Description: On December 31, 2014, Jeorgina Flores and Rita Dimas, along with
Dimas’s 14-month-old son, were shopping at a Charlotte Russe store inside the
Parks Mall in Arlington, Texas. While there, they encountered Smith blocking an
aisle and talking on her cell phone. They said “excuse me” twice and then went
around her. After they passed her, Smith accused Dimas and Flores of running
over her feet with their cart. Although Dimas and Flores apologized to Smith,
Smith “wasn’t having it” and said, “Come over here and slap me bitch.” This
sparked a verbal confrontation that led to Smith’s knocking off Flores’s hat; the
situation then escalated into a fight between the two. By Smith’s own admission,
Flores got the better of the fight. After patrons stopped the fight, Flores went back
to Dimas but soon returned to the scene of the scuffle to retrieve her hat. Smith—
who was still in the vicinity—then tried to kick Flores and threw a shoe at her that
missed Flores but struck another child in the store. Store employees asked Smith
Meanwhile, Flores and Dimas had independently decided to go elsewhere
and were already outside Charlotte Russe’s front door when Smith burst out 2Although Smith strongly contested the State’s evidence at trial, for purposes of our evidentiary summary, we present the facts in the light most favorable to the verdict. See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
running. Using a store-display stiletto-heeled shoe as her weapon, Smith
attacked Dimas from behind while Dimas was holding her son. Smith first struck
the back of Dimas’s head with the stiletto and then, after Dimas had put her son
down and had turned around, again struck Dimas with the heel but this time in
the forehead, gouging a large hole. After Smith fled the scene, Flores called
911 to notify the police and to request medical help for Dimas.
I. Charge Error
At the trial’s conclusion, the court included a self-defense instruction in the
jury charge but did not include Smith’s requested separate instruction for
apparent danger.3 Smith timely objected to that omission.
In Smith’s first issue, she contends that the trial court erred by not
including the apparent-danger instruction within the jury charge. We disagree.
A. Standard of Review
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine
3Smith had asked that the self-defense instruction include language advising the jury that they could find Smith not guilty if they believed that she had a “reasonable expectation or fear of bodily injury from the use of unlawful force at the hands of Rita Dimas,” and that Smith reasonably believed that “the use of force on her part was immediately necessary to protect herself against Rita Dimas[’s] use or attempted use of unlawful force.”
whether error occurred; if not, our analysis ends. Id. If error occurred, whether it
was preserved then determines the degree of harm required for reversal. Id.
We addressed a similar issue several years ago, stating:
Texas courts have held that when a defendant claims self-defense, his rights are fully preserved (and the concept of “apparent danger” is properly presented) when a jury charge (1) states that a defendant’s conduct is justified if he reasonably believed that the deceased was using or attempting to use unlawful deadly force against the defendant, and (2) correctly defines “reasonable belief.”
Bundy v. State, 280 S.W.3d 425, 430 (Tex. App.—Fort Worth 2009, pet. ref’d)
(citing Valentine v. State, 587 S.W.2d 399, 400–01 (Tex. Crim. App. [Panel Op.]
1979)); see also Lowe v. State, 211 S.W.3d 821, 824–25 (Tex. App.—Texarkana
2006, pet. ref’d) (stating that the requirements also apply to cases not involving
death of the victim).
Here, the trial court instructed the jury that “[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.” This phrasing satisfies the first requirement.
See Valentine, 587 S.W.2d at 400–01; Bundy, 280 S.W.3d at 430. The trial court
also satisfied the second requirement by properly defining “reasonable belief” as
being “a belief that would be held by an ordinary and prudent person in the same
circumstances as the defendant.” See Valentine, 587 S.W.2d at 401; Bundy,
280 S.W.3d at 430. Because both requirements were met, error has not been
shown. We overrule Smith’s first issue and turn to her second.
II. Article 36.28 Error
During deliberations, the jury sent several notes to the court. The first note
requested Dimas’s testimony. The court replied by asking for a more specific
request. The jury then responded, “Request Rita Dimas’[s] testimony as she left
the store. The actions that led to putting down her baby under the State’s direct.”
