Jirou Zachere Jr. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-24-00018-CR
________________

JIROU ZACHERE JR., Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. F21-36363
________________________________________________________________________

MEMORANDUM OPINION

A jury found Jirou Zachere Jr. (“Zachere” or “Appellant”) guilty of the murder

of Carl 1 and assessed his punishment at seventy years of confinement. See Tex. Pen.

Code Ann. § 19.02(b)(1), (c). After reviewing the record and briefs of counsel, we

1
We use pseudonyms for the name of the victims and their family members
to protect their rights to privacy. See Tex. Const. art. I, § 30(a)(1) (granting crime
victims “the right to be treated with fairness and with respect for the victim’s dignity
and privacy throughout the criminal justice process[.]”).
1
conclude that the trial court did not err by instructing the jury on parole law, refusing

to include instructions on the lesser-included offense of manslaughter or “sudden

passion,” or failing to suppress the video of Appellant’s recorded custodial

interrogation. For the reasons set forth below, we affirm the judgment of the trial

court.

Background

We limit our discussion to the facts necessary for the disposition of the case.

Carl and his girlfriend, Karen, went out on the evening of July 10, 2020, and returned

to their apartment in Beaumont, Texas. Shortly after midnight, both were lying in

bed when bullets were shot through the bedroom window striking Carl and Karen.

Carl was hit in the shoulder area with the bullet traveling down his body, and Karen

was hit in the foot. Carl died at the scene. The shooter left the scene and was not

located that night.

Unbeknownst to Carl and Karen, Zachere’s ex-girlfriend Amy, who was the

mother of Zachere’s child, was living in the apartment above Carl and Karen on the

morning of the July 11, 2020 shooting. Zachere shot into Carl’s apartment that

morning because he thought Amy and her new boyfriend were living in the

downstairs apartment at that time.

On October 25, 2020, the police were called again in reference to two

individuals engaged in a shootout at the same apartment complex. The shooting

2
occurred near Carl’s apartment where he was killed. Shell casings recovered on the

evening of October 25 matched the casings collected from Carl’s murder of July 11.

When confronted by law enforcement, Zachere admitted he shot into Amy’s

apartment on October 25, and he told police he shot into the wrong apartment on

July 11. Zachere said he mistakenly thought Amy was living in Carl’s apartment.

Zachere was arrested for Carl’s murder, the aggravated assault of Karen, and for

shooting Amy’s boyfriend. This trial only involved Carl’s murder, and during his

opening statement, counsel for Zachere admitted that Zachere shot into Carl’s

apartment by mistake and did not intend to kill him.

The Standard of Review

The Motion to Suppress

When reviewing a trial court’s ruling on a motion to suppress evidence we

apply a bifurcated standard of review that gives almost total deference to the trial

court’s determination of historical facts that the record supports and considers de

novo the application of the law to the facts. State v. Pettit, 713 S.W.3d 834, 839

(Tex. Crim. App. 2025). We will defer to the trial court’s findings unless they are

unsupported by the record, and we will view the evidence in the light most favorable

to the trial court’s ruling. Id. We will reverse the trial court’s ruling on a motion to

suppress only if it is arbitrary, unreasonable, or outside the zone of reasonable

disagreement. Id.

3
The Jury Charge on Guilt-Innocence and Punishment

We review a claim of alleged jury charge error using a two-step process in

which we examine (1) whether error existed in the charge, and (2) whether sufficient

harm resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738, 743

(Tex. Crim. App. 2005) (en banc). Where, as to the failure to include a lesser-

included charge on manslaughter, the defendant properly objected to the charge at

trial, jury charge error requires reversal if we find “some harm” to his rights. Id.

(citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). The Almanza standard requires

that an appellant show actual, and not theoretical, harm from jury instruction error.

Ngo, 175 S.W.3d at 750; see Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App.

2013); Hanks v. State, No. 09-23-00132-CR, 2024 Tex. App. LEXIS, at *34 (Tex.

App.—Beaumont Sept. 11, 2024, pet. ref’d) (mem. op., not designated for

publication).

The trial court’s denial of a request for a lesser-included offense instruction in

the jury charge is reviewed for an abuse of discretion. Chavez v. State, 666 S.W.3d

772, 776 (Tex. Crim. App. 2023). Whether a defendant is entitled to a lesser-

included offense instruction involves a two-part test. Id. “First, we compare the

statutory elements of the alleged lesser[-included] offense with the statutory

elements of the greater offense and any descriptive averments in the indictment.” Id.

