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April 2, 2026 Get Citation Alerts Download PDF Add Note

CUEVAS, VICTOR HUGO v. the State of Texas

Court of Criminal Appeals of Texas

• Citations: None known
• Docket Number: PD-0144-25
• Nature of Suit: PDR Case Type

• Disposition: Reversed COA; Remanded COA

• Opinion

• Authorities (27)

• Cited By (0)

• Summaries (0)

• Similar Cases (44.4K)

• PDF

Disposition

Reversed COA; Remanded COA

Lead Opinion

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0144-25

VICTOR HUGO CUEVAS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
FORT BEND COUNTY

PARKER, J., delivered the opinion of the Court in which
RICHARDSON, NEWELL, WALKER, and MCCLURE, JJ., joined. MCCLURE, J.,
filed a concurring opinion in which WALKER, J., joined. KEEL, J., concurred.
YEARY, J., filed a dissenting opinion in which FINLEY, J., joined and SCHENCK,
P.J., joined as to part 6.

OPINION

Throughout the trial, this case included serious misstatements of law that
CUEVAS — 2

were buttressed by the trial judge’s rulings. In voir dire, opening statements, and

closing arguments, the State took the position that Appellant could not assert self-

defense because he was engaged in the commission of a crime during the shooting

even though the law deprives a defendant of only a presumption of reasonableness

if he commits a crime at the time he uses force in defense of himself. Concluding

that it was uncontroverted that Appellant was committing a crime at the time of the

incident, the court of appeals found that it was error to include a presumption-of-

reasonableness instruction in the jury charge. Nevertheless, the court of appeals

held that this erroneous inclusion was harmless. Appellant contends, among other

things, that the court of appeals erred in its harm determination. We agree.1

1
We granted Appellant’s first two grounds for review. In ground one, Appellant claimed,
among other things:

The Court of Appeals majority erred in finding harmless error
where:
...

b) the prosecutor erroneously repeatedly misstated during jury
selection, the defense opening statement, and final argument that
the law did not allow Petitioner to claim self-defense because he
was engaged in criminal activity and the trial judge repeatedly
erroneously ruled in favor of the misstatements by the prosecutor,

c) over defense objections, the trial judge erroneously included a
charge which stated a person does not get a self-defense
presumption of reasonableness if he is engaged in criminal activity
as well as a provocation charge.
CUEVAS — 3

I. BACKGROUND

A. The Incident

In July 2017, while eating sushi at a shopping center, Juan Garza saw

Appellant and his friend Milton Egbe (Egbe) on two motorcycles speed into the

parking lot. Appellant got off his motorcycle and walked over to a parked car to

speak to Osiekhuemen Omobhude (Ose) in his car. Garza then heard a sound “like

fireworks” and saw Appellant chasing the car, gun in hand, as Ose drove away.

While working at a Buffalo Wild Wings, Alexis Blanton recalled a man, later

determined to be Ose, rushing into the restaurant in a “frantic” state and “looking

for help.” Ose collapsed and became “unresponsive.” First responders took Ose

to a hospital where he was pronounced dead. The medical examiner revealed that

Ose had been shot in the right side of his face and the back of his right shoulder and

likely died within a matter of minutes.

Appellant and Egbe testified in Appellant’s defense. According to Appellant,

he and Egbe planned to eat at the sushi restaurant and then go to a nearby shooting

range, but it became apparent that the two would not have had enough time to get

Due to our disposition of the portion of Appellant’s first ground that addresses harm from the
inclusion of the presumption of reasonableness in the jury charge, we do not reach other issues
contained in his first ground, nor do we reach his second ground for review.
CUEVAS — 4

to the shooting range before it closed had they eaten before. Appellant testified that

he planned to sell marijuana to Ose, so he set up a drug buy, texted Ose the time,

place, and price for the drug deal, brought a handgun, and gave another handgun to

Egbe to Egbe’s surprise. When the two arrived at the parking lot, Appellant told

Egbe to wait by the motorcycles while he walked to Ose’s car. Appellant sat in the

car on the passenger side with his backpack of marijuana. According to both

Appellant and Egbe, Ose pressed a gun to Appellant’s head, choked him, took his

phone and marijuana, and then told him to “[g]et the fuck out.” Once he stepped

out of the car, Appellant looked back at Ose, who still had his gun trained on him.

Ose asked, “Do you have any bread?” Appellant said that he did not have money,

to which Ose said, “Stop playing with me. I will smoke you,” as he cocked his

handgun.

According to Appellant, immediately after Ose cocked his gun, Appellant

shut the door, retrieved the handgun he had tucked into his waistband, and shot

seven times into the car. Ose drove away, initially heading toward Egbe and the

motorcycles. Egbe testified that he reached into his backpack to draw his weapon

when he saw Ose put a hand on Appellant’s neck. He was still looking for his gun

when he heard gunshots but did not know who was shooting. When he looked up,
CUEVAS — 5

the car was heading toward him, so he shot at the car.

Investigator Patrick Douglas, for the Fort Bend County Sheriff’s Office,

testified to a security camera video that recorded a scene after the shooting where it

shows Appellant and Egbe putting their motorcycles into a garage. Investigator

Douglas noted that it appeared as though Appellant and Egbe either high-fived or

fist-bumped each other.

Jesse Richey testified that he was at a friend’s house two weeks before the

shooting and met Ose. According to Richey, Ose told him, “He wanted to rob

somebody named Victor. And whenever I tried telling him that it wasn’t a good

idea, that he should not do that, he said that he did not care and that Victor was an

easy lick for him.”

B. The Trial

The State’s theory at trial was that this was a drug deal that “went south”

and that Appellant intended to shoot and kill Ose. Appellant relied on a theory of

self-defense, that Ose robbed Appellant and threatened him with gun violence. The

jury charge instructed the jury on murder, self-defense, and the law of parties. The

jury found Appellant guilty of murder. The main issue in this case is whether the

erroneous inclusion of a presumption on self-defense harmed Appellant. This issue
CUEVAS — 6

manifested itself throughout the trial, beginning in voir dire.

1. Voir Dire

An issue throughout the trial was whether the prosecutor misstated the law

on self-defense. While addressing the venire about the presumptions of

reasonableness of self-defense, the prosecutor made the following explanation:

[PROSECUTOR]: Okay. So you have that. And you
didn’t start. Okay? So somebody’s breaking into your
house with deadly force, you’re reasonable to use deadly
force against them because you didn’t start the – you
didn’t start the action, right? And you were not engaged in
criminal activity. So all three of those things have to
occur. For example –

[DEFENSE COUNSEL]: Objection, Judge, that’s an
improper statement of the law.

[PROSECUTOR]: It’s under 9.32, exactly out of the
Code, Judge.

[DEFENSE COUNSEL]: Only to get a presumption,
Judge. She’s saying it’s a proposition of law that you
can’t use deadly force unless all these things occur. And
that’s flat wrong. That’s only if you want the
presumption that it’s reasonable.2

The trial judge had the prosecutor repeat the question, and she said, “What

I’m trying to explain to the jury, Judge, are situations where deadly force is

2
Emphasis added.
CUEVAS — 7

reasonable under the law.” Defense counsel again said that this is incorrect, and

the judge overruled the objections. Just after this exchange, the prosecutor quizzed

the venire on self-defense by using an example of a thief claiming self-defense.

