Percy Semien v. the State of Texas

Opinion issued September 16, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00653-CR
———————————
PERCY SEMIEN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1681014

MEMORANDUM OPINION

Appellant Percy Semien was convicted of murder and sentenced to sixty-five

years’ imprisonment. In five issues, Semien challenges his conviction. We affirm.

I. Background

Semien shot Jaden LaCour at a Houston Citgo station late in the evening on

June 14, 2020. That day, Semien and Bobby Blake Okoro attended a graduation
party for Felix Ugorji. Evidence1 shows that from around 9:00 p.m. to 11:00 p.m.

that evening, Semien’s, Felix’s, and Okoro’s phones were in an area consistent with

the Felix residence.

At 11:40 p.m., Semien’s phone made a forty-second call to Javonte Vining’s

phone. At the time, Semien’s phone and Okoro’s phone were in an area consistent

with the Citgo station, and Javonte’s phone was in an area consistent with LaCour’s

residence.

At 11:48 p.m., Semien’s phone made a twenty-two-second call to Javonte’s

phone; Javonte’s phone was now nearer to the Citgo station.

At 11:50 p.m., Javonte’s phone made a twenty-two-second call to Semien’s

phone; both men’s phones were then in the area consistent with the Citgo station,

and it appears Javonte’s phone made the call while he and LaCour were parked by

the gas pumps at the station.

Per surveillance video from the Citgo station (which was seven minutes

slower than the actual time), at around 11:51 p.m., LaCour exited Javonte’s vehicle

and Semien and Okoro walked up. Okoro stayed behind the vehicle while Semien

spoke with LaCour by the side of the vehicle. After speaking for around fifty

1
Using cell phone usage and location data, police were able to create a chronology
and mapping of events that occurred on June 14, 2020, which was presented to the
jury via a demonstrative slideshow.

2
seconds, LaCour appears to raise a hand, and Semien began running away with

LaCour lunging his direction. While he was starting to run away, Semien fired a

pistol at LaCour. A testifying police officer described these events: “It appears Mr.

LaCour raised his hand up as if he was handing something off as the second

individual [Semien] was taking it from him. . . . The second individual is discharging

a firearm in the direction of Mr. LaCour.”

The video shows that, after Semien and Okoro ran away, LaCour took a few

steps and went down to the ground. The police officer testified that a still picture

taken from the surveillance video shows LaCour on the ground, and both of his hands

were on the ground with nothing in them. It appears LaCour then reached for his

pocket while lying down.

Evidence shows that, after the shooting, at around 12:44 a.m. on June 15,

2020, Semien’s phone and Okoro’s phone were at an area consistent with the Semien

residence.

Police officers were dispatched to the scene shortly after the shooting and

found LaCour lying on the ground with other men trying to help him. Officers found

a black and silver pistol on the ground next to LaCour, within the reach of his right

hand. Officers also collected over $2,000 in cash belonging to LaCour.

The pistol had a sixteen-round-capacity magazine with thirteen rounds in it

and one round in the pistol’s chamber. Three cartridge casings were found at the

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scene and determined to have been fired from the same gun, which was not the pistol

found next to LaCour.

LaCour was declared deceased on June 15, 2020, dying from his gunshot

injuries. LaCour’s autopsy revealed he had sustained two gunshot wounds, with one

bullet entering through his stomach and exiting his back and the other bullet going

through his right thigh.

Through their investigation, which included viewing the Citgo station

surveillance video and speaking with witnesses, police developed Semien as a

suspect. On September 6, 2020, a police investigator Mirandized and interviewed

Semien. During the interview, Semien claimed to not remember much, saying he

did not recall going to Ugorji’s graduation party, seeing Okoro in June 2020, or

going to the Citgo station. When asked why he shot LaCour, Semien denied

shooting him and repeatedly denied being there, even when shown proof that he had

been there, told others had identified him as being there, and informed he had been

charged with murder.