4
If proof of the lesser-included offense is included within the proof of the greater

offense, the first step is satisfied, and we then determine whether there is evidence

from which a rational jury could find the defendant guilty of only the lesser offense.

Id.

Regarding the parole law instruction, when the defendant fails to object or

states in the trial court that he has no objection to the charge, we will not reverse for

jury charge error unless the record shows “egregious harm” to the defendant. See

State v. Ambrose, 487 S.W.3d 587, 595 (Tex. Crim. App. 2016) (“[U]npreserved

jury-charge error does not require a new trial, even when the error is complained of

in a motion for new trial, unless the error causes ‘egregious harm.’”).

Analysis

The Motion to Suppress

We first consider Appellant’s third issue, in which he claims the trial court

erred by failing to suppress his recorded statement. Approximately a week after

Carl’s murder, Detective Coffin was made aware that the 9mm pistol used in Carl’s

murder also fired the shells that were recovered from the crime scene on July 11.

Detective Coffin had Zachere, who was jailed on a misdemeanor case, transported

to the Beaumont Police Department (BPD) for a custodial interview.

Appellant’s custodial interview was played for the jury at trial over objection.

Appellant told officers that he had shot into the apartment and discarded the gun

5
directly after the shooting. He explained that he purchased the gun from Academy

in Port Arthur in June. Appellant told officers that the gun was his and he had not let

anyone else use it. He said he kept the gun on him all the time. Appellant told officers

that he never went back to get the gun.

Appellant explained to the detectives that he had issues with Amy because she

would not let him see his son. During the discussion, Appellant said he had anger

impulse struggles. He admitted that Amy reported him several times. When Amy

first moved, he did not know where she was living. Appellant said that by July, he

knew she lived in the complex, and by October 25, he discovered the exact apartment

where Amy and her boyfriend lived because he saw them go to the apartment one

day.

Detective Coffin then brought up the July shooting at the complex. Appellant

told him that Amy had left him, and he had wanted to see her, but she refused and

he “got mad.” He went to the apartment complex and heard something inside the

apartment that he thought she lived in and shot into the apartment. Appellant told

officers that he could not recall exactly when he learned that he had killed someone.

He later learned that he knew the person; it was someone he had gone to school with.

Appellant eventually admitted he hid the gun used in both shootings at his

grandmother’s house, and he told officers where to find the gun.

6
Detective Coffin testified that Appellant admitted what he did and where the

gun was located. Appellant attempted to negotiate a sentence with the detective.

Appellant admitted that he shot and killed Carl because he heard someone having

sex through an apartment window and got mad because he thought it was Amy with

her boyfriend. Appellant said he fired four shots into a window without really

knowing who was behind it.

At the ruling on the motion to suppress, the trial court made these

observations:

Sometime between the 18-, 19-minute mark, a little bit before that, the
detectives began talking about something else that -- from what they
started off talking about it, seemed like, and that’s when Mr. Zachere
said he didn’t want to talk anymore. They did not ask him any other
questions. They told him, in fact, not to talk. They said -- Detective
Coffin just gave a little more information to Mr. Zachere about what
they were -- what he was wanting to talk about then left the room, gave
him some time to visit -- I mean just sit -- not visit -- sit and think for a
minute, came back in the room, again, told him not to talk unless he
wanted to, asked him specifically if he wanted to, made him answer out
loud in the affirmative that he did want to continue talking, and Mr.
Zachere did, in fact, answer in the affirmative.

At the suppression hearing, counsel for Zachere argued that he was read his

Miranda warnings approximately eighteen minutes before he was questioned about

Carl’s murder and after discussing another case in which Zachere was involved.

Counsel’s argument at trial was that Zachere should have been given the Miranda

warnings again when the detective wanted to question him about Carl’s murder.

However, the State argued, and the trial court found, that re-reading the Miranda
7
warnings was not required under these circumstances. See McNinch v. State, No. 09-

12-00281-CR, 2013 Tex. App. LEXIS 13362, at **14-15 (Tex. App.—Beaumont

Oct. 30, 2013, no pet.) (mem. op., not designated for publication). Prior cases have

addressed the situation in which a suspect is warned about his Miranda rights, a

break in questioning occurs, and questioning resumes without the administration of

new Miranda warnings. See, e.g., Bible v. State, 162 S.W.3d 234, 241-42 (Tex.

