presumption of reasonableness instruction in Texas

2025See Villarreal, 453 S.W.3d at 439-40 (finding no egregious harm was caused by the 54 omission of a presumption-of-reasonableness instruction where the victim was unarmed after the defendant took the victim’s weapon away).

2019See id. § 9.32(b)(3); Villareal, 453 S.W.3d at 440 (defendant’s admission that he threatened to beat up victim immediately prior to stabbing him reflected that he was otherwise engaged in criminal activity at the time of the stabbing and that he was ineligible to receive the benefit of a presumption-of-reasonableness instruction); Lee v. State, 415 S.W.3d 915, 925 (Tex. App.—Texarkana 2013, pet. ref’d) (where charge included misstatement of the law regarding section 9.32(b), appellant suffered no egregious harm, in part, because the evidence showed she was actively distributing drugs on the da

2026See Almanza, 686 S.W.2d at 171 ; Gonzalez v. State, No. 13-23-00025- CR, 2024 WL 2349321 , at *6 (Tex. App.—Corpus Christi May 23, 2024, no pet.) (mem. op., not designated for publication) (finding elements met and defendant was entitled to the presumption- 17 of-reasonableness instruction when some evidence, when viewed in the light most favorable to the defendant, suggested he feared for his life, there was no evidence he provoked the complainant, or the evidence was conflicted, and the evidence did not clearly establish defendant was engaged in criminal activity).

2026See Almanza, 686 S.W.2d at 171 ; Haye v. State, No. 01-15-01057- CR, 2017 WL 444462 , at *6 (Tex. App.—Houston [1st Dist.] Feb. 2, 2017, pet. ref’d) (mem. op., not designated for publication) (concluding, after considering all relevant factors, appellant did not suffer any actual, as opposed to theoretical, harm as a result of error stemming from the jury charge not including the presumption-of-reasonableness instruction); Schule v. State, No. 05-13-01200- CR, 2015 WL 1859040 , at *16 (Tex. App.—Dallas Apr. 22, 2015, no pet.) (not designated for publication) (finding appellant failed to show h

2022Under Texas law, when the “evidence conclusively establishe[s] that [the defendant] was engaged in criminal activity at the time he used deadly force,” the presumption of reasonableness instruction is “not the law applicable to the case.” Reyna v. State, 597 S.W.3d 604 , 607 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Lee v. State, 415 S.W.3d 915, 925 (Tex. App.— Texarkana 2013, pet. ref’d) (“Although a few witnesses supported the self-defense theory, all of the eyewitnesses to the shooting claimed that Lee was actively distributing drugs that day; thus, she would not be entitled to the pr

2019See id. § 9.32(b)(3); Villareal, 453 S.W.3d at 440 (defendant’s admission that he threatened to beat up victim immediately prior to stabbing him reflected that he was otherwise engaged in criminal activity at the time of the stabbing and that he was ineligible to receive the benefit of a presumption-of-reasonableness instruction); Lee v. State, 415 S.W.3d 915, 925 (Tex. App.—Texarkana 2013, pet. ref’d) (where charge included misstatement of the law regarding section 9.32(b), appellant suffered no egregious harm, in part, because the evidence showed she was actively distributing drugs on the da

2022See Rogers, 550 S.W.3d at 193 ; Barrios, 389 S.W.3d at 393 .

2022See, e.g., Barrios v. State, 389 S.W.3d 382, 393 (Tex. App.— Texarkana 2012, pet. ref’d) (“When the accused is engaged in other criminal activity, the statute does not disqualify the accused from defending his or her use of force, it simply removes the presumption that his or her use of force was reasonable—a significant difference.”).

2022See Rogers, 550 S.W.3d at 193 ; Barrios, 389 S.W.3d at 393 .