Later that day, Semien made a call from jail during which he said, “I didn’t

have nothing to do with that crime. Didn’t have nothing to do with that murder at

all in no type of way possible.”

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As discussed in more detail below, Okoro testified at trial that he and Semien

were approached by a stranger holding a gun at the Citgo station, and Semien shot

the stranger in self-defense and to save Okoro.

During closing, Semien’s counsel argued that the State did not meet its burden

to disprove beyond a reasonable doubt self-defense or defense of another. The jury

convicted Semien of murder and sentenced him to sixty-five years’ imprisonment.

Semien now appeals.

II. Self-Defense and Defense of a Third Person

In his first and second issues, Semien contends that the evidence is legally

insufficient to support the jury’s rejection of Semien having acted in self-defense

and defense of a third person.

A. Standard of review and applicable law

Evidence is legally sufficient to support a conviction if “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.” Dunham v. State, 666 S.W.3d 477, 482 (Tex. Crim. App. 2023). In

conducting a legal-sufficiency review, we consider the evidence in the light most

favorable to the verdict without substituting our judgment for that of the jury.

McPherson v. State, 677 S.W.3d 663, 664 (Tex. Crim. App. 2023); Dunham, 666

S.W.3d at 482. The jury is the sole judge of the credibility and weight to be attached

to witnesses’ testimony. Dunham, 666 S.W.3d at 482. “The jury may reasonably

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infer facts from the evidence presented, credit the witnesses it chooses, disbelieve

any or all the evidence or testimony proffered, and weigh the evidence as it sees fit.”

Mottin v. State, 634 S.W.3d 761, 765 (Tex. App.—Houston [1st Dist.] 2020, pet.

ref’d).

When the defendant raises self-defense or defense of a third person, he bears

the burden to produce evidence supporting the defense, but the State bears the burden

of persuasion to disprove the raised issues. Braughton v. State, 569 S.W.3d 592,

608 (Tex. Crim. App. 2018) (“[T]he State’s burden of persuasion ‘is not one that

requires the production of evidence; rather it requires only that the State prove its

case beyond a reasonable doubt.’” (citation omitted)). Thus, the State must both

prove the essential elements of the offense beyond a reasonable doubt and persuade

the jury that the defendant did not act in self-defense or defense of a third person

beyond a reasonable doubt. Id. at 609; Rankin v. State, 617 S.W.3d 169, 181–82

(Tex. App.—Houston [1st Dist.] 2020, pet. ref’d).

The jury charge provided two theories under which the jury could convict

Semien of the offense of murder: (1) he intentionally or knowingly caused LaCour’s

death by shooting him with a deadly weapon, a firearm; or (2) he intentionally caused

serious bodily injury and intentionally or knowingly committed an act clearly

dangerous to human life by shooting LaCour with a deadly weapon, a firearm,

causing LaCour’s death. See TEX. PENAL CODE § 19.02(b)(1)–(2).

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The charge also submitted self-defense and defense of a third person.

“[D]eadly force used in self-defense or in defense of another is a defense to

prosecution for murder if that use of force is ‘justified.’” Braughton, 569 S.W.3d at

606 (quoting TEX. PENAL CODE § 9.02). Under the Penal Code, “a person is justified

in using force against another when and to the degree the actor reasonably believes

the force is immediately necessary to protect the actor against the other’s use or

attempted use of unlawful force.” TEX. PENAL CODE § 9.31(a). A person is justified

in using deadly force if the actor would be justified in using force 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). Similarly, a person is justified in using

deadly force against another to protect a third person if the actor would be justified

in using deadly force under section 9.32 and “the actor reasonably believes that his

intervention is immediately necessary to protect the third person.” Id. § 9.33.

B. Analysis

Semien argues the evidence clearly establishes that he acted in self-defense

and defense of a third person because of Okoro’s eyewitness testimony. Okoro

testified that, while his group was dropping people off after the graduation party,

they stopped at the Citgo station because he wanted to buy “some cigarillos.”