Crim. App. 2005); Ex parte Bagley, 509 S.W.2d 332, 337-38 (Tex. Crim. App.

1974); Stallings v. State, No. 09-09-00200-CR, 2010 Tex. App. LEXIS 4443, at **2-

3 (Tex. App.—Beaumont June 9, 2010, pet. ref’d) (mem. op., not designated for

publication). If the totality of the circumstances indicates that the second interview

is essentially a continuation of the first, the Miranda warnings remain effective as to

statements made during the second interview. Dunn v. State, 721 S.W.2d 325, 338

(Tex. Crim. App. 1986), abrogated on other grounds by Creager v. State, 952

S.W.2d 852, 856 (Tex. Crim. App. 1997) (holding “rewarning is not required where

the interrogation is only a continuation about the same offense[]”); Stallings, 2010

Tex. App. LEXIS 4443, at **2-3. In making this determination, courts have

considered the following factors: (1) the passage of time; (2) whether the second

interrogation was conducted by a different person; (3) whether the interrogation

related to a different offense; and (4) whether the officer reminded defendant of his

earlier warnings. See Bible, 162 S.W.3d at 242.

8
In Ex parte Bagley, the defendant was taken from his jail cell, given Miranda

warnings, questioned, and returned to his cell. Ex parte Bagley, 509 S.W.2d at 335-

36. After questioning a co-defendant, Bagley was withdrawn from his cell, given a

verbal Miranda warning and questioned again. Id. at 336. The Court of Criminal

Appeals held that the second statement obtained from Bagley, hours after the first

interrogation, was admissible based upon the Miranda warnings given to Bagley six

to eight hours earlier. Id. at 337-38. For Zachere, similarly, 1) the passage of time

was only eighteen minutes from receiving the Miranda warnings; 2) the

interrogation regarding both offenses was conducted by the same officers; 3) though

the incidents were on different dates, they both involved Zachere shooting at what

he believed was Amy’s apartment; and 4) the trial court pointed out that the

interrogating officer reminded Zachere that he should only answer questions about

Carl’s shooting if he voluntarily wanted to—he was not being forced to answer. We

hold the trial court’s ruling on the motion to suppress was not arbitrary,

unreasonable, or outside the zone of reasonable disagreement. See Pettit, 713 S.W.3d

at 839.

On appeal, Zachere offers an alternative theory for suppression of his

confession claiming that his mental state affected his knowing and voluntary waiver

of his right to remain silent and refusal to answer questions about Carl’s murder.

However, this specific objection was not raised at the suppression hearing or at trial.

9
Zachere was required to preserve this complaint for appellate review by lodging a

timely objection and stating the specific legal basis for the objection. See Sartin v.

State, 680 S.W.3d 663, 667 (Tex. App.—Beaumont 2023, no pet.) (citing Tex. R.

App. P. 33.1(a)(1)). When an issue has not been preserved for appeal, an appellate

court should not address its merits. Id. (citing Ford v. State, 305 S.W.3d 530, 532

(Tex. Crim. App. 2009)). The Court of Criminal Appeals has explained that to

preserve a complaint for appellate review, an objection must state the grounds for

the ruling sought with sufficient specificity to make the trial court aware of the

complaint. Id.; Tex. R. App. P. 33.1(a). The complaining party bears the

responsibility of clearly conveying his particular complaint to the trial judge. See

Pena v. State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009). To avoid forfeiting

a complaint on appeal, the party must “‘let the trial judge know what he wants, why

he thinks he is entitled to it, and to do so clearly enough for the judge to understand

him at a time when the judge is in the proper position to do something about it.’” Id.

at 464 (quoting Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992)).

“This gives the trial judge and the opposing party an opportunity to correct the error.”

Id.; see also Mosley v. State, 666 S.W.3d 670, 676 (Tex. Crim. App. 2023).

