MEMORANDUM OPINION

No. 04-24-00302-CR

Christopher Lee POWELL, Appellant v. The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2022CR0452 Honorable Frank J. Castro, Judge Presiding

Opinion by: Adrian A. Spears II, Justice

Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Adrian A. Spears II, Justice

Delivered and Filed: October 1, 2025

AFFIRMED AS MODIFIED

After a jury trial, Christopher Lee Powell was found guilty of murder and sentenced to

forty years of imprisonment. On appeal, he argues there was insufficient evidence from which the jury could reject his claim of self-defense. He further complains of jury charge error and prosecutorial misconduct. Finally, he argues there was insufficient evidence to support the trial court’s determination of court costs. Because we agree there was insufficient evidence to support

04-24-00302-CR the trial court’s determination of costs in the amount of $9,750.00, we modify the judgment to reflect court costs in the amount of $290.00. As modified, we affirm the trial court’s judgment.

SUFFICIENCY

On appeal, Powell argues the evidence is legally insufficient to support the jury’s implicit rejection of his self-defense claim. In Texas, deadly force used in self-defense is a defense to prosecution for murder if that use of force is “justified.” See TEX. PENAL CODE §§ 9.02 (“It is a defense to prosecution that the conduct in question is justified under this chapter.”); 9.31–9.32

(setting forth substantive requirements for establishing claim of self-defense). Section 9.31 of the Penal Code provides that, subject to certain exceptions, 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.” Id. § 9.31(a). The use of force is not justified in response to verbal provocation alone, or if the actor provoked the other’s use or attempted use of unlawful force. Id. § 9.31(b). Thus, if an actor “provoked the difficulty,” he may forfeit his right to self-defense. See id. 9.31(b)(4) (explaining that the use of force against another is not justified if the actor provoked the other’s use or attempted use of unlawful force unless the actor abandoned the encounter, or clearly communicated to the other

“his intent to do so reasonably believing he [could] not safely abandon the encounter,” and “the other nevertheless continue[d] or attempt[ed] to use unlawful force against the actor”). A

“reasonable belief” in this context is defined as “a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” Id. § 1.07(a)(42).

A person is justified in using deadly force against another (1) if he would be justified in using force against the other under section 9.31, and (2) “when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the 04-24-00302-CR other’s use or attempted use of unlawful deadly force, or (B) to prevent the other’s imminent

commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.” Id. § 9.32(a). The actor’s belief that the deadly force was immediately necessary is presumed to be reasonable under certain circumstances, including that the actor “knew or had reason to believe that the person against whom the deadly force was used” was committing or attempting to commit one of several enumerated serious felony offenses, and that the actor did

not provoke the person against whom the force was used and was not otherwise engaged in criminal activity, other than a Class C misdemeanor traffic violation. Id. § 9.32(b).

“In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based

on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Martin v. State, 635 S.W.3d 672, 679

(Tex. Crim. App. 2021). “We measure the sufficiency of the evidence against the hypothetically- correct jury charge, defined by the statutory elements as modified by the charging instrument.”

Edward v. State, 635 S.W.3d 649, 656 (Tex. Crim. App. 2021).

“The jury is the sole judge of the weight and credibility of the evidence.” Id. at 655. “When considering a claim of evidentiary insufficiency, we must keep in mind that a juror may choose to believe or disbelieve all, some, or none of the evidence presented.” Id. “Further, while jurors may not base their decision on mere speculation or unsupported inferences, they may draw reasonable

inferences from the evidence.” Id. “The evidence is sufficient to support a conviction, and thus the jury’s verdict is not irrational, if ‘the inferences necessary to establish guilt are reasonable based

upon the cumulative force of all the evidence when considered in the light most favorable to the verdict.’” Id. at 655-56 (quoting Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)).

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“When faced with conflicts in the evidence, a reviewing court shall presume that the fact finder resolved those conflicts in favor of the verdict and defer to that determination.” Id. at 656. As a

reviewing court, we “may not re-evaluate the weight and credibility of the record evidence in the record and thereby substitute our judgment for that of the fact finder.” Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007). Further, “[a]lthough the parties may disagree about the logical inferences that flow from undisputed facts, ‘[w]here there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.’” Evans v. State, 202

S.W.3d 158, 163 (Tex. Crim. App. 2006) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985)). “However, juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions.” Hooper v. State, 214 S.W.3d 9, 15-16 (Tex.