According to Okoro, while he and Semien were walking toward the station’s store,

7
a stranger (identified as LaCour at trial) approached them, pulled out a tan-colored

gun, and told Okoro to step back. Okoro testified he did not know the person, and

it did not appear to him that Semien knew them either. Okoro stated the stranger

spoke to Semien for two or three minutes, at some point, pulling out money. Per

Okoro, the stranger had his gun drawn the entire interaction. Okoro testified that the

stranger then lunged toward Semien, and Semien shot the stranger in self-defense,

also saving Okoro’s life. Okoro testified he and Semien ran away and had not seen

or spoken to each other since. Okoro denied knowing or ever communicating with

Javonte. Okoro also acknowledged that when he spoke with officers in June 2020,

he did not tell them the full story for how the shooting occurred because he was

scared, but did say the stranger pulled out a gun and that he feared for his life.

Semien contends Okoro’s account of the shooting was corroborated by the

surveillance video and officer testimony that the video showed LaCour was moving

toward Semien at the time of the shooting. According to Semien, the video shows

Okoro stopping as they walked toward LaCour and then start backing up and shows

Semien running away with LaCour following at the time of the shooting. Semien

also argues that the pistol found within the reach of LaCour’s right hand already had

a round chambered, meaning it was ready to fire and supporting that LaCour was the

aggressor. For the following reasons, we conclude the evidence supports the jury’s

rejection of Semien’s defensive theories.

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The surveillance video shows Semien and Okoro approached the vehicle next

to which LaCour was standing. Semien walked directly up to LaCour, and Okoro

stopped behind the vehicle. Nothing in the way the men moved indicates either

moved backward, hesitated, or were startled, in response to LaCour drawing a gun

on them. Okoro did take two small steps backward at one point, but those appear to

be because he was casually moving back and forth instead of standing still, not

because of something LaCour did. Okoro appeared relaxed during the fifty seconds

that Semien and LaCour spoke.

Additionally, the surveillance video negates Okoro’s account that a random

stranger approached the men at the Citgo station. To the contrary, the video shows

Semien and Okoro purposefully walking toward LaCour to speak with him. And the

police investigation proved that LaCour was not a random stranger but someone

riding with Javonte, whose phone had called, or been called by, Semien’s phone

three times shortly before the meeting, supporting a finding that the meeting was

planned by the men.

Another inconsistency was that Okoro testified LaCour pulled out a tan-

colored gun, but the evidence proved LaCour’s pistol was black and silver. And the

State’s firearm expert testified that, while a round in the pistol’s chamber meant

someone had prepared the pistol to shoot, it was unknown when the round was

9
chambered, meaning it could have occurred long before the meeting or even when

LaCour was on the ground.

The video further shows that, after LaCour and Semien spoke for around fifty

seconds, LaCour appears to raise a hand, and Semien then started running away with

LaCour lunging in his direction. While he was starting to run away, Semien fired a

pistol at LaCour. LaCour quickly dropped to the ground, and the video shows that

he did not have anything in his hands. LaCour then appeared to reach into his pocket,

and police later found the pistol near LaCour’s right hand. The pistol had blood on

it, and DNA testing of the pistol grip provided “very strong support” that LaCour

was a contributor to the DNA. Accordingly, this evidence supports a finding that

LaCour did not pull out the pistol until after he was shot.

Semien argues that the quality and angles of the video do not support the

foregoing description of events but support that LaCour started lunging and

following Semien immediately before the shooting. We agree that the quality and

angles of the video do not give a perfect, unobstructed view of what transpired. And

we agree the video does show that LaCour was moving in Semien’s direction at the

time of the shooting. However, the video is sufficient to support that LaCour did

not have a gun in his hands when he dropped to the ground after the shooting and

that he reached for something in his pocket. Circumstantial evidence supports that

10
he was reaching for his pistol after the shooting because it was found next to his right

hand with his blood on it.