Almost all error, even constitutional error, must be preserved by objection or

it is waived. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008);

Holland v. State, 802 S.W.2d 696, 700-01 (Tex. Crim. App. 1991); Briggs v. State,

10
789 S.W.2d 918, 924 (Tex. Crim. App. 1990). A defendant fails to preserve error

when the contention urged on appeal does not match the complaint made in the trial

court. Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009). In other

words, an objection stating one legal basis for an objection at trial may not be used

to support a different legal theory on appeal. See Heidelberg v. State, 144 S.W.3d

535, 537 (Tex. Crim. App. 2004). Zachere did not lodge an objection at trial that his

confession was involuntary because he was not mentally competent when he made

it and it is, thereby, waived. See id. We overrule issue three.

The Charge to the Jury on Guilt Innocence

At the guilt-innocence phase of the trial, Zachere requested the trial court to

instruct the jury on the lesser-included offense of manslaughter. A person commits

murder if he intentionally or knowingly causes the death of an individual. Tex. Pen.

Code Ann. § 19.02(b)(1). A person commits manslaughter if he recklessly causes

the death of an individual. Tex. Pen. Code Ann. § 19.04(a).

The State concedes that manslaughter is a lesser-included offense of murder.

See Cavazos v. State, 382 S.W.3d 377, 384-85 (Tex. Crim. App. 2012). Citing to

Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985) and Rousseau v. State,

855 S.W.2d 666, 672 (Tex. Crim. App. 1993), the court in Cavazos wrote that “we

must consider whether there was some evidence raised at trial from which a rational

jury could acquit Appellant of the greater offense of murder and convict him of the

11
lesser-included offense of manslaughter[]” stating “[t]here must be some affirmative

evidence that Appellant did not intend to cause serious bodily injury when he shot

the victim, and must be some affirmative evidence from which a rational juror could

infer that Appellant was aware of but consciously disregarded a substantial and

unjustifiable risk that death would occur as a result of his conduct.” Cavazos, 382

S.W.3d at 385 (emphasis added).

While Zachere testified in his own defense, saying that he was reckless when

he shot into the apartment window where Carl was in bed, the trial court determined

that his actions did not constitute evidence of recklessness. The trial judge noted that

Zachere admitted on the stand that he believed someone was in the apartment when

he shot into it, admitted he did not do it by accident, and that he intended to do it.

When the defendant properly objected to the charge at trial, jury charge error

requires reversal if we find “some harm” to his rights. Ngo, 175 S.W.3d at 743

(citations omitted). The Almanza standard requires that an appellant show actual

harm. Id. at 750. Our first inquiry is whether there is error in the charge given by the

trial court. Id. at 743.

The indictment charged Zachere with “intentionally and knowingly” causing

the death of Carl by shooting him with a firearm. “A person acts intentionally, or

with intent, with respect to the nature of his conduct or to a result of his conduct

when it is his conscious objective or desire to engage in the conduct or cause the

12
result.” Tex. Pen. Code Ann. § 6.03(a). “A person acts knowingly, or with

knowledge, with respect to the nature of his conduct or to circumstances surrounding

his conduct when he is aware of the nature of his conduct or that the circumstances

exist.” Id. § 6.03(b). “A person acts knowingly, or with knowledge, with respect to

a result of his conduct when he is aware that his conduct is reasonably certain to

cause the result.” Id. “A person acts recklessly. . . with respect to circumstances

surrounding his conduct or the result of his conduct when he is aware of but

consciously disregards a substantial and unjustifiable risk that the circumstances

exist or the result will occur.” Id. § 6.03(c). “The risk must be of such a nature and

degree that its disregard constitutes a gross deviation from the standard of care that

an ordinary person would exercise under all the circumstances as viewed from the

actor’s standpoint.” Id.

Since the State concedes that manslaughter is a lesser-included offense of

murder, we must decide whether there is some evidence from which the jury could

have rationally acquitted Zachere of the greater offense of murder while convicting

him of the lesser offense of manslaughter. See Chavez, 666 S.W.3d at 776. Amy

testified that in February 2019, Zachere threatened to kill her because she was not

with him and had allowed another man to be around his son. In May 2019, Zachere

assaulted Amy in her front yard, broke her phone, and yanked her shirt off while

tackling her to the ground. Later in 2019, Zachere broke her apartment door down

13
and ran off after Amy’s new boyfriend pulled a gun on Zachere and told him to

leave. By September 2020, Zachere had gone by her new apartment on several

occasions recorded on her “ring” doorbell camera. On one occasion, Zachere

punched her door and said, “I’ll shoot this b*tch up, bring me my son.” On another

occasion he attempted to break in while nobody was home.

