’s belief was not reasonable; or

35
Z. The defendant provoked Christopher Aaron Jorgensen’s use of
unlawful deadly force.

If you find beyond a reasonable doubt that the State has proven
any of the above, and you also find beyond a reasonable doubt that the
defendant committed all of the elements of either Capital Murder or the
lesser-included offense Murder as set out above, you will find the
defendant guilty of either Capital Murder or the lesser-included offense
of Capital [sic] Murder, as appropriate.

If you find that the State has failed to prove, beyond a reasonable
doubt, at least one of the elements X, Y, or Z listed above, or if you have
a reasonable doubt thereof, you must find for the defendant on the issue
of self-defense, and find the defendant “not guilty” of Capital Murder
and the lesser included felony offense of Murder.

If you all agree the State has proved, beyond a reasonable doubt,
each of the elements of either Capital Murder or the lesser-included
felony offense of Murder, and you also believe, beyond a reasonable
doubt, that the defendant did not act in self-defense, you must find
against the defendant on the issue of self-defense, and find the
defendant “guilty” of the appropriate offense.

The State acknowledges that the jury charge omitted the language of

“attempted” in one sentence of the application paragraph but argues that this

omission, if read without the entire context of the jury charge, actually increased the

burden on the State. The State points out that self-defense is defined throughout the

jury charge with the victim’s “use or attempted use” of deadly force, and thus the

jury was given the proper definition of self-defense.

In criminal cases, the trial court is required to submit a written charge

distinctly setting forth the law applicable to the case. Tex. Code Crim. Proc. Ann.

art. 36.14; Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim. App. 2007). Although
36
the trial court must submit a charge setting forth the law applicable to the case, article

36.14 does not impose a duty on trial courts to sua sponte instruct the jury on

unrequested defensive issues. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App.

1998). “An unrequested defensive issue is not law applicable to the case.” Taylor v.

State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011).

The penal code states that a person is justified in using force against another

when and to the degree he reasonably believes the force is immediately necessary to

protect himself. Tex. Penal Code Ann. § 9.31(a). Deadly force may be used to defend

oneself if he “reasonably believes the deadly force is immediately necessary[]” to

protect himself from the use or attempted use of unlawful deadly force. Id. §

9.32(a)(2)(A). The penal code defines a “reasonable belief” as one that would be

held by an ordinary and prudent man in the same circumstances as the actor. Id. §

1.07(a)(42).

Texas courts have held that when a defendant claims self-defense, his rights

are fully preserved when a jury charge (1) states that a defendant’s conduct is

justified if he reasonably believed that the deceased was using or attempting to use

unlawful deadly force against the defendant, and (2) correctly defines “reasonable

belief.” Bundy v. State, 280 S.W.3d 425, 430 (Tex. App.—Fort Worth 2009, pet.

ref’d) (citing Valentine v. State, 587 S.W.2d 399, 401 (Tex. Crim. App. [Panel Op.]

1979)). Furthermore, the Texas Court of Criminal Appeals has held that if the

37
instruction is not derived from the penal code, it is not “applicable law” for purposes

of the charge under article 36.14 of the code of criminal procedure. See Walters, 247

S.W.3d at 214.

Here, in accordance with the penal code, the trial court’s charge instructed the

jury: “you are instructed that a person is justified in using force against another when

and to the degree he reasonably believes the force is immediately necessary to

protect himself against one or more person’s use or attempted use of unlawful force.”

See Tex. Penal Code Ann. §§ 9.31(a), 9.32(a)(2)(A). Also, in accordance with the

penal code, the charge defined “reasonable belief” as “a belief that would be held by

an ordinary and prudent man in the same circumstances.” See id. § 1.07(a)(42).

While the jury charge omitted the language of “attempted use” in one sentence in

the application paragraph, the trial court’s instructions tracked the statute’s

definitions regarding self-defense, deadly force, and reasonable belief. See Bundy,

280 S.W.3d at 430-431. Under these circumstances, the trial court properly

instructed the jury on the issue of self-defense, and the jury charge was not

erroneous. See Walters, 247 S.W.3d at 214; Valentine, 587 S.W.2d at 401; see also

Tex. Penal Code Ann. §§ 1.07(a)(42), 9.31(a), 9.32(a)(2)(A).