Semien’s interview with the police investigator also provided reason for the

jury to reject his defensive theories. Despite the investigator showing Semien a

picture of himself at the crime scene, Semien obstinately denied being there. The

jury could have reasonably believed that, if Semien fired the shots to defend himself

and Okoro against an aggressor who pulled a gun on them, he would have told the

investigator that account instead of repeatedly denying any involvement. See Dugar

v. State, No. 14-17-00059-CR, 2018 WL 1611645, at *4 (Tex. App.—Houston [14th

Dist.] Apr. 3, 2018, no pet.) (mem. op., not designated for publication) (“The jury

also had reason to doubt appellant’s claim of self-defense because he did not report

the shooting to police and, in his custodial interrogation, he initially denied that he

had shot a gun.”). Even later that day, when on a call from jail, Semien continued

to deny any involvement instead of explaining he acted defensively.2

In sum, the jury could have reasonably rejected Semien’s defensive theories

because evidence contradicted material parts of Okoro’s story and supported that

Semien shot LaCour when he was unarmed. See Gonzales v. State, No. 01-23-

2
Semien challenges the believability of this evidence, noting that the officer who
proved up the jail call because he recognized Semien’s voice on the call also
admitted that inmates sometimes use each other’s “SPN numbers” and that the caller
identified himself as “P. LO.” These were credibility issues for the jury to resolve.
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00544-CR, 2025 WL 1958112, at *3 (Tex. App.—Houston [1st Dist.] July 17, 2025,

no pet. h.) (mem. op., not designated for publication) (“We agree with the State that

the jury, in its role as factfinder, could have rationally rejected the appellant’s self-

defense claim based on credibility.”); Coons v. State, No. 01-16-00201-CR, 2017

WL 1326079, at *4 (Tex. App.—Houston [1st Dist.] Apr. 11, 2017, no pet.) (mem.

op., not designated for publication) (“The jury’s decision to reject appellant’s

defensive claim ultimately hinged on the credibility of the witnesses.”). The

evidence is legally sufficient to support the jury’s finding beyond a reasonable doubt

that Semien murdered LaCour and its rejection of self-defense and defense of

another beyond a reasonable doubt. We overrule Semien’s first and second issues.

III. Closing Argument

In his third and fourth issues, Semien contends the trial court abused its

discretion, and deprived him of due process, when it failed to grant his request for a

mistrial based on a statement made during the State’s closing argument.

A. Standard of review and applicable law

A mistrial is the trial court’s remedy for improper conduct that is “so

prejudicial that expenditure of further time and expense would be wasteful and

futile.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quotation

omitted). It is a remedy appropriate only for a narrow class of highly prejudicial and

incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). We

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review a trial court’s decision to deny a motion for mistrial for abuse of discretion.

Hawkins, 135 S.W.3d at 77. When determining whether the trial court abused its

discretion in denying a mistrial, we balance the three Mosley factors: (1) the

prejudicial effect; (2) the curative measures taken; and (3) the strength of the

evidence supporting the conviction. See Archie v. State, 340 S.W.3d 734, 739 (Tex.

Crim. App. 2011) (extending factors from Mosley v. State, 983 S.W.2d 249 (Tex.

Crim. App. 1998), to evaluating improper jury argument that violated defendant’s

constitutional rights).

B. Analysis

Semien complains about the State’s following rebuttal argument:

Now, the only evidence that we have heard that would support self-
defense, and remember the Defendant has to be justified in using self-
defense in order to be able to use defense of a third person, and the only
thing we have heard is [Okoro’s] statement that [Semien] saved his life
that day. [Okoro] is lying, because after three years he now
mysteriously has to say that on the stand? He talked to officers after
this happened. He told you that. He cooperated. Deputy Davis told
you that. And he told you he didn’t tell the police these things then.
But after three years he’s created this ulterior reality in his mind,
because he’s scared of the police, because he’s scared of the Defendant.
He didn’t want to be here, because he’s scared of the Defendant.
(Emphasis added.) After the State made this argument, Semien objected “Outside

the record,” which the trial court sustained. Semien requested an instruction to

disregard, and the trial court instructed the jury to disregard “the last statement made

by the Prosecutor.” The trial court then denied Semien’s request for a mistrial.