Smith objected, with her counsel’s stating, “I will object to the fact that this court
has not required a dispute of fact.” The judge then read portions of Dimas’s
testimony to the jury without first requiring that the jury indicate an internal
disagreement about some particular factual issue.4 The trial court also opted to
skip over certain parts of that testimony, selecting what to read and what to omit.
In her second issue, Smith argues that the trial court abused its discretion
when it read Dimas’s testimony to the jury without first requiring a factual dispute
within the jury room. She also argues that the court commented on the weight of
the evidence by picking which testimony to emphasize to the jury. The State
concedes trial-court error but argues that the error was harmless.
4In a third note, the jury requested “Markeita defen[s]e testimony from time she was told to leave the store to the time they started fighting” and “Rita defen[s]e testimony of the above time frame also.” The trial court located that testimony and sent it in to the jury, noting at the bottom of the jury’s final note that “[t]he bailiff has brought you the requested testimony.”
A. Standard of Review
Article 36.28 of the Texas Code of Criminal Procedure provides:
In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness testimony or the particular point in dispute . . . .
Tex. Code Crim. Proc. Ann. art. 36.28 (West 2006). The jurors’ request that
testimony be provided during deliberations “must reflect that the jurors disagree
about a specified part of testimony.” Howell v. State, 175 S.W.3d 786, 790 (Tex.
Crim. App. 2005).
A trial judge’s decision about whether a factual dispute exists among jurors
is reviewed for an abuse of discretion. Id. Discretion is abused when the trial
court’s “decision is so clearly wrong as to lie outside the zone within which
reasonable persons might disagree.” Id. If so, the next step is to conduct a harm
analysis. DeGraff v. State, 934 S.W.2d 687, 688 (Tex. Crim. App. 1996).
We agree with Smith and the State that the trial court abused its discretion
by reading testimony to the jury without first requiring a disagreement. Because
the court’s abuse of discretion is clear, we will analyze whether the error was
harmful. Id. at 688.
1. Categorizing the error: constitutional or not?
We begin by examining whether the harm was caused by a constitutional
or nonconstitutional error. Tex R. App. P. 44.2; Thomas v. State, 505 S.W.3d
916, 924–25 (Tex. Crim. App. 2016). Smith does not claim that the error is
constitutional, and we agree. See Thomas, 505 S.W.3d at 925. We thus apply
the standard under rule 44.2(b) for assessing harm from “other error.” Id. If that
kind of error “does not affect substantial rights,” then it must be disregarded. Tex.
R. App. P. 44.2(b).
2. Factors in determining if Smith’s substantial rights were affected
A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. Thomas, 505 S.W.3d
at 926 (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)).
Conversely, an error does not affect a substantial right if we have “‘fair assurance
that the error did not influence the jury, or had but a slight effect.’” Solomon v.
State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (quoting Reese v. State,
33 S.W.3d 238, 243 (Tex. Crim. App. 2000)).
In making this determination, we review the record as a whole, including
any testimony or physical evidence admitted for the jury’s consideration, the
nature of the evidence supporting the verdict, and the character of the alleged
error and how it might be considered in connection with other evidence in the
case. Thomas, 505 S.W.3d at 927; Motilla v. State, 78 S.W.3d 352, 355 (Tex.
Crim. App. 2002). We may also consider the jury instructions, the State’s theory
and any defensive theories, any emphasis of the error on the State’s part, closing
arguments, and even voir dire, if applicable. Motilla, 78 S.W.3d at 355–56.
3. Examining the entire record
Here, the defense’s case was built on asserting that Smith acted in self
defense during the fight outside the store, after which she retreated to avoid
harm from Dimas and Flores. The jury-requested testimony from Dimas
conflicted with the defense’s theory but did not conflict in any meaningful way
with other evidence. In particular, Dimas’s testimony did not conflict with Yaritza
Martinez, a Charlotte Russe employee, testified that after the initial scuffle
between Smith and Flores, Smith grabbed a stiletto from inside the store and
then ran out in pursuit of the two women. Martinez described Smith as enraged.