Zachere’s aggressive behavior toward Amy and her new boyfriend resulted in

him shooting into Carl’s apartment on July 11, and Zachere admitted hearing people

who sounded like they were having sex. Learning that it was the wrong apartment,

Zachere located Amy’s apartment sometime in September. Further evidence of

intent to commit murder included the October 25 shooting of Amy’s boyfriend in

the parking lot of their apartment. Her boyfriend eventually died from complications

from the shooting. Zachere’s actions taken against Amy and her boyfriend serve to

support the State’s theory that Zachere acted intentionally and knowingly, with

planning and measured intent, to cause the death of Amy and her boyfriend by

shooting them. This evidence was offered to show Zachere’s state of mind when he

shot into the apartment where Carl lived because he thought Amy and her boyfriend

lived there. Recounting the evidence of Zachere’s actions, the trial court determined

that there was no more than a scintilla of evidence to support the theory that Zachere

was only acting recklessly, and not intentionally or knowingly, when he fired into

Carl’s apartment.

14
In his trial testimony and confession, Zachere said he was “frustrated,

aggravated[]” but responded, when asked, “I don’t know[]” why he fired the shot

through the window that killed Carl. He said he had no one to talk to about his

“problems.” He said, “I ain’t intentionally kill [Carl].” He went on to say, “I guess

smoke too much marijuana had me paranoid, you know.” He said he attended Wiley

College, in Marshall, Texas, for two years majoring in physical education. He left

the college and planned on changing his major to business management but “just got

caught up in all this.” He said after he left college, he started a job as a correctional

officer and trained in Brazoria County during 2020.

Zachere testified that he was frustrated during 2020 in dealing with Amy

because he wanted to see his child and got angry, punched her front door on one

occasion, and damaged her ring doorbell camera on another. He said on the night he

shot into Carl’s apartment in July, “I was acting irrational, outrageous, drastic, not

logically thinking what -- who is it or what may happen, even though I know you

shoot a gun something bad can happen.” He went on to say, when asked the reasons

that he shot into the window of Carl’s apartment, “I ain’t have no intent on harming

anybody[]” and “I just pulled the trigger out of frustration, sir.” Zachere was

prompted by his own attorney, through leading questions, to say his actions were

reckless but he actually testified his actions were “senseless.” His attorney then

15
corrected him to prompt him to say his “behavior” was “very reckless[]” that night

to which he responded “[y]es, sir.”

On cross-examination by the State, Zachere claimed he wasn’t stalking Amy

and he had no idea why he was outside of what he thought was her apartment at 1:00

a.m. Zachere admitted that he knew by July 11 that Amy lived at that apartment

complex, in that particular building, but then he said he didn’t know why he went

there saying, “I didn’t think nothing, sir.” The State asked Zachere “[w]hat were you

doing outside that window[,]” and Zachere stated, “I don’t know, sir.” When the

State challenged Zachere that shooting through the window four times on purpose

had to be intentional and not just reckless, Zachere said he didn’t purposely shoot.

However, Zachere admitted he intentionally shot in the direction where he heard the

people in the apartment:

Q. (Prosecutor) The gun went off on accident?
A. (Zachere) No. I shot, but it wasn’t intentional to hit anyone.
Q. (Prosecutor) You shot into an apartment on purpose. You didn’t aim
up in the air. You didn’t aim down at the ground. You shot into a
window where you heard people, right?
A. (Zachere) Yes, sir.
...
Q. (Prosecutor) No. My question: Did you pull the trigger on
purpose?
A. (Zachere) It wasn’t no purpose behind it.
Q. (Prosecutor) How did it go off?
A. (Zachere) I pulled the trigger.
Q. (Prosecutor) You pulled the gun, you pointed it through a
window, and you pulled the trigger four times. You did
that, correct?
A. (Zachere) Yes, sir.
16
Zachere went on to admit that, in a prior incident, he broke Amy’s door down

but denied he went inside the apartment since he was only “at” the front door. He

denied assaulting Amy as she had told the jury and said that it didn’t happen and he

didn’t lay a hand on her. Under further cross-examination, Zachere admitted that he

first lied to the police about the shooting at Carl’s apartment in July until the

investigator revealed that he was caught lying. He also continuously said he didn’t

go to Amy’s apartment to “do violence” after he found the correct apartment where