Crim. App. 2007). “Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative

force of all the incriminating circumstances is sufficient to support the conviction.” Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018).

“[I]n a claim of self-defense . . . that would justify a defendant’s use of force against

another, the defendant bears the burden to produce evidence supporting the defense, while 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). “The defendant’s burden of production requires him to adduce some evidence that would support a rational finding in his favor on the defensive issue.” Id. “By contrast, the 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.’” Id. (quoting Zuliani

v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)). “Thus, ‘[i]n resolving the sufficiency of the evidence issue, we look not to whether the State presented evidence which refuted appellant’s self- 04-24-00302-CR defense testimony, but rather we determine whether after viewing all the evidence in the light most

favorable to the prosecution, any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against appellant on the self-

defense issue beyond a reasonable doubt.’” Id. at 609 (quoting Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991)). “[T]he issue of self-defense is an issue of fact to be determined by the jury,” and a “‘jury verdict of guilty is an implicit finding rejecting the defendant’s self-defense theory.’” Id. (quoting Saxton, 804 S.W.2d at 914).

The undisputed evidence in this appeal shows that on April 9, 2021, Powell shot Ibrahim

Suarez, a thirty-seven-year-old man, with a firearm, thereby causing Suarez to suffer from three

gunshot wounds that caused his death. One bullet entered at Suarez’s right ear, traveling back and upwards in his head. Two other bullets entered his left upper chest wall, going through his heart.

At the time of the shooting, both Powell and Suarez were stopped at an intersection. Powell was seated in the driver’s seat of his vehicle, and Suarez was standing outside his car. Video evidence of the scene shows blood splatter from Suarez’s wounds on the driver’s-side rear door of Powell’s vehicle.

Surveillance video from a nearby convenience store shows that on April 9, 2021, Powell parked his vehicle at a gasoline pump and entered the convenience store with a man, later identified as Jacob Campbell, while Powell’s wife, Crystal Davis, waited in the car. A minute later, Suarez parked his vehicle on the other side of the same gasoline pump and entered the convenience store.

Surveillance video from inside the convenience store shows no interaction between Powell and Suarez, or Campbell and Suarez. The surveillance video further shows Powell and Campbell paying and leaving the store first. Powell then got inside his car and sat in the driver’s seat while

Campbell pumped gasoline. A minute later, Suarez left the convenience store and also began 04-24-00302-CR pumping gas. Campbell and Suarez were on opposite sides of the same gasoline pump for approximately twenty seconds.

The convenience store had two exits at opposite directions from the gasoline pumps.

Surveillance video shows Powell leaving the gasoline pump and turning toward the direction of the same exit where he had entered the gas station. In doing so, Powell’s car passed several gasoline pumps. When Powell’s car reached the last pump, instead of exiting in the same direction

he had entered the parking lot, Powell’s car u-turned around the gasoline pumps to go back in the same direction as where Suarez was still pumping gas. As Powell’s vehicle approached where

Suarez was still pumping gasoline, Powell slowed the car, almost came to a stop, and rolled down his window. Suarez, who had approached Powell’s driver’s-side door, appeared to exchange words with Powell. Suarez then gestured by raising his hand towards Powell as Powell drove away.

Suarez then took the gasoline pump out of his vehicle, got into his vehicle, and sped off in the same direction as Powell’s vehicle.

In his police interrogation, the video of which was admitted in evidence, Powell claimed that Suarez had been “staring at [him] very intrusively.” Before he drove away from the gasoline

pump, Powell remarked to his wife that Suarez was really staring them down. According to Powell, his wife replied that Suarez had been “staring at [her] the whole time” and was “creeping [her] out.” In his brief, Powell claims that he turned back around the gasoline pumps because his GPS directed him to leave that way. Powell points to the portion of the interrogation video where he stated that he was just following his GPS during that time. Powell told the police that as he drove

by the gasoline pump where Suarez was still pumping gasoline, Suarez threw “his hands up” and “call[ed] [Powell] a bitch.” Powell then stated that Suarez followed him to where Powell was stopped at a red light, got out of his car, was “angrily gesturing,” and was yelling “You’re a bitch!”