During this hypothetical, the prosecutor said, “Yes. He’s stealing, which is a crime

right, right? So he can’t use deadly force there either, can he?” Defense counsel

objected again, stating that the State is trying to mislead the jury. This objection

was also overruled.

To illustrate its explanation of self-defense, the State also showed the venire

a slide show.3 One slide was titled, “Deadly Force is Reasonable IF:” That slide

ends by telling the venire that deadly force is reasonable if the defendant, “Was

NOT engaged in criminal activity.” The next slide was titled, “Use of Force

NOT justified...” The last bullet-point under this heading said: “If you are

committing a crime.” Defense counsel also objected to these slides and was

overruled again.

1. Opening Statement

The next time this issue arose was in the Defense’s opening statement. The

State waived its opening. In the first full page of his opening, defense counsel said,

3
See infra at Appendix A.
CUEVAS — 8

“And unlike what you heard in voir dire about self-defense not being available, if

someone is committing a crime, self-defense is available if someone is committing a

crime.” The State objected “as to improper opening and also a misstatement of the

law.” This objection was sustained.

1. Charge Conference

During the charge conference, defense counsel argued that the jury charge

should not include any presumption language because it was not at issue. Defense

counsel told the trial judge:

Judge, the rest of 9.32 has to do with the presumption,
which is not applicable to this case. And it’s an improper
comment on the weight of the evidence. So it’s not
applicable.
...
Presumption is not an issue here. It’s not proper to
include it, Judge.
The prosecutor responded that the jury charge should include the “whole

law” but conceded that “the defendant admitted on the stand that he was

participating in delivery of marijuana.” The defense attorney continued:

We’re not asking for the presumption, Judge. It’s not
applicable. And all it does is it gives the prosecutor a
chance – you know, this is a -- this is a sore subject,
Judge. Because this prosecutor voir dired on the wrong
CUEVAS — 9

law. I objected many times. You let her do it. You let her
voir dire on the wrong law and let the jury –
The judge interrupted and told defense counsel not to “get into personal

attacks.” Defense counsel disagreed that he was engaging in a personal attack and

emphasized the importance of the issue, saying, “The importance begins in voir

dire when the jury was told and allowed to be told the wrong law. It’s not

applicable.” The judge responded, “That’s your opinion . . . And you can disagree

with my ruling and you made that quite clear.”

Later, defense counsel explained his concern:

And I know, no doubt, what she’s going to try to do,
she’s going to try to mislead the jury again and go back
and say: Oh, look at this section here. He was committing
a crime, therefore he doesn’t get self-defense. And I’ve
got to go through and say – go through this whole thing
again that’s already been bandied around when it does
not apply, Judge.
...
Judge, we have stipulated and it’s uncontroverted that he
was involved in criminal activity with the possession of
marijuana, other than a Class C misdemeanor, which
would make him unavailable to have the presumption of
reasonableness.
...
And so all it does is to confuse the jury and it goes back to
what the prosecutor has been doing all along is trying to
CUEVAS — 10

confuse the jury on the law and the facts. It’s not
applicable, period.
...
This presumption has nothing to do with it. All it does is
mislead them and confuse them because it’s not
applicable. And not being applicable, they’re going to get
confused and the prosecutor’s going to get up and do just
what she did in voir dire and say: Oh, he’s committing –
he’s committing a crime so he doesn’t get to use it, find
him guilty.
...
And she’s already used it in a bad way and she’ll
continue to use it again.

1. Jury Charge

The abstract portion of the jury charge stated the following:

The defendant’s belief that the deadly force was
immediately necessary is presumed to be reasonable if the
defendant knew or had reason to believe that the person
against whom the deadly force was used: unlawfully and
with force entered, or was attempting to enter unlawfully
and with force, the actor’s occupied habitation, vehicle,
or place of business or employment; unlawfully and with
force removed, or was attempting to remove unlawfully
and with force, the defendant from the defendant’s
habitation, vehicle, or place of business or employment;
or was committing or attempting to commit aggravated
kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery; and the
defendant did not provoke the person against whom the
force was used; and the defendant was not otherwise engaged
CUEVAS — 11

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.4
The presumption of reasonableness did not have a dedicated instruction in

the application section of the charge, but a variation of the words “reasonable

belief,”5 to which the presumption relates, was contained in the self-defense

application paragraph:

Therefore, if you find from the evidence beyond a
reasonable doubt that the defendant, Victor Cuevas, did
shoot Oseikhuemen Omobhude with a deadly weapon,
namely a firearm, as alleged, but you further find from
the evidence, as viewed from the standpoint of the
defendant at the time, that from the words or conduct, or
both of Oseikhuemen Omobhude it reasonably appeared
to the defendant that his life or person was in danger and
there was created in his mind a reasonable expectation or
fear of death or serious bodily injury from the use of
unlawful deadly force at the hands of Oseikhuemen
Omobhude, and that acting under such apprehension and
reasonably believing that the use of deadly force on his part
was immediately necessary to protect himself against
Oseikhuemen Omobhude's use or attempted use of
unlawful deadly force, he shot Oseikhuemen Omobhude,
then you should acquit the defendant on the grounds of
self-defense; or if you have a reasonable doubt as to
whether or not the defendant was acting in self-defense

4
Emphasis added.
5
See TEX. PENAL CODE § 1.07(b) (“The definition of a term in this code applies to each
grammatical variation of the term.”).
CUEVAS — 12

on said occasion and under the circumstances, then you
should give the defendant the benefit of that doubt and
say by your verdict, not guilty.6

1. Closing Arguments

In closing arguments, defense counsel discussed the presumption language

in the jury charge:

But you-all did take that oath to tell the truth and a true
verdict. And unlike what the prosecution told you back in
voir dire that if you’re committing a crime, you can’t use
self-defense. And y’all remember back then I was
bouncing out of my chair like a Jack-in-the-box
screaming, saying that’s not the law.
Guess what? I told you right. It’s not the law. It does
factor into a presumption, an assumption if you will. An
instance in some situations in which you can sort of start
in a different place other than the race line where
everybody’s at the same place.
Later in his closing, defense counsel explained the presumption further:

We talked about—back in voir dire, [a]bout the Castle
Doctrine and how it gives you a presumption, if certain
things are applicable. They’re not applicable in this case,
but because it’s here we’re going to talk about it. You can
get a presumption of reasonable, otherwise your actions
in shooting are presumed to be reasonable, which is like a
head start. Okay?