Amy lived. During the prior incident where Amy’s ring camera was damaged,

Zachere denied having a knife with him initially but then admitted he damaged the

ring camera with a knife. He denied having a gun in his pocket at Amy’s door in the

incident prior to the second shooting even though he was heard on the ring camera

saying “I’m gonna shoot up this b*tch.” On cross-examination about that incident,

he said he didn’t intend to shoot anybody that day. The evidence indicates, based

upon Zachere’s own statements, Zachere earnestly believed Amy and her boyfriend

were in Carl’s apartment when he shot four times into the window. He admitted he

intentionally shot into the window of the apartment, and he aimed toward the people

he heard making noise under the mistaken idea that Amy and her boyfriend were

having sexual relations. Zachere presented no credible evidence that he shot by

accident or mistake, or that he was unsure whether people were in the apartment

when he pointed the gun and shot four shots.

17
In Cavazos, the Court of Criminal Appeals concluded:

There was no evidence directly germane to recklessness. Pulling out a
gun, pointing it at someone, pulling the trigger twice, fleeing the scene
(and the country), and later telling a friend “I didn’t mean to shoot
anyone” does not rationally support an inference that Appellant acted
recklessly at the moment he fired the shots. The evidence here does not
support a finding of recklessness and does not rise to [a] level that
would convince a rational jury to find that if Appellant is guilty, he is
guilty of only the lesser-included offense. Without additional evidence
supporting a finding of recklessness, [Appellant]’s testimony alone is
insufficient to require an instruction on the lesser-included offense of
manslaughter. Because the facts did not raise manslaughter as a valid,
rational alternative to the charged offense, Appellant was not entitled
to the requested jury instruction.

Cavazos, 382 S.W.3d at 385-386. Following the reasoning of Cavazos, the trial court

was within its discretion to determine that there was no more than a scintilla of

evidence which would rise to the level that would convince a rational jury to find

that, if Zachere is guilty, he is guilty of only the lesser-included offense of

manslaughter. See id. By his own testimony and statements, Zachere admitted that

he intended to go to Amy’s apartment and intentionally fired four shots through the

window in the direction that he heard people he believed were having sex. Bald-

faced, self-serving statements such as, “I ain’t have no intent on harming

anybody[;]” it was “senseless[]” later corrected by his attorney to say “reckless[;]”

“I just pulled the trigger out of frustration, sir[;]” “I didn’t think nothing[;]” “I don’t

know[;]” and related statements are not evidence that Zachere could only be found

guilty of manslaughter and not guilty of murder. See id. Just as the court found in

18
Cavazos, without additional evidence supporting a finding of recklessness, Zachere's

testimony alone is insufficient to require an instruction on the lesser-included

offense of manslaughter. See id. at 385. Because the facts did not raise manslaughter

as a valid, rational alternative to the charged offense, Zachere was not entitled to the

requested jury instruction. See id. at 385-86. We overrule Zachere’s point on issue

two.

The Charges to the Jury on Punishment

In issue one, Zachere complains the trial court erred by including the parole

law instruction provided by the Code of Criminal Procedure for certain felony cases:

The length of time for which a defendant is imprisoned may be
reduced by the award of parole.

Under the law applicable in this case, if the defendant is
sentenced to a term of imprisonment, the defendant will not become
eligible for parole until the actual time served equals one-half of the
sentence imposed or thirty years, whichever is less. Eligibility for
parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law might be
applied to this defendant if [he is] sentenced to a term of imprisonment,
because the application of that law will depend on decisions made by
parole authorities.

You may consider the existence of the parole law. However, you
are not to consider the manner in which the parole law may be applied
to this particular defendant.

See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).

19
Appellant did not object to the punishment charge on parole law at trial. When

there was no objection in the trial court below, we evaluate any error under

Almanza’s “egregious harm” standard and related factors. See Almanza, 686 S.W.2d

at 171. Under the first Almanza factor, the court reviews the punishment charge in

its entirety to determine if there is error in the charge. See Ngo, 175 S.W.3d at 743.

In a case upholding the constitutionality of the parole instruction in the jury charge,

the Court of Criminal Appeals stated that “the over-all purpose of the instruction is

to inform jurors of these concepts as a general proposition, but to prohibit the jury

from using its notions of parole or ‘good conduct time’ in any calculus in assessing

the appropriate punishment.” Luquis v. State, 72 S.W.3d 355, 360 (Tex. Crim. App.