04-24-00302-CR

Powell stated that Suarez, while yelling, hit Powell’s driver’s-side window with his bare fists.

According to Powell, Suarez then went back to his car, but before he could get into his car, turned around and began walking back to Powell’s car. Powell admitted he did not see Suarez with a weapon, but stated it was dark and he did not know what Suarez was doing. Powell told the police

that when Suarez was “still at a distance from [Powell],” Powell shot a “warning shot” back in Powell’s direction. Powell stated that Suarez “kept coming” and made a couple of more steps.

Powell then shot Suarez three times. He then called 911. The 911 recording of Powell’s call was introduced in evidence. The recording begins with Powell stating, “N*gger threatened my life.”

Crystal Jackson testified that she was driving the car that was stopped behind Suarez’s car

at the red light. When she approached the red light, Suarez was outside of his car and was at the window of the car in front of him. Jackson testified she quickly realized that Suarez was talking to someone in the car in front of him. Jackson could not “make out what they [were] saying because

[her] windows were up.” According to Jackson, at first, she thought there had been a “fender bender.” When asked if Suarez appeared to be angry, Jackson replied that he did not. Suarez was

“just having a conversation with the person in front of him.” When asked if Suarez appeared to be yelling, Jackson replied, “No.” Jackson was asked if there was anything about the interaction that led her to believe it was serious. Jackson again replied, “No.” Jackson testified Suarez then turned

“around as if he was getting back into his car so we [could] go on, but he got maybe to his

[side]view mirror and he turned back around.” Jackson continued, “And when he turned back around to—he went back towards the car in front of him, that’s when we heard the shots.” Jackson was then asked whether she saw or heard anything that would have caused Suarez to turn around.

Jackson replied, “My indication as far as maybe he turned around is because maybe the man said something. I don’t know.” Jackson said that when Suarez turned around to approach the car in 04-24-00302-CR front of him, he “was saying something, I don’t know what.” Jackson “could see that his mouth was moving, and that’s when the person shot him.” Jackson heard gunshots in a quick, repetitive fashion: “It was like a pop, pop, pop, pop.”

Jackson was clear in her testimony that Suarez never got back into his car. She was also clear that she never saw Suarez with any weapons. She also never saw Suarez physically assault anyone.

Officer Shawn Hassold testified that at the scene of the shooting, he saw a Glock pistol in an open bag on the backseat of Powell’s car. He spoke with Crystal Davis who had been a

passenger in Powell’s vehicle. According to Officer Hassold, Davis appeared to be in shock and was very upset. She was yelling and “screaming profanities.” Officer Hassold asked Davis what had happened, and Davis stated that “she had been drinking or she was intoxicated,” and that was the reason why she was not driving. She said, “He was hitting my window.” Another officer interrupted and told Officer Hassold to give Davis Miranda warnings. After the warnings were given, Davis stated, “I don’t know what happened.”

Detective Judy Avilez of the Converse Police Department testified that Powell admitted to lying during his first interview with the police. During that first interview, Powell stated that his friend Jacob Campbell had left before the shooting. However, when the police saw the surveillance videos and realized Powell had lied, Detective Avilez questioned Powell again. Powell admitted that he had lied and that Campbell had not left until after the shooting. Detective Avilez testified

Powell said there was “a dime bag of marijuana that belonged to Mr. Powell” in the car, and Campbell grabbed the bag of marijuana and left the scene on foot. Thus, there was evidence that

Powell had admitted to lying during his recorded statement to police and that Powell had admitted to possessing an illegal substance during the shooting.

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Dr. Rajesh Kannan, the chief medical examiner, testified that Suarez died as a result of three gunshot wounds. A toxicology report found the presence of methamphetamine and alcohol in Suarez’s body. According to Dr. Kannan, “there was no evidence of a close-range fire” on

Suarez’s body.

Lieutenant Gil Martinez assisted in taking inventory from Suarez’s and Powell’s vehicles.

A pistol was recovered from a purse in Powell’s vehicle. Two knives were found in Suarez’s vehicle.