6
Emphasis added.
CUEVAS — 13

It’s not starting on the same line, it’s an assumption. You
can assume that the deadly force is okay if certain things
happen. And those certain things are—and the list is all
there—basically you’ll see them in the list and y’all can
go back and read them. Is if [sic] like you’re in your home
or your car or something like that, not doing anything
illegal, someone tries to come in on you, you can shoot
them died [sic]. And the cops come out and go: Is that
what happened? Yep. Okay. We’re going to presume it’s
good.
And instructions to the jury will be the same thing. We’re
going to assume that there’s no problem, everything is
fine. That’s a presumption. That’s what this is explaining
to you here, how a presumption works. I’m telling you it
doesn’t apply because [Appellant] was selling dope.
And this is no different, ladies and gentleman, in life and
someone sitting in their car at a red light with their wife
and had a few too many beers, someone pulls up and
yanks her out of the car, dragging her to another car.
Does it make sense that the law would say you’re
committing a crime of having too much beer and you
can’t use your gun? Of course not.
After the Defense finished its closing arguments, the prosecutor said the

following in her rebuttal argument:

[Defense Counsel] talked about the presumption a little
bit and I don’t want you guys to get confused because it is
kind of a confusing area of the law, because you heard a
lot about that, right? [Appellant] is a victim of aggravated
robbery...
Here’s the problem. He cannot use deadly force to protect
against the imminent commission of aggravated robbery if
he’s also committing another crime. You can’t do it. And we
CUEVAS — 14

know at the very least, right, he’s committing aggravated
assault. Deadly conduct, illegal possession of a firearm,
delivery of marijuana, possession of marijuana, the list
goes on. Right?
So he doesn’t get it. He doesn’t get there. There was no
imminent commission of aggravated robbery because if
taking his story as the truth, means the robbery was over.
I don’t think it’s the truth, but we’ll just give him the
benefit of the doubt. Right?
If it’s over, he doesn’t get self-defense. Well, let’s assume it’s
still going on in some world. He doesn’t get it because he’s
committing other crimes. So it all goes back to: Well, I
don’t think I did it. But if you figure it out and you caught
me and I did it, this is why I did it.
You can’t use that excuse. It doesn’t apply to him.7
At that point, defense counsel objected to the State’s argument. The judge

overruled the objection, and the jury convicted Appellant. At the punishment

stage of trial, the jury found that Appellant acted under the influence of sudden

passion arising from an adequate cause8 and sentenced him to 18 years in prison.

C. The Appeal

Agreeing with Appellant, the court of appeals held “that the presumption of

reasonableness was not applicable and should not have been included in the jury

7
Emphasis added.
8
See TEX. PENAL CODE § 19.02(d).
CUEVAS — 15

charge because it [was] undisputed that he was engaged in criminal

activity—namely, a drug deal—when he shot Ose.”9 The court of appeals then

weighed the Almanza factors: the entire jury charge, the arguments of counsel, the

state of the evidence, and any other relevant information revealed by the record.10

The court of appeals held that the first factor weighed against a finding of

harm because the abstract portion of the jury charge correctly stated the law on the

presumption,11 the application portion of the charge did not refer to it at all, and the

application section is what authorizes conviction.12 The court of appeals also found

that the evidence factor weighed against a finding of harm because there was

“more than sufficient evidence” for the jury to find that Appellant did not act in

self-defense—Appellant arranged the time and place for the drug deal, came

armed, brought an accomplice, and followed Ose as Ose attempted to flee, and an

eyewitness testified that Appellant appeared calm and appeared to high-five or fist-

9
Cuevas v. State, —S.W.3d—, No. 14-22-00561-CR, 2024 Tex. App. LEXIS 2612, 40 (Tex.
App.—Houston [14th Dist.] April 16, 2024).
10
Id. at 41-47; see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g).
11
Cuevas, 2024 Tex. App. LEXIS 2612, at 41.
12
Id. at 42 (citing Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012)).
CUEVAS — 16

bump Egbe after the shooting.13 The court of appeals found that the argument

factor weighed slightly in favor of harm because the State misstated the law on the

presumption of reasonableness but that the harm was ameliorated by Appellant

when he addressed the prosecutor’s misstatements of the law in his closing.14 And

the court of appeals held that the record does not reveal any other information,

such as jury notes indicating it was confused about the charge and did not weigh

this factor.15

In light of the four factors, the court of appeals found that the error in the

jury charge was harmless because defense counsel corrected the prosecutor’s

misstatement of the law, the court instructed the jury to follow the law set out in

the charge, and the charge did not contain a misstatement of the law, so Appellant

identified a purely theoretical harm from the erroneous inclusion of the

presumption instruction.16

13
Id.
14
Id. at 46.
15
Id.
16
Id. at 47. We note that Appellant also complained to the court of appeals about the
State’s voir-dire comments relating to the presumption. Apparently assuming error, the court of
appeals concluded that there was no harm. Id. at 15 (“Even if we were to agree with appellant’s
characterization of the prosecutor’s comments, we apply a harmless error analysis to a
prosecutor’s alleged misstatements of law during voir dire. Here, the record shows that defense
CUEVAS — 17

The dissent in the court of appeals found that the first factor was neutral

because, while the jury charge did not repeat the presumption in the application

paragraph, the presumption language was used throughout the trial to prevent the

use of self-defense.17 The dissent agreed that the arguments-of-counsel factor

weighed in favor of harm but also noted that the State’s argument came on

rebuttal, leaving Appellant no opportunity to refute the State’s argument.18 The

dissent averred that the third factor was neutral at best because there was evidence

to suggest that Appellant’s version of the story was true.19 For the last factor, the

dissent noted that the State’s “misunderstanding of the law started with voir dire,

and continued through opening and closing statements” and was aggravated by the

fact the judge agreed with the State.20

II. ANALYSIS

counsel had the opportunity to examine the venire panel about self-defense and to correct any
misstatement of law, including the reasonable-belief presumption or the criminal-activity caveat,
and the record further shows that defense counsel did precisely that.”) (citations, including
references to TEX. R. APP. P. 44.2(b), omitted). The dissent claims that Appellant did not
complain about the court of appeals’s resolution of the voir-dire issue in his petition, but our
reading of his petition suggests that he did. Nevertheless, we did not grant review of that issue.
17
Id. at 63 (Christopher, C.J., dissenting).
18
Id. at 64.
19
Id. at 64-65.
20
Id.
CUEVAS — 18

A. Self-Defense Statute and Applicable Law

This case revolves around Section 9.32 of the Texas Penal Code.

Appellant’s defensive theory was that he acted in self-defense when faced with

deadly force by Ose during a marijuana deal gone wrong. Section 9.32, which

details when deadly force in defense of persons is justified, states the following:

(a) A person is justified in using deadly force against another:
(1) if the actor 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 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.21
The presumption involving the use of deadly force has several elements, but

we need only concern ourselves with the last element:

(b) The actor’s belief under Subsection (a)(2) that the deadly force was
immediately necessary as described by that subdivision is presumed to be
reasonable if the actor:
...