2002). The trial court followed the statutory language verbatim. Both our court and

the Court of Criminal Appeals have previously rejected the proposition that the

statutory parole instruction in the punishment charge is unconstitutional, and we

decline to revisit the issue in this case. Since there was no error by placing the

statutory instruction on parole in the punishment charge, no harm analysis is

necessary. We overrule issue one.

In issue four, Zachere complains that he was entitled to an instruction to the

jury during the punishment trial on the issue of “sudden passion.” A defendant who

presents some evidence of sudden passion, even if the evidence is weak, impeached,

contradicted, or unbelievable, is entitled to an instruction on this mitigating

20
circumstance. Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003).

However, in order to preserve charge error on a defensive issue, the defendant is

required to object to the charge as presented or to request the instruction to which

the defense believes it is entitled. See Simpson v. State, 548 S.W.3d 708, 710-11 (Tex.

App.—Houston [1st Dist.] 2018, pet. ref’d); Beltran v. State, 472 S.W.3d 283, 290

(Tex. Crim. App. 2005). When the defendant fails to object or states in the trial court

that he has no objection to the charge, we will not reverse for jury charge error unless

the record shows “egregious harm” to the defendant. See Ambrose, 487 S.W.3d at

595. To show egregious harm, Zachere must demonstrate harm that affected “‘the

very basis of the case,’” “‘deprive[d] the defendant of a valuable right,’” or “‘vitally

affect[ed] a defensive theory.’” Ngo, 175 S.W.3d at 750 (citation omitted).

After a review of the record before us, we conclude that Zachere was not

entitled to an instruction on “sudden passion.” The evidence did not support an

instruction under Tex. Penal Code Ann. section 19.02. Even his own testimony did

not support his argument that he acted as a result of “sudden passion.”

At the punishment stage of a murder trial, “the defendant may raise the issue

as to whether he caused the death under the immediate influence of sudden

passion arising from an adequate cause.” Tex. Penal Code Ann. § 19.02(d).

“‘Adequate cause’ means cause that would commonly produce a degree of anger,

rage, resentment, or terror in a person of ordinary temper, sufficient to render the

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mind incapable of cool reflection.” Id. § 19.02(a)(1). “‘[S]udden passion’ means

passion directly caused by and arising out of provocation by the individual killed or

another acting with the person killed which passion arises at the time of the offense

and is not solely the result of former provocation.” Id. § 19.02(a)(2). If the defendant

proves the issue in the affirmative by a preponderance of the evidence, the murder

offense is reduced from a first-degree felony to a second-degree felony. Id. §

19.02(d).

The evidence at trial showed Zachere had been rejected by Amy in the months

prior to this shooting. Zachere had been stalking her, following her from residence

to residence over several months, trying to locate her, and he believed that he had

found her apartment on the morning of July 11. He said he believed she was having

sexual intercourse with her boyfriend because of what he heard when he was outside

standing next to the window of Carl’s apartment. While this may have aroused

“passion” in him, the evidence shows that there was nothing sudden about it. The

evidence indicates Zachere had months to reflect on his actions. To justify a jury

instruction on sudden passion, the record must show the person acted without

adequate time for “cool reflection” before the act of shooting. See Wooten v. State,

400 S.W.3d 601, 605 (Tex. Crim. App. 2013).

The statute requires the provocation be “sudden” and not based upon some

previous provocation (i.e., the break-up of the relationship or previous denial of

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access to their child). See id. We cannot say the trial court erred in refusing to submit

a “sudden passion” instruction during the punishment phase of the trial.

That said, even assuming without deciding that Zachere was entitled to a

“sudden passion” instruction, viewing the evidence in light of the Ngo standard, we

find there was no egregious harm because it did not affect “the very basis of the

case,” “deprive the defendant of a valuable right,” or “vitally affect a defensive

theory.” See Ngo, 175 S.W.3d at 750. For all of the foregoing reasons, we overrule

issue four.

CONCLUSION

Having overruled all of Zachere’s issues, we affirm the trial court’s judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on December 29, 2025
Opinion Delivered January 7, 2026
Do Not Publish

Before Johnson, Wright and Chambers, JJ.

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