Leila Pierre, Suarez’s sister, described Suarez as nonviolent and protective. According to

Pierre, Suarez was not likely to start a fight but would not back down from one. Pierre testified

that Suarez was a member of Latin Skulls, a motorcycle club. She expressed surprise at the toxicology report indicating that methamphetamine was found in Suarez’s system.

In his brief, Powell argues no rational jury would have determined there was sufficient evidence to overcome the presumption of reasonableness in Powell’s belief that he needed to use deadly force against Suarez. See TEX. PENAL CODE § 9.32(b). Powell points to evidence that Suarez had methamphetamine and alcohol in his system, belonged to a motorcycle gang, and had knives in his car. Powell also emphasizes his own version of events as relayed in his police interrogation video. However, in viewing all the evidence in the light most favorable to the prosecution, we conclude that “[t]here is sufficient evidence in the record to rationally support the jury’s rejection of appellant’s version of the events.” Braughton, 569 S.W.3d at 611. While Powell argues that he said and did nothing to cause Suarez’s actions, portraying himself as being an “innocent” party who was “chased down” by Suarez, the evidence shows a more complicated version of events.

First, the jury heard evidence that Powell admitted to lying to the police during his first interrogation when he failed to mention the presence of the third person in his car during the 04-24-00302-CR shooting. Only after investigators saw the third person in Powell’s vehicle on surveillance video did Powell admit a third person had been present, stating he had given the bag of marijuana in his car to the third person who then left on foot.

Further, the surveillance video is not consistent with the version of events Powell told police investigators. Powell claimed that Suarez had been “staring” at him and his wife in some sort of malevolent manner. However, the surveillance video does not show Suarez staring at

Powell and his wife in any fashion. The surveillance video shows that Powell parked his car and entered the store with Campbell. A minute later, Suarez parked and, within twenty seconds of parking, entered the store. The surveillance video does not show Suarez “staring down” Powell’s wife. The surveillance video from inside the store shows no interaction between the parties. Powell and Campbell then exited the store. Powell entered the driver’s seat while Campbell pumped gasoline. Suarez then walked to his car and began pumping gas. Again, the surveillance video does not show Suarez “staring down” Powell and his wife. The surveillance video reflects that Suarez and Campbell pumped gas on opposite sides of the gasoline pump for a total of twenty seconds.

Campbell then entered Powell’s car, and within ten seconds, Powell drove away.

The surveillance video shows a reaction from Suarez when Powell’s car circled back in the direction of Suarez’s gasoline pump and slowed down. The video shows Powell’s window being lowered and words being exchanged between Powell and Suarez. Suarez then gestured as Powell’s car drove away. Suarez immediately stopped pumping gasoline and sped off in the same direction as Powell. This surveillance footage contradicts Powell’s version of events as being a completely

“innocent” party who is surprised that Suarez followed him from the convenience store.

Further, Jackson, an eyewitness to the shooting who was in the car behind Suarez’s car, testified that she saw no aggressive actions by Suarez, believing that there must have been a