21
TEX. PENAL CODE § 9.32(a).
CUEVAS — 19

(3) 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.22
When a rule or statute requires an instruction that is “the law applicable to

the case,” the trial court must instruct the jury accordingly.23 In general, issues that

do not involve the elements of the offense and are not applicable in every case

constitute law applicable to the case only if raised by the evidence.24 In particular,

the issue of the existence of a presumed fact must be submitted to the jury “unless

the court is satisfied that the evidence as a whole clearly precludes a finding beyond

a reasonable doubt of the presumed fact.”25 Thus, when the evidence conclusively

establishes that the defendant was engaged in criminal activity at the time he used

22
TEX. PENAL CODE § 9.32(b)(3).
23
Oursborn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008).
24
Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009) (“But what criteria qualify a
statement of law as being ‘applicable to the case’? Some information, such as the elements of the
charged offense, must appear in the jury charge and is without question ‘the law applicable to the
case.’ But a Section 8.04(a) instruction need not appear in every jury charge, and therefore, there
is no sua sponte duty to instruct the jury on that issue, but the judge may do so, if the question of
voluntary intoxication applies to the case. We have stated that a Section 8.04(a) instruction is
appropriate if there is evidence from any source that might lead a jury to conclude that the
defendant’s intoxication somehow excused his actions...We disagree with the court of appeals’s
conclusion that there was no evidence of intoxication sufficient to raise an issue under Section
8.04(a). We hold that it was not error to include the voluntary intoxication instruction in the jury
charge...”) (citations omitted); Cf. Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001)
(Accomplice as a matter of fact instruction “was erroneous because the issue was not raised by
the evidence.”).
25
TEX. PENAL CODE § 2.05(b)(1).
CUEVAS — 20

deadly force, the presumption of reasonableness is not the law applicable to the

case.26

Because the court of appeals found error, and the State did not file a petition

from that adverse determination, we assume error.27 Since the error in submitting

the presumption was objected to, the record need only show “some harm.”28 In

the context of Almanza, “the presence of any harm, regardless of degree, which

26
Cf. Villareal v. State, 453 S.W.3d 429 (Tex. Crim. App. 2015) (finding presumption
inapplicable based on uncontroverted evidence that the defendant was engaged in the
commission of a crime).
27
The State’s brief seems to suggest fleetingly that the inclusion of the presumption might
have been proper, but it made no clear argument and focused its discussion on harm. In any
event, it failed to bring the issue before us via a petition for discretionary review. See Blasdell v.
State, 470 S.W.3d 59, 62 n.4 (Tex. Crim. App. 2015) (This Court refused to address one of the
State’s claims because “we did not grant review of that issue. Moreover, the State did not
properly raise the...issue in a cross-petition for discretionary review.”) (also citing and quoting
Keith, infra); Keith v. State, 782 S.W.2d 861, 863 n.4 (Tex. Crim. App. 1989) (“[W]here the State
intends to claim an error by the Court of Appeals’ rejection of an argument, that claim should be
presented to this Court in a petition for discretionary review or a cross-petition for discretionary
review.”).
The dissent takes us to task for assuming error. But assuming error after it has been
decided in a lower appellate court—and not complained about in a proper manner—is not the
same thing as assuming error when the issue of error has never been addressed. The dissent
nevertheless urges us to grant review of the issue of error on our own motion. We note, however,
that Appellant’s commission of a crime during the events at issue was never in dispute at trial.
Both parties explicitly told the jury during closing arguments that Appellant was committing a
crime during the shooting. In fact, the prosecutor pointed to several crimes—including the
possession and delivery of marijuana and the illegal possession of a firearm. Given this trial
background, we see no compelling reason to go the extra mile to grant review of an error issue
that has not been properly raised before us.
28
Elizondo v. State, 487 S.W.3d 185, 204 (Tex. Crim. App. 2016).
CUEVAS — 21

results from preserved charging error, is sufficient to require a reversal of the

conviction. Cases involving preserved charging error will be affirmed only if no

harm has occurred.”29 Even “the less exacting standard of ‘some’ harm still

requires that the record reveal ‘actual,’ and not merely ‘theoretical’ harm.”30

In determining whether Appellant suffered “some harm,” we must look to

(1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the

evidence, and (4) any other relevant factors present in the record.31

B. The Almanza Factors

1. Error in Light of the Entire Jury Charge

As we explained earlier, we assume that the presumption was inapplicable

because it was not raised by the evidence. However, the presumption correctly

stated the law, and if it were correctly interpreted, the jury would simply conclude

that the presumption did not apply and proceed to determine whether Appellant

actually, rather than presumptively, acted in self-defense. Ordinarily, we presume

29
Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (emphasis in original).
30
French v. State, 563 S.W.3d 228, 236 (Tex. Crim. App. 2018).
31
See Almanza, 686 S.W.2d at 171.
CUEVAS — 22

that the jury has understood and followed the instructions given.32 And an

inapplicable but legally correct abstract instruction that purports to benefit a

defendant (as the presumption-of-reasonableness instruction did) would generally

not harm a defendant.33 But there is one way to misuse the presumption-of-

reasonableness instruction that could cause serious harm: if the presumption were

conflated with the ability to act in self-defense at all, that misconstruction could be

devastating to a defendant’s self-defense claim. As we shall see in discussing other

factors, the prosecutor in the present case repeatedly advocated this

misconstruction to the jury.

The parties and the court of appeals have suggested that the presumption

was not included in the application paragraph. If that suggestion were a complete

and accurate characterization of the jury charge, that fact would weigh in the

State’s favor because we have said that the application paragraph is the “heart and

soul of the jury charge,”34 and we have suggested that “inclusion of a merely

32
Crenshaw, 378 S.W.3d at 467.
33
Cf. Druery v. State, 225 S.W.3d 491, 497-98 (“Also, if Pitts and Harris are not
accomplices, then the trial judge’s instruction regarding accomplice witnesses as a matter of fact
was superfluous and did not harm Druery. Indeed, such an instruction could only benefit him
because it allowed the jury to require corroboration of the witnesses’ testimony if it believed that
the witnesses were accomplices to Rome’s murder.”).
34
Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012).
CUEVAS — 23

superfluous abstraction, therefore, never produces reversible error in the court’s

charge because it has no effect on the jury’s ability fairly and accurately to

implement the commands of the application paragraph or paragraphs.”35 However,

the application paragraph’s phrase “reasonably believing” effectively incorporated

the abstract presumption by reference.36 The abstract instruction on the

presumption was essentially a partial explanation on how to determine whether

Appellant’s belief was reasonable and was thus logically linked to the application

paragraph. Consequently, the absence of a dedicated application paragraph for the

presumption does not significantly cut against a finding of harm. The entirety-of-

the-charge factor weighs, at most, slightly in favor of the State.

1. Other Relevant Factors Present in the Record

We discuss this factor next because it involves some proceedings earlier in

the trial in which the State previewed its inaccurate position on the law. In voir dire,

the State used examples and included veniremembers in hypotheticals to explain

that Appellant was not legally entitled to self-defense. The State’s misstatements

35
Plata v. State, 926 S.W.2d 300, 302-03 (Tex. Crim. App. 1996), overruled on other
grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).
36
See Vasquez, 389 S.W.3d at 367-68 (discussing that holding in Marvis v. State, 36 S.W.3d
878 (Tex. Crim. App. 2001) that the words “acting together” were sufficient, at least absent
objection, to incorporate an abstract definition on the law of parties).
CUEVAS — 24

of the law were further exacerbated by the slide show it displayed to the jury.