Even if we assume that Baty’s trial counsel asked for an instruction on

“attempted use” in the application portion of the jury charge on self-defense, the

error would be harmless. There is no evidence at trial that shows Jorgensen was

38
attempting to use deadly force by charging Baty. Deadly force requires some type of

force that is “capable of causing death or serious bodily injury.” Rather, the evidence

showed that Jorgensen acted aggressively but was unarmed when he followed Baty

into his house; such actions constitute the use or attempted use of force, not deadly

force. Without evidence Jorgensen was attempting to use deadly force, Baty cannot

show he suffered any harm by the omission of those words from the jury charge, and

his claim of ineffective assistance of counsel fails.

Provocation Instruction

Baty also complains about the “provocation” instruction in the self-defense

portion of the jury charge. On the one hand, Baty seems to complain that the jury

charge does not define provocation and that the jury should have been given the

proper definition of provocation. On the other hand, Baty complains that the jury

should not have been instructed on provocation because there was no evidence of

provocation.

“A charge on provocation is required when there is sufficient evidence (1) that

the defendant did some act or used some words which provoked the attack on him,

(2) that such act or words were reasonably calculated to provoke the attack, and (3)

that 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 other.” Smith v. State,

965 S.W.2d 509, 513 (Tex. Crim. App. 1998). “An instruction on provocation should

39
only be given when there is evidence from which a rational jury could find every

element of provocation beyond a reasonable doubt.” Id. at 514.

Here, the instruction on provocation was most likely surplus. “When the

application portion of the jury charge correctly tracks the indictment, the error of

giving surplus law in the abstract portion of the charge is not reversible.” Manrrique

v. State, No. 02-19-00458-CR, 2021 Tex. App. LEXIS 7682, at *28 (Tex. App.—

Fort Worth Sept. 16, 2021, no pet.) (mem. op., not designated for publication). We

conclude that the inclusion of the challenged instruction, even if erroneous, did not

cause harm to Baty. Thus, there is no reversible error and Baty cannot show harm

under the second prong of Strickland.

Having determined that Baty’s claims of ineffective assistance of counsel fail

the Strickland test, we overrule Baty’s first issue.

Issue Two: Illegal Sentence in the Judgment

In his second issue, Baty complains that the judgment contains an illegal

sentence. The judgment recites that Baty was convicted for the offense of capital

murder by terroristic threat/other felony and assessed his punishment as “life with

the possibility of parole.” Texas Penal Code section 12.31(a)(2) states:

(a) An individual adjudged guilty of a capital felony in a case in which
the state seeks the death penalty shall be punished by imprisonment in
the Texas Department of Criminal Justice for life without parole or by
death. An individual adjudged guilty of a capital felony in a case in
which the state does not seek the death penalty shall be punished by
imprisonment in the Texas Department of Criminal Justice for:
40
...

(2) life without parole, if the individual committed the offense when 18
years of age or older.

Tex. Penal Code Ann. § 12.31(a)(2). When the sentence set out in the judgment

conflicts with the oral pronouncement, the oral pronouncement controls. Taylor v.

State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). Here, the jury found Baty guilty

of capital murder. As required under the Texas Penal Code, the jury sentenced Baty

to life in prison without the possibility of parole, and the trial court orally pronounced

this sentence. The remedy is to reform the written judgment to conform to the

sentence that was orally pronounced. Thompson v. State, 108 S.W.3d 287, 290 (Tex.

Crim. App. 2003). Therefore, the judgment should be reformed and modified to

reflect that Baty was sentenced to life in prison without the possibility of parole.

Conclusion

Having overruled all of Baty’s issues, we affirm the trial court’s judgment as

modified.

AFFIRMED AS MODIFIED.

KENT CHAMBERS
Justice
Submitted on January 29, 2026
Opinion Delivered May 27, 2026
Do Not Publish

Before Johnson, Wright and Chambers, JJ.

41