- 10 - 04-24-00302-CR “fender bender.” She saw no weapon in Suarez’s hand. Jackson further testified that Suarez went back towards his car and changed his mind when he reached his driver-side window. She testified Suarez was merely talking “when the person shot him.” Jackson was clear in her testimony that she did not see Suarez with any weapons, did not see Suarez physically assault anybody, did not see Suarez strike a vehicle or any other object, and did not see Suarez throw anything. From all this evidence, a rational jury could have rejected Powell’s version of events and determined that his use of deadly force was not immediately necessary to prevent Suarez from using deadly force against him. See Braughton, 569 S.W.3d at 610-11 (explaining that while the dissenting opinion argued the answer to the sufficiency issue hinged on the applicability of the presumption of reasonableness established in section 9.32(b), “the jury here could have rationally determined that appellant did not have any ‘reason to believe’ that the complainant ‘was committing or attempting to commit robbery or murder at the time that appellant shot him’ and thus the evidence was sufficient ‘to rationally support the jury’s rejection of appellant’s version of events’”). In viewing all the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt and also could have found against Powell on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. We thus hold that the evidence was sufficient to support the jury’s implicit rejection of Powell’s self-defense claim. JURY CHARGE The jury charge in this case instructed the jury that Powell stood charged by indictment with the offense of murder, alleged to have been committed on or about April 9, 2021, in Bexar County, Texas, and that Powell had pled not guilty. The charge then instructed the jury that a person commits murder if he (1) intentionally or knowingly causes the death of an individual, or - 11 - 04-24-00302-CR (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. The charge explained that if the jury unanimously found from the evidence beyond a reasonable doubt that on or about April 9, 2021 in Bexar County that Powell “did intentionally or knowingly cause the death of an individual, namely, Ibrahim Suarez, by shooting Ibrahim Suarez with a deadly weapon, namely, a firearm;” or “with intent to cause seriously bodily injury” to Suarez, “did commit an act clearly dangerous to human life that caused the death of” Suarez “by shooting [him] with a deadly weapon, namely, a firearm;” then the jury should “next consider whether Christopher Lee Powell acted in self-defense, and proceed to paragraph 5.” The jury was further instructed that if it did “not so find beyond a reasonable doubt, or if [it] ha[d] a reasonable doubt thereof,” it should find Powell not guilty and should not consider paragraph 5. In paragraph 5 of the charge, the jury was instructed about the law of self-defense. Tracking section 9.31(a) of the Texas Penal Code, the jury was instructed that “it is a defense to this prosecution if the conduct of the defendant was justified by law,” and 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 the other’s use or attempted use of unlawful force.” See TEX. PENAL CODE § 9.31(a). Tracking section 9.32(a)(1)-(2)(A) of the Penal Code, the jury was instructed about the use of deadly force: A person is justified in using deadly force against another: (1) If the person would be justified in using force against the other in the first place, as set out above; and (2) When and to the degree the person reasonably believes the deadly force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force. - 12 - 04-24-00302-CR See TEX. PENAL CODE § 9.32(a)(1)-(2)(A). The jury was instructed that the “use of force against another is not justified in response to verbal provocation alone” and that a “person has a right to defend from apparent danger to the same extent as he would had the danger been real provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time.” The jury was given the applicable definitions of “reasonable belief” and “deadly force.” See TEX. PENAL CODE § 1.07(a)(42) (definition of “reasonable belief”); id. § 9.01(3) (definition of “deadly force”). Tracking section 9.32(c), the jury was then instructed that there was no duty to retreat in certain circumstances: A person (1) who has a right to be present at the location where the deadly force is used, and (2) who has not provoked the person against whom the deadly force is used (or, if he had, the actor abandoned the encounter), and (3) who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force. If all three of these factors are met, then in determining whether such actor reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat. See TEX. PENAL CODE § 9.32(c). Tracking the language of section 9.32(b), the jury was then instructed about when the presumption of reasonableness applied: You are instructed that the defendant’s belief that the deadly force was immediately necessary is presumed to be reasonable if the defendant: (1) knew or had reason to believe that the person against whom deadly force was used a. unlawfully and with force entered, or was attempting to enter unlawfully and with force, the defendant’s vehicle; or b. unlawfully and with force removed, or was attempting to remove unlawfully and with force, the defendant from his vehicle; and (2) the defendant did not provoke the person against whom the force was used (or, if he has, the actor abandoned the encounter); and (3) the defendant was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. - 13 - 04-24-00302-CR See TEX. PENAL CODE § 9.32(b). The charge further explained that this “presumption of reasonable belief applies unless the State proves beyond a reasonable doubt that the facts giving rise to the presumption to not exist.” The charge continued, If the State fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed facts exist. If the jury has a reasonable doubt as to whether the facts giving rise to the presumption do not exist, the presumption applies and the jury must consider the presumed fact to exist. Even if the jury finds that the State has proven beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the State must prove beyond a reasonable doubt each of the elements of the offense charged in the indictment, as instructed in this charge. The defendant is not required to prove self-defense. The [S]tate must prove beyond a reasonable doubt that the defendant’s conduct was not justified by self-defense. The charge then applied the above law to the facts: Now, keeping in mind these instructions, even if you unanimously find that the State has proven beyond a reasonable doubt that the defendant, Christopher Lee Powell, committed the charged offense of murder, you must next decide whether the State has proven beyond a reasonable doubt that the conduct was not justified by self-defense. Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, Christopher Lee Powell, committed the offense of murder, as charged in the indictment and as instructed in Paragraph 4; But you further find from the evidence that, or you have a reasonable doubt as to whether, at the time he did so; (1) Christopher Lee Powell reasonably believed, or is presumed to have reasonably believed, as viewed from his standpoint, that Ibrahim Suarez was using or attempting to use unlawful deadly force against Christopher Lee Powell; and (2) Christopher Lee Powell reasonably believed, or is presumed to have reasonably believed, as viewed from his standpoint, that his use of deadly force and the degree of deadly force used were immediately necessary to protect himself against Ibrahim Suarez’s use or attempted use of unlawful deadly force; and (3) Christopher Lee Powell’s use of deadly force was not in response to verbal provocation alone; - 14 - 04-24-00302-CR Then, you will acquit the defendant, Christopher Lee Powell, and say by your verdict “not guilty.” However, if you find from the evidence beyond a reasonable doubt that the defendant, Christopher Lee Powell, committed the offense of murder, as charged in the indictment and as instructed in Paragraph 4; And you further find from the evidence beyond a reasonable doubt that: (1) Christopher Lee Powell did not reasonably believe, and is not presumed to have reasonably believed, as viewed from his standpoint, that Ibrahim Suarez was using or attempting to use unlawful deadly force against Christopher Lee Powell; or (2) Christopher Lee Powell did not reasonably believe, and is not presumed to have reasonably believed, as viewed from his standpoint, that the use of deadly force and degree of deadly force used was immediately necessary to protect himself against Ibrahim Suarez’s use or attempted use of unlawful deadly force; or (3) Christopher Lee Powell’s use of deadly force was in response to verbal provocation alone; Then you will find against the defendant, Christopher Lee Powell, on his justification defense and find the defendant guilty of the offense of murder as charged in the indictment. A. Standard of Review On appeal, Powell brings six issues complaining about the jury charge—none of which were brought to the trial court’s attention at trial. “In reviewing charge error, we must first determine whether error exists.” Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). “If we find error, we must then determine whether the error caused sufficient harm to require reversal.” Id. (citing Almanza, 686 S.W.2d at 171). The “degree of harm necessary for reversal depends upon whether the error was preserved.” Id. (citing Almanza, 686 S.W.2d at 171). “Error properly preserved by an objection to the charge will require reversal as long as the error is not harmless.” Id. (citing Almanza, 686 S.W.2d at 171). The court of criminal appeals has “interpreted this to mean that any harm, regardless of degree, is sufficient to require reversal.” Id. (citing Almanza, 686 S.W.2d at - 15 - 04-24-00302-CR 171). “But when the charging error is not preserved, a greater degree of harm is required, and this standard of harm is described as egregious harm.” Id. (citing Almanza, 686 S.W.2d at 171). “Errors that result in egregious harm are those affecting the ‘very basis of the case,’ those depriving ‘the defendant of a valuable right’ or those that ‘vitally affect a defensive theory.’” Id. (citing Almanza, 686 S.W.2d at 171). With respect to his appellate complaints about the jury charge, Powell did not object to the jury charge at trial. Thus, any error by the trial court will be assessed for egregious harm. B. Powell’s First Jury Charge Complaint Powell argues that when the trial court tracked the language of section 9.32(b) in the jury charge and instructed the jury on the presumption of reasonableness, it should have also included a definition for the term “provoke.” See TEX. PENAL CODE § 9.32(b)(2). For support, Powell relies on caselaw where the Texas Court of Criminal Appeals has held that a charge on provoking the difficulty pursuant to section 9.31(b)(4) 1 is permitted when there is sufficient evidence to support three elements: (1) the defendant did some act or used some words that provoked the attack on him; (2) such act or words were reasonably calculated to provoke the attack; and (3) the act was done, or the words were used, for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. See Elizondo v. State, 487 S.W.3d 185, 198-201 (Tex. Crim. App. 2016); Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998). According to Powell, the trial court erred by failing to define “provoke” in the “presumption of reasonableness” portion of the jury charge in the same way as “provoke” is defined in Elizondo and Smith. Powell, however, has cited no authority that would require “provoke” to be defined in a jury charge