Before ever reading the jury charge, the state primed the jury, repeatedly, that a

defendant may not claim self-defense if he was also engaged in the commission of a

crime. The court of appeals claimed that defense counsel had the opportunity to

correct any misstatement of law and that defense counsel did exactly that. This

overlooks the fact that, when the defense did attempt to correct misstatements of

law, the judge either overruled the defense’s objections or sustained the State’s

objections.

In his opening statement, defense counsel attempted to ameliorate the harm

that the State’s explanation of self-defense during voir dire caused. Near the

beginning of defense counsel’s opening statement, counsel said the following:

“And unlike what you heard in voir dire about self-defense not being available, if

someone is committing a crime, self-defense is available if someone is committing a

crime.” The State objected “as to improper opening and also a misstatement of the

law”37 which the judge sustained.

37
While defense counsel’s opening statement may have included an improper argument
about the law, it was done to correct the misstatements of law by both the prosecutor and the
judge. This could have been an opportunity for the judge to mitigate any harm caused in voir dire.
CUEVAS — 25

The judge repeatedly overruled defense objections to the State’s

misstatements of the law and sustained the State’s objections to defense counsel

when the defense would attempt to correct misstatements of the law. In doing so,

the trial court consistently put the stamp of judicial approval on the State’s

misstatements of law.38 Every defense objection was a missed opportunity for the

trial judge to clear up the law on self-defense and the fact that the State was

conflating the presumption with the rule on self-defense.

In addition, in the punishment phase of trial, the jury made a finding of

sudden passion. This finding suggests that the jury believed Appellant’s story

because that story was the only basis for a sudden-passion finding. Indeed, in

punishment closing arguments, both Appellant and the State told the jury that it

would have to believe Appellant’s version of events to make the finding. Defense

counsel told the jury that Appellant’s reaction to hearing Ose cock his gun, “that

immediacy of it, that’s sudden passion.” The State explained, “What he’s really

saying is: Hey, Jury, I know you didn’t buy my self-defense but maybe if I call it

sudden passion, you’ll buy that right? Y’all are very intelligent.” The jury’s

finding of sudden passion combined with its rejection of self-defense suggests that

38
See Burke v. State, 652 S.W.2d 788, 790 (Tex. Crim. App. 1983).
CUEVAS — 26

it believed Appellant’s story but also believed the State’s interpretation of the

presumption issue and therefore thought its hands to be tied on the issue of self-

defense. The other-relevant-information factor weighs heavily in favor of harm to

Appellant.

1. The Entirety of the Evidence

The court of appeals held that this factor also weighed against a finding of

harm because the evidence of Appellant’s guilt was overwhelming. However, as

the dissent in the court of appeals explained, the evidence was not as lopsided as

the majority suggested. The testimony of Appellant and Egbe, if believed, would

entitle Appellant to a self-defense finding. And other evidence provided at least

some support for that testimony. The drug sale—that Appellant organized—took

place in public with witnesses all around as evidenced by those who testified at

trial. Appellant and Ose were in a public parking lot, in front of a restaurant. If

Appellant went to this drug-buy intending to inflict violence, why would he pick

this area? Also, Appellant left his cell-phone and the marijuana he intended to sell

in Ose’s vehicle—suggesting that his original intent was to sell the marijuana and

that the altercation was a surprise. And, Richey testified that Ose planned to rob

someone with the same first name as Appellant. Richey’s testimony also
CUEVAS — 27

contradicted the court of appeals’ assertion that the only evidence suggesting self-

defense came from Appellant and his cohort. The fact that Appellant brought a

firearm to a drug deal was not conclusive evidence that he intended to start a

firefight; drug dealing is a dangerous activity and bringing a firearm for protection

is an unfortunate reality of that activity.39 We hold that this factor weighs at least

moderately in favor of harm.

1. Arguments of Counsel

As laid out fully above, the State doubled down on the seed it planted in voir

dire when the prosecutor argued in rebuttal, “[Appellant] cannot use deadly force

to protect against the imminent commission of aggravated robbery if he’s also

committing another crime.” Soon after this, the prosecutor doubled down again:

He doesn’t get it because he’s committing other crimes.
So it all goes back to: Well, I don’t think I did it. But if
you figure it out and you caught me and I did it, this is
why I did it.
You can’t use that excuse. It doesn’t apply to him.

39
Plummer v. State, 410 S.W.3d 855, 859 (Tex. Crim. App. 2013) (“The nature of the illegal
drug trade invites the possibility of violence and encourages drug dealers to carry deadly weapons
to protect themselves and their inventory.”); United States v. Wiener, 534 F.2d 15, 18 (2nd Cir. 1976)
(discussing that drug dealers keep firearms “as tools of the trade almost to the same extent as they
keep scales, glassine bags, cutting equipment, and other narcotics equipment”).
CUEVAS — 28

This last argument punctuated the State’s practice at essentially every point

in the trial. When defense counsel objected at this point, the judge again overruled

Appellant’s last attempt to correct the State’s misstatements of law.40

The court of appeals found that the harm of the State’s argument was

ameliorated by defense counsel when he attempted to cure the State’s

misstatement of the law. But the prosecution’s remarks about the presumption

came on rebuttal—the last words the jury would hear and to which the defense

could not respond. And the trial judge, as in every prior instance when the issue

arose, ruled in favor of the State.

Though the jury charge correctly recited the presumption language, the

prosecutor misused this portion of the charge in precisely the way to which it was

susceptible by conflating it in a way that stripped it of its meaning. The only thing

that might prevent this factor from weighing heavily in favor of harm is the fact that

the defense’s objection was a little late. However, the trial judge had been

consistently overruling these types of objections, and this objection was made early

enough for the judge to issue a curative instruction. We hold that this factor weighs

at least moderately in favor of harm.

40
See Burke, 652 S.W.2d at 790.
CUEVAS — 29

1. Weighing the Factors

After weighing all of the Almanza factors, one factor weighs heavily in favor

of harm, two factors weigh at least moderately in favor of harm, and one factor

weighs slightly against a finding of harm. These factors showed the State

previewing how it will misuse the presumption in voir dire and opening statements

and then actually misusing the presumption in its closing argument on rebuttal.

While the irrelevant instruction did not incorrectly recite the abstract law relating

to the presumption, the State consistently told the jury that the instruction meant

that Appellant had no defense. As a result, Appellant was virtually stripped of his

defensive theory. We conclude that he suffered at least “some harm.”41

This Court addressed a similar issue in Reeves v. State, where a jury charge

erroneously included an instruction on provocation even though it did not apply to

the facts of the case.42 The State used a provocation instruction to claim that

“[Reeves] is not justified in claiming self-defense,” which was contrary to the

law.43 Much like Appellant’s case, the State used an irrelevant instruction to

41
Elizondo, 487 S.W.3d at 204.
42
Reeves v. State, 420 S.W.3d 812, 820 (Tex. Crim. App. 2013).
43
Id.
CUEVAS — 30

highlight the arguments it made to the jury.44 The only differences between these

two cases are (1) a provocation instruction could only harm a defendant’s case

whereas a presumption of reasonableness instruction would generally tend to

benefit a defendant, and (2) the provocation instruction in Reeves also appeared in

the application section of the charge. However, as in Reeves, the State in this case

weaponized the instruction at issue to improperly limit the right to self-defense.45

This Court noted in Reeves that: “(1) the State misspoke about the law of

provocation and then told the jury to pay careful attention to the erroneous

instruction, and (2) the evidence concerning self-defense was hotly contested and

[A]ppellant’s version of events was, at a minimum, plausible, and, if believed,

exonerating.”46 Those two types of factors were also present here. In this case, the

State and the trial judge continuously impressed misstatements of the law on the

jury, and “the evidence of guilt was not so overwhelming that the erroneous...