2016See Vega, 394 S.W.3d at 522 (appellant not egregiously –17– harmed when entrapment application paragraph failed to list both conditions under which the jury was authorized to acquit); Arrington, 451 S.W.3d at 845 (trial court’s failure to give unanimity instruction with respect to six counts of aggravated sexual assault of child and one count of indecency with child by contact, arising out of multiple instances of criminal conduct, did not result in egregious harm); Villarreal, 453 S.W.3d at 443 (omission of a presumption-of- reasonableness instruction did not cause appellant egregious harm);

2016App. 2011) (no egregious harm when jury instructions permitted non- unanimous verdicts even though there were several instances of sexual criminal conduct that could have satisfied the charged offenses); Allen, 253 S.W.3d at 268 (failure to instruct jury that it had to acquit appellant on charge of simple assault if it had reasonable doubt as to whether victim consented to assault did not rise to level of egregious harm); Barrerra v. State, 10 S.W.3d 743, 746 (Tex. App.—Corpus Christi 2000, no pet.) (appellant did not suffer egregious harm from charge’s failure to include an application paragr

2016App. 2011) (no egregious harm when jury instructions permitted non- unanimous verdicts even though there were several instances of sexual criminal conduct that could have satisfied the charged offenses); Allen, 253 S.W.3d at 268 (failure to instruct jury that it had to acquit appellant on charge of simple assault if it had reasonable doubt as to whether victim consented to assault did not rise to level of egregious harm); Barrerra v. State, 10 S.W.3d 743, 746 (Tex. App.—Corpus Christi 2000, no pet.) (appellant did not suffer egregious harm from charge’s failure to include an application paragr

2016See Vega, 394 S.W.3d at 522 (appellant not egregiously –17– harmed when entrapment application paragraph failed to list both conditions under which the jury was authorized to acquit); Arrington, 451 S.W.3d at 845 (trial court’s failure to give unanimity instruction with respect to six counts of aggravated sexual assault of child and one count of indecency with child by contact, arising out of multiple instances of criminal conduct, did not result in egregious harm); Villarreal, 453 S.W.3d at 443 (omission of a presumption-of- reasonableness instruction did not cause appellant egregious harm);

2016See Vega, 394 S.W.3d at 522 (appellant not egregiously –17– harmed when entrapment application paragraph failed to list both conditions under which the jury was authorized to acquit); Arrington, 451 S.W.3d at 845 (trial court’s failure to give unanimity instruction with respect to six counts of aggravated sexual assault of child and one count of indecency with child by contact, arising out of multiple instances of criminal conduct, did not result in egregious harm); Villarreal, 453 S.W.3d at 443 (omission of a presumption-of- reasonableness instruction did not cause appellant egregious harm);

2015As the court of criminal appeals noted in Villarreal, “[e]gregious harm is a ‘high and difficult 3 Appellant filed his brief before the court of criminal appeals issued its opinion in Villarreal. –5– standard’ to meet and . . . must be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d at 433 (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim.

2015See Wooten, 400 S.W.3d at 609 .

2015Id. (citing Oursbourn v. State, 259 S.W.3d 159, 180 (Tex.Crim.App.2008)). *432 Applying these principles to the present case, the court concluded that there was “some evidence to support each of the three prongs under section 9.32(b),” and, therefore, the trial court erred by omitting a presumption-of-reasonableness instruction.

2013See Villareal v. State, No. 04- 11-007771-CR, __ S.W.3d __, 2012 WL 6028981, at *7 (Tex. App.—San Antonio Dec. 5, 2012, no pet.) (“Without the presumption of reasonableness instruction, Villareal’s only defense was significantly undermined.”); State v. Sanchez, No. 08- 11-00380-CR, __ S.W.3d __, 2012 WL 4910163, at *4 (Tex. App.—El Paso Oct. 17, 2012), pet. struck by No. PD-1656-12, 2013 WL 458167 (Tex. Crim.

2013See Villareal v. State, No. 04- 11-007771-CR, __ S.W.3d __, 2012 WL 6028981, at *7 (Tex. App.—San Antonio Dec. 5, 2012, no pet.) (“Without the presumption of reasonableness instruction, Villareal’s only defense was significantly undermined.”); State v. Sanchez, No. 08- 11-00380-CR, __ S.W.3d __, 2012 WL 4910163, at *4 (Tex. App.—El Paso Oct. 17, 2012), pet. struck by No. PD-1656-12, 2013 WL 458167 (Tex. Crim.