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Semien argues the State’s remark that Okoro created a self-defense, defense-

of-another narrative because he feared Semien “served to gut” the defenses and

deprive him of due process. We disagree. Even if it were improper, which we need

not decide, the State’s argument that Okoro fabricated his story because he feared

Semien was a relatively minor point compared to the State’s other arguments based

on evidence that Semien undisputedly shot and killed LaCour but then lied to police

about not being involved, that Okoro did not tell police Semien had shot LaCour

defensively, and that parts of Okoro’s story were negated by the evidence,

particularly that they were approached by a random stranger at the Citgo station.

Moreover, the trial court promptly instructed the jury to disregard the objected-to

argument, which we presume the jury did. See Griffin v. State, 571 S.W.3d 404, 417

(Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (“[W]e generally presume the jury

followed the trial court’s instructions [and] a mistrial is required only in those

‘extreme circumstances’ where the prejudice is ‘incurable.’” (citation omitted)).

The objected-to argument was not so egregious to be incurable by the

instruction to disregard and did not cause the jury to convict Semien when it

otherwise would have acquitted him, depriving him of a fair trial. Accordingly, the

14
trial court did not abuse its discretion by denying Semien’s request for the

extraordinary remedy of a mistral.3 We overrule Semien’s third and fourth issues.

IV. Photographs and Video

In his fifth issue, Semien contends the trial court abused its discretion when it

admitted over his Texas Rule of Evidence 403 objections autopsy photographs and

video of the police officer performing CPR on LaCour.

A. Standard of review and applicable law

We review a trial court’s ruling on the admission of evidence for an abuse of

discretion. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). This

deferential standard requires that we uphold a trial court’s admissibility decision

when that decision is within the zone of reasonable disagreement. Fowler v. State,

544 S.W.3d 844, 848 (Tex. Crim. App. 2018). A trial court judge is given

considerable latitude on evidentiary rulings. Id.

Generally, relevant evidence is admissible. TEX. R. EVID. 402. In pertinent

part, under Rule 403, the “court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of . . . unfair prejudice . . . or needlessly

presenting cumulative evidence.” TEX. R. EVID. 403. “Rule 403 favors the

3
Moreover, even if we reviewed this issue under the harm analysis for constitutional
error (which Semien argues applies notwithstanding that he made no constitutional
objection in the trial court) instead of under the Mosley factors, we would conclude
beyond a reasonable doubt that the State’s argument did not contribute to Semien’s
conviction. See TEX. R. APP. P. 44.2(a).
15
admission of relevant evidence and carries a presumption that relevant evidence will

be more probative than prejudicial.” Davis v. State, 329 S.W.3d 798, 806 (Tex.

Crim. App. 2010).

In determining the prejudicial effect of photographs, a court should consider

the number, size, color, and detail of the photographs, whether they are gruesome

and show nudity, and whether the photographed body had been altered since the

crime to the appellant’s detriment. See Reese v. State, 33 S.W.3d 238, 241 (Tex.

Crim. App. 2000). Crime scene photographs are almost always relevant because

they depict the reality of the offense and may show the manner of its occurrence.

Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). “If a

photograph is competent, material and relevant to the issue on trial, it is not rendered

inadmissible merely because it is gruesome or might tend to arouse the passions of

the jury, unless it is offered solely to inflame the minds of the jury.” Erazo v. State,

144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (quotation omitted). “The

considerations for determining the admissibility of audiovisual recordings under

Texas Rule of Evidence 403 are generally the same as those for determining the

admissibility of photographs.” Williams v. State, No. AP-77,053, 2017 WL

4946865, at *27 (Tex. Crim. App. Nov. 1, 2017) (not designated for publication).