44
Id. (discussing the fact the prosecutor called the jury’s attention to the erroneous
instruction in the charge which “emphasized the improper instruction and brought it to the
forefront of the juror’s minds”)
45
Cf. Rodgers v. State, 550 S.W.3d 190 (Tex. Crim. App. 2018) (An error in the jury charge
was aggravated by the State’s misstatements of the law.).
46
Reeves, 420 S.W.3d at 821.
CUEVAS — 31

instruction was harmless.”47 In addition, the jury’s finding of sudden passion

further buttresses these factors weighing in favor of harm.

III. CONCLUSION

Because we hold that Appellant suffered at least some harm from the

inclusion of the presumption instruction, we reverse the judgment of the court of

appeals and remand the case for a new trial.

Delivered: April 2, 2026

Publish

47
See Id. at 820.
CUEVAS — 32

Appendix A
CUEVAS — 33

Concurrence Opinion

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0144-25

VICTOR HUGO CUEVAS, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appellant’s Petition for Discretionary Review
From the Fourteenth Court of Appeals
Fort Bend County

MCCLURE, J., filed a concurring opinion in which WALKER, J., joined.

The majority assumed error because the court below found error, and because

the State did not file a petition from that adverse determination. I write separately to

discuss my belief that the prosecutor’s misstatements regarding self-defense were so

erroneous as to be the deciding factor in the Court’s determination that error in the

jury charge caused some harm to Appellant.
Cuevas Concurrence - 2

To my mind, the following slide, shown by the prosecutor to the venire panel,

illustrates why we are here:

Point number five is a bald misstatement of the law. Appellant’s timely

objection to this slide correctly pointed out that under Section 9.32 of the Penal

Code, the ongoing commission of a crime (other than a Class C offense) merely

eliminates the presumption that the use of deadly force was reasonable—it does not

preclude a jury from acquitting based on self-defense. See TEX. PENAL CODE §

9.32(b). As defense counsel explained at the end of voir dire, “It’s just a jury

question: Was the force reasonably used at the time under the circumstances. That’s

what it is. It has nothing to do with the presumption. That’s something different.”
Cuevas Concurrence - 3

Cuevas v. State, No. 14-22-00561-CR, 2024 Tex. App. LEXIS 2612, at *16 (Tex.

App.—Houston [14th Dist.] 2024).

This “misunderstanding of the law started with voir dire, and continued

through opening and closing statements.” Id. at *65 (Christopher, C.J., dissenting).

The harm caused by these erroneous statements was compounded by the trial court,

because each time an objection was made on this issue, the trial judge ruled in favor

of the State. This put defense counsel in the odd predicament of having to convince

the jury that not only did the State have the law wrong—the trial judge had it wrong,

too.

The State’s misstatements of self-defense law effectively twisted the

presumption of reasonableness in Section 9.32 of the Penal Code into a total bar to

Appellant’s claim of self-defense.

To better demonstrate this, consider the following hypothetical:

Imagine a woman walking down the street, wearing a shirt with a political

slogan on it while carrying a pound of a controlled substance in her purse. A passerby

becomes angry at the message on the woman’s shirt, so he pulls out a gun and points

it at the woman, threatening her. Before the man can pull the trigger, the woman pulls
Cuevas Concurrence - 4

a knife from her pocket and slashes at the man’s wrist. He drops the gun. The woman

is charged with aggravated assault with a deadly weapon.

If the misstatement of law advanced by the prosecutor in Appellant’s case were

applied to these facts, then this woman would not be able to claim self-defense. The

fact that the woman had a pound of drugs in her purse would strip her of the right to

defend herself against the man’s use of deadly force. This is not only legally incorrect,

it is nonsensical.

Under Texas’s self-defense law, the fact that this woman was “committing a

crime” by carrying a pound of drugs in her purse would not preclude her from

claiming self-defense. That she was carrying a pound of drugs means might mean she

is not entitled to the presumption that her use of force was reasonable, but it

absolutely would not prevent the jury from finding that her conduct was justified as

an act of self-defense.

To be clear, this suite of errors seems to have arisen not from malice, but from

a misunderstanding of the law, namely, an honestly, though erroneously held belief

that the presumption language in the Penal Code mandates that someone committing

a crime cannot be legally justified in using force to defend themselves. However, a

good faith misunderstanding of the law can be just as damaging as one held in bad

faith.
Cuevas Concurrence - 5

The jury’s punishment verdict shows the damage this misunderstanding did.

That the jury found sudden passion shows that it found the decedent engaged in

“provocation” that was “not solely the result of former provocation.” TEX. PENAL

CODE § 19.02(a)(2). What was the provocation? It was likely pulling a gun on

Appellant. This may have been the basis of Appellant’s acquittal had the law on self-

defense been explained to the jury correctly by the State and the bench.

With these thoughts, I concur in the judgment.

Filed: April 2, 2026
Publish

Dissent

In the
Court of Criminal Appeals of Texas

════════════
No. PD-0144-25
════════════

Victor Hugo Cuevas, Appellant

v.

the State of Texas

═══════════════════════════════════════
On Appellant’s Petition for Discretionary Review
From the Fourteenth Court of Appeals
Fort Bend County
═══════════════════════════════════════

YEARY, J., filed a dissenting opinion in which
Finley, J., joined and in which Schenck, P.J., joined
only as to Part VI.

This is not an ordinary error-in-the-jury-charge case. In fact, in
my view, there was likely no error at all in the court’s charge to the jury.
CUEVAS – 2

The way I see things, in its zeal to repair another injustice done to the
defendant in this case—namely, misrepresentations by the prosecutor
about a proper understanding of the law, compounded by the trial
court’s refusal to correct those misrepresentations—the Court finds a
non-erroneous jury instruction to have been so harmful that it justifies
reversing and remanding this case for a whole new trial. 1 I believe the
Court is making mistake.
I. What Happened at Trial
Appellant requested that the jury be instructed on the law of self-
defense, and the trial court instructed the jury accordingly. Because the
issue of self-defense was raised by the evidence, and by virtue of the trial
court’s submission of that instruction, the law of self-defense became
“law applicable to the case[.]” TEX. CODE CRIM. PROC. art. 36.14. And
by including the instruction on self-defense, the trial court committed
itself to submitting that law “correctly.” Mendez v. State, 545 S.W.3d
548, 553 (Tex. Crim. App. 2018) (quoting Vega v. State, 394 S.W.3d 514,
515−16 (Tex. Crim. App. 2013)).
As part of the abstract law section of the trial court’s jury

1
The Court gives itself away when it observes that “there is one way to
misuse the presumption-of-reasonableness instruction that could cause serious
harm: if the presumption were conflated with the ability to act in self-defense at all,
that misconstruction could be devastating to a defendant’s self-defense claim.”
Majority Opinion at 22. Judge McClure likewise gives himself away when he asserts
that the prosecutor’s misconstruction of the law, as conveyed to the jury venire in
a slide, “illustrates why we are here[.]” Concurring Opinion at 2.
CUEVAS – 3

instructions on self-defense, the trial court informed the jury about the
part of that law providing for the presumption of reasonableness when
an actor believes his use of deadly force is immediately necessary, under
Section 9.32(b) of the Texas Penal Code. TEX. PENAL CODE § 9.32(b).
The statute establishing the presumption of reasonableness applies only
when certain conditions are met, including when the actor “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.” Id. at (b)(3). Appellant objected to the
inclusion of the abstract instruction, but the trial court overruled his
objection.
II. The Appeal
On appeal, Appellant argued that the presumption-of-
reasonableness instruction was inapplicable to his case because there
was no dispute that he was “engaged in criminal activity . . . at the time
the force was used.” Id. The court of appeals agreed. Cuevas v. State,
___ S.W.3d ___, No. 14-22-00561-CR, 2024 WL 1625753 at *15 (Tex.
App.—Houston [14th Dist.] Apr. 16, 2024). It nevertheless affirmed
Appellant’s conviction, concluding that, “[a]t most, [A]ppellant has
identified purely theoretical, not actual, harm from the erroneous
inclusion of the presumption instruction in the abstract portion of the
charge.” Id. at *17.
III. Appellant’s Petition for Discretionary Review
CUEVAS – 4

In his petition for discretionary review, Appellant asked this
Court to review the court of appeals’ harm analysis. Appellant points to
numerous instances in the record where the State misdescribed the
legal effect of the presumption, and he relies primarily on those
misconstructions of the law relating to the presumption to argue that
inclusion of the instruction on the presumption in the abstract was
harmful in his case. We agreed to review the court of appeals’ harm
analysis.
IV. This Court’s Opinion
Today the Court reverses the judgment of the court of appeals,
finding that the inclusion of the presumption instruction in the abstract
portion of the jury charge resulted in at least some harm. In doing so,
consistent with Appellant’s arguments, it relies substantially on the
prosecutor’s repeated misrepresentation of Section 9.31(b)(3)’s
provision, during voir dire and at various points during closing
argument, suggesting to the jury that if Appellant was engaged in
criminal activity at the time he used force, he was not entitled to rely on
the law of self-defense at all, much less on the presumption of
reasonableness. But all of this presupposes that the trial court actually
ERRED in the first instance to give the abstract presumption-of-
reasonableness instruction.
V. Reversals are Improper in the Absence of Error
For two reasons, I reject that premise. First, it is not clear to me
CUEVAS – 5

at all that the presumption-of-reasonableness instruction should not
have been given in this case. The Court today addresses only whether
the presumption of reasonableness instruction [which was deemed by
the lower court to have been erroneously included in the abstract jury
instructions] resulted in some harm to Appellant. It assumes without
deciding that the record conclusively shows Appellant was in fact
engaged in criminal activity at the time he used force, thus precluding
any possible applicability of the statutory presumption of
reasonableness according to the statute’s text. Majority Opinion at
17−18; see also TEX. PENAL CODE § 9.32(b)(3) (“was not otherwise
engaged in criminal activity . . . at the time the force was used.”). It then
remands the cause to the trial court for a new trial, having found the
assumed error to have been harmful. Id. at 27. But the record very
arguably does not show that Appellant was engaged in criminal activity
at the time he used the force that resulted in his being charged in this
case.
It is one thing for an appellate court to review the harmfulness of
an alleged error, and then to affirm the judgment based on its conclusion
that, even if there was error, it did not affect the jury’s verdict. It is quite
another thing entirely for a discretionary review court to reverse an
appellate court’s affirmance of a conviction (that was based on the
appellate court’s conclusion that any such error was harmless), and
then to reverse and remand for a new trial based on the discretionary
CUEVAS – 6

review court’s determination that the alleged error in the charge was
harmful without also being satisfied that there truly was an actual error
in the first place. No trial court judgment should ever be reversed and
remanded for a new trial without at least a satisfactory judicial
determination of actual error.
I recognize that the court of appeals appears to have found that
the trial court did err by including the abstract instruction on the
presumption of reasonableness in the abstract portion of the court’s
charge to the jury. But I think there is good reason to believe, based on
the evidence presented in this case, that the court of appeals was wrong.
And I am persuaded at this point, despite even Appellant’s own
argument to the contrary, that a rational juror in Appellant’s case could
have found that, by the time Appellant shot the complainant, his own
criminal conduct had come to an end.
According to his own testimony at trial, by the time he shot the
complainant, Appellant had abandoned the marijuana he had originally
intended to sell, and he had extricated himself from the complainant’s
car. If it would have been rational for a juror to credit that testimony,
then the trial court could have concluded that the presumption of
reasonableness counted as “law applicable to the case,” and it could, at
least at its discretion, have properly instructed the jury on that law
regardless of the strategic preferences of the parties. Cf. Grey v. State,
298 S.W.3d 644, 655−58 (Tex. Crim. App. 2009) (Cochran, J.,
CUEVAS – 7

concurring) (a trial court may give a lesser-included-offense
instruction, when raised by the evidence, regardless of the strategically
guided wishes of the parties). And if I am right about all of that, then it
is wrong for this Court to lend its imprimatur to the court of appeals’
at-least-potentially incorrect conclusion by declaring that the trial
court’s alleged error was of such a magnitude that it requires the whole
case to be remanded for a new trial.
The only potential error in the trial court’s presumption-of-
reasonableness instruction under the circumstances present in this case
would have been the trial court’s failure to incorporate the presumption
instruction into the self-defense application paragraph as well.
Appellant did not object on that basis at trial, nor did he complain about
that on appeal. It seems he simply did not want the instruction at all,
beneficial though it might have been in his case.
I recognize that the State did not file a cross-petition for
discretionary review in this case to challenge the court of appeals’
conclusion that there was error in the jury charge. See, e.g., Blasdell v.
State, 470 S.W.3d 59, 62 n.4 (Tex. Crim. App. 2015) (when the State
prevails in the court of appeals but desires to contest that court’s
rejection of one of its arguments, a cross-petition for discretionary
review is “both necessary and appropriate”). Perhaps we should
reconsider that opinion. But, because this Court finds definitively that
the inclusion of the instruction was harmful, I would not simply accept
CUEVAS – 8

the court of appeals’ conclusion regarding the alleged jury charge error
without at least granting review on our own motion to determine
conclusively whether the court of appeals was correct to conclude that
the instruction found no support in the evidence—at all. See TEX. R.
APP. P. 66.1 (Court of Criminal Appeals may review a decision of the
court of appeals “on its own initiative under Rule 67”); 67.1 (Court of
Criminal Appeals may grant review “at any time before the mandate of
the court of appeals issues”).
To do so under circumstances where there is good reason to
believe that there may not have been any error on which to premise this
Court’s conclusion of harm would be an injustice and a waste of
precious judicial resources. It may also mislead future litigants and
judges. Relying on this Court’s opinion in this case, some might
conclude, incorrectly in my view, that the presumption of
reasonableness instruction is never appropriate when the person who is
alleged to have used unlawful force to commit some crime also
committed some other criminal activity at any time anywhere near to
when he claims to have used self-defense, regardless of whether some
rational juror could have concluded he was no longer engaged in
criminal activity at all at the time he used the force.
Second, and in any event, there was nothing wrong with the
abstract instruction that the trial court submitted. The court of appeals
recognized that it was an accurate rendition of the law. See Cuevas, 2024
CUEVAS – 9