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B. Analysis

Semien first complains about six photographs that show the entrance and exit

gunshot wounds on LaCour’s body. Semien objected to these photographs under

Rule 403, arguing that any probative value of the photographs was substantially

outweighed by the danger of (1) unfair prejudice because of their graphic nature, and

(2) needlessly presenting cumulative evidence because a photograph of LaCour’s

body and a diagram of his gunshot wounds were already admitted into evidence.

We hold that the trial court did not abuse its discretion in overruling Semien’s

objection. The photographs are not unduly graphic but reflect the gunshot wounds

on LaCour’s body with little blood and in a manner not reflected on the other

photograph and diagram.4 The trial court reasonably could have concluded these

photographs aided the jury in understanding precisely where and how LaCour was

shot, an important fact in this close-range shooting case in which Semien is claiming

self-defense. See Heath v. State, No. 01-19-00794-CR, 2021 WL 4095243, at *7

(Tex. App.—Houston [1st Dist.] Sept. 9, 2021, pet. ref’d) (mem. op., not designated

for publication) (“The photographs were probative to show the extent of the injuries

Heath inflicted on the complainants and the state of the bodies when paramedics

4
On appeal, Semien complains that two of the photographs show LaCour’s buttocks
and a portion of his pubic area. He did not object on this specific basis in the trial
court or ask to have the nudity redacted or blurred. Regardless, these areas of
LaCour’s body are seen simply because of where the bullets struck him and are not
depicted in a manner that would inflame or upset the average juror.
17
encountered them.”). Therefore, the probative value of the photographs was not

substantially outweighed by the danger of unfair prejudice or needlessly presenting

cumulative evidence.

Semien next complains about the admission of a responding police officer’s

soundless body-camera video, showing him performing CPR on LaCour shortly

after the shooting, which resulted in LaCour beginning labored breathing. Later in

the video, hospital staff is seen working to save LaCour but with little ability to see

LaCour in the video. At trial, Semien objected to this video under Rule 403 due to

unfair prejudice because it shows LaCour dying and being cumulative of the autopsy

photographs. The State responded that the video was important in the chain of events

leading to LaCour’s death.

We again hold that the trial court did not abuse its discretion in overruling

Semien’s objection. While the video does show LaCour, with his eyes rolled

backward, receiving CPR, it does not depict gruesome violence and shows the scene

as left by Semien after he shot LaCour and as the police found it. See Sonnier v.

State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (“[W]hen the power of the

visible evidence emanates from nothing more than what the defendant has himself

done we cannot hold that the trial court has abused its discretion merely because it

admitted the evidence.”); Luna v. State, No. 05-17-01188-CR, 2018 WL 3490875,

at *2 (Tex. App.—Dallas July 20, 2018, no pet.) (mem. op., not designated for

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publication) (concluding trial court did not abuse discretion admitting video of dying

shooting victim receiving CPR; “the video does nothing more than reflect the

gruesomeness of the offense, which is not a sufficient reason for excluding

evidence”). Moreover, there is little risk of unfair prejudice arising from the video

because it is undisputed Semien shot LaCour, and LaCour receiving CPR and later

dying from his injuries does not affect whether Semien shot him in self-defense or

not, i.e., the video did make it more likely the jury would reject Semien’s defenses.

See West v. State, No. 01-18-00228-CR, 2019 WL 2750592, at *3 (Tex. App.—

Houston [1st Dist.] July 2, 2019, no pet.) (mem. op., not designated for publication)

(rejecting Rule 403 argument regarding audio of dying victim; “the jury was well

aware that a murder had occurred and that nearby witnesses attempted life-saving

efforts”). The probative value of the video was not substantially outweighed by the

danger of unfair prejudice or needlessly presenting cumulative evidence.

We overrule Semien’s fifth issue.

V. Conclusion

We affirm the judgment of the trial court.

Andrew Johnson
Justice

Panel consists of Chief Justice Adams and Justices Caughey and Johnson.

Do not publish. TEX. R. APP. P. 47.2(b).

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