WL 1625753 at *15 (“The abstract portion of the charge correctly stated
the law regarding the presumption.”). Assuming, then, as the Court
does today, that the presumption of reasonableness was not in play, this
abstract instruction constituted a “merely superfluous” charge—one
that was unnecessary but purely benign unless it was to have become
activated by inclusion into the application paragraph. Plata v. State, 926
S.W.2d 300, 302−03 (Tex. Crim. App. 1996). This Court long ago
correctly observed that “[t]he inclusion of a merely superfluous
abstraction [one that is conceded to be, and which is undoubtedly,
correct] . . . never produces reversible error in the court’s charge
because it has no effect on the jury’s ability fairly and accurately to
implement the commands of the application paragraph or paragraphs.”
Id.
Superfluous abstract instructions about the law that are correct
only tell a jury something more about the law that they may not have
otherwise known. The jury’s knowledge of that law should never be
presumed to mislead them when such an instruction can only have
enlightened them. Error can occur by directing a jury to rely on such an
abstract but inapplicable legal principle in an application paragraph of a
jury charge. Error can also occur, as it probably did in this case, where
an attorney misrepresents the abstract law to the jury by the attorney’s
arguments; and that is especially true when the trial court overrules a
proper objection to that misrepresentation. But neither of those things
CUEVAS – 10

turns the inclusion of the merely abstract, but correct, jury instruction
into error, however inapplicable to the case the instruction may be.
Moreover, if it is accurate to say that it “never” constitutes
“reversible” error to give an accurate, albeit superfluous, abstract legal
definition, then it makes no sense to call it “error” at all. 2
VI. There Was Error in this Case
None of this is to say that there was not at least possible error that
did occur in this case. As I see this case, error seems to have occurred
in the context of the prosecutor’s uncorrected remarks misconstruing
the law to the jury. To the extent that the prosecutor repeatedly invited
the jury, at various points in the trial, to misconstrue Section 9.32(b)(3)
to be a comprehensive limitation upon Appellant’s statutory right to
self-defense, with the trial court’s imprimatur, that would likely

2
And in some cases, we have in fact held such instructions not to be error.
See, e.g., Smith v. State, 170 Tex. Crim. 518, 520, 342 S.W.2d 445, 446−47 (1961)
(jury charge that broadly instructed the jury on the full law of sodomy “did not
present fundamental error” when the application paragraph limited the jury’s
consideration of the offense to the theory of sodomy “as alleged in the indictment
and made by the facts”); Morris v. State, 144 Tex. Crim. 228, 233, 161 S.W.2d 1090,
1092 (1942) (op. on reh’g) (abstract instruction defining the offense of parental
desertion of a child in terms of the many ways in which it could be committed was
“proper” because the trial court’s application paragraph limited the jury’s
consideration to the particular manner alleged in the indictment); Crenshaw v.
State, 378 S.W.3d 460, 468 (Tex. Crim. App. 2012) (concluding that the inclusion
of an unpled abstract definition of intoxication in the jury charge of a prosecution
for D.W.I. was not error because it “did not expand the allegations against” the
defendant absent incorporation into the application paragraph).
CUEVAS – 11

constitute error—just not error in the jury charge.
Errors during voir dire and jury argument are normally subject to
procedural default principles. There is no statute comparable to Article
36.19 of the Code of Criminal Procedure—the statute that Almanza
construed 3—to save them for appellate review even absent an
objection. Dougherty v. State, 188 S.W.3d 670, 671 (Tex. Crim. App.
2006) (Keller, P.J., dissenting). But perhaps there may be an available
resort to habeas on the premise that trial counsel may have been
ineffective for failing to preserve the claim.
Appellant did complain in the court of appeals of the
prosecutor’s misleading remarks about Section 9.32(b)(3) during voir
dire. The court of appeals assumed those remarks to be error, but it
found any such error to be harmless. Cuevas, 2024 WL 1625753 at 5−6
And Appellant does not appear to have challenged that ruling, per se,
in his petition for discretionary review. Then, there is the prosecutor’s
final jury arguments to consider. But Appellant did not complain
directly about that in his direct appeal, so there is no decision on that
issue for our review at this time. Whatever non-jury-charge error may
have occurred, it all seems to have been forfeited at this point. 4

3
TEX. CODE CRIM. PROC. art. 36.19; Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985) (op. on reh’g).

4
As I read Judge McClure’s concurring opinion, he regards these other
errors to be “the deciding factor in the Court’s determination that error in the jury
CUEVAS – 12

At the very least the Court should remand this case to the court
of appeals for reconsideration of whether there was any actual error in
the jury charge sufficient to justify reversal. The court of appeals based
its agreement with Appellant that there was jury charge error only on
the fact that it was “undisputed” between the State and Appellant that
Appellant was “engaged in criminal activity . . . when he shot Ose.” Id.
But the court of appeals should have considered instead whether the
trial court itself, or any rational factfinder for that matter, could have
concluded that Appellant was not “engaged in criminal activity . . . at
the time the force was used.” See TEX. PENAL CODE § 9.32(b)(3)
(emphasis added).
VII. CONCLUSION
I believe the Court’s holding today does a disservice both to trial
court judges and—perhaps ironically—to criminal defendants as well.
The trial court judge in this case has seen his hard work come to naught,
even though he has made no legal mistake that I can see. The court of
appeals, and by extension this Court as well—through its finding that
the alleged error was harmful—simply disagree with the trial court
judge’s justifiable assessment that a jury could rationally disagree about

charge caused some harm[.]” Concurring Opinion at 1. Reading the balance of his
opinion, however, leaves the distinct impression that it is actually these other errors
themselves that cause Judge McClure to believe Appellant’s conviction must be
reversed, more than any error in the jury charge. But none of those errors are
actually before us in the posture of the case as it comes before us.
CUEVAS – 13

whether Appellant was, in fact, engaged in criminal activity “at the time
the force was used.” Id. And it certainly behooves criminal defendants
in the general run of cases to give trial judges—who were present to
hear and see the evidence first-hand, in all of its nuances—wide latitude
to make such calls without undue appellate interference.
For these reasons, I would not remand this case for a new trial
without at least first granting review on our own motion to determine
whether the court of appeals erred to find error in the first instance.
Accordingly, I respectfully dissent.

FILED: April 2, 2026
PUBLISH