According to Martinez, Smith hit Dimas from behind while Dimas was holding her
child. When Dimas turned to face Smith, Smith firmly planted the stiletto into
Dimas’s forehead.5 When asked if either Dimas or Flores was “the aggressor
toward the defendant” outside the store, Martinez replied “no”; she also stated
that Smith’s attack looked intentional. Although certainly damaging, Martinez’s
testimony was not the only evidence that conflicted with Smith’s defensive
The outside-the-store surveillance video does little to support Smith’s
position. Unfortunately, because the store’s entrance is off screen, the video
does not show what happened when Smith first exited the store. The video does,
5The shoe in question had a four-and-a-half-inch heel.
however, show Smith backing away in a combative posture (or “post[ing] up” as
Martinez described it, meaning “let’s fight, let’s do it”), stiletto in hand, facing the
direction from which both Dimas and Flores later appear. Dimas briefly pursues
Smith but stops. Because the video does not show Smith striking Dimas, by this
point in the video Dimas is already injured.6
In contrast, Flores—despite having at some point picked up Dimas’s
child—pursues Smith far more energetically. As Flores and the child move
behind a column, the video loses sight of them, but when Flores emerges from
the other side of the column, she no longer has the child and tries to engage
Smith.7 A security officer and others in the crowd then prevent Smith and Flores
from striking each other.
The video confirms that Dimas and Flores were there with a small child. It
further confirms that Smith was the only person armed with a weapon—the
stiletto. Finally, it shows Smith did not try to escape but remained within sight of
both Dimas and Flores.
To believe Smith’s version of the events and after viewing the video, the
jury would have had to believe that two women with a small child picked a fight
with a stiletto-wielding woman. The jury also would have had to come up with
some explanation for Smith’s remaining within sight of Dimas and Flores rather
6Dimas testified that the video starts after Smith struck her.
7Flores said she set Dimas’s son down.
than using the opportunity shown in the video to make her escape from their
alleged aggressions. In contrast, to believe the State’s version the jury had to
believe that Smith had just unleashed, off camera, an unprovoked and violent
attack on Dimas, that Smith separated herself from Dimas and Flores to avoid
their anticipated retaliation (Smith acknowledged that she had gotten her “hiney
kicked” in the store earlier), that Flores—with a small child and weaponless—
pursued Smith out of anger and outrage rather than out of a predatory desire to
bully Smith, and that the security officer and various bystanders intervened—on
Smith’s behalf—before Flores and, to a lesser extent, Dimas could retaliate.8
Although the video is open to contrary interpretations, especially in
conjunction with Martinez’s testimony it is far more consistent with the latter
scenario than the former.
Smith’s later conduct also fits with her being the aggressor. Smith left the
scene before the police arrived, not staying to file a complaint against Dimas and
Flores. Nor did she stay there to explain to the police that she had struck Dimas
in self-defense. In short, unlike Dimas and Flores, who remained at the scene,
Smith did not behave like a victim.
To the extent Smith argues that certain portions of Dimas’s testimony read
to the jury were nonresponsive and were comments on the weight of the
evidence, trial counsel did not object on that basis. See Neal v. State, 8Flores, after seeing Smith assault Dimas, admitted she was angry and “riled up.”
108 S.W.3d 577, 579 n.2 (Tex. App.—Amarillo 2003, no pet.). Even if this
argument was preserved, though, we note that the court also provided part of
Smith’s own testimony—the portion in which Smith testified about what
happened after she left the store—to the jury in response to its third note. By
committing the same error (of not requiring a factual disagreement) to Smith’s
benefit, the trial court gave neither side an unfair advantage. Cf. DeGraff v. State,
944 S.W.2d 504, 507–08 (Tex. App.—Houston [14th Dist.] 1997) (holding that
reading back only State’s witness’s testimony bolstered the prosecution’s case
and was thus harmful), aff’d, 962 S.W.2d 596 (Tex. Crim. App. 1998).
Having reviewed the entire record, we hold that the error was not harmful.
The State’s case did not rest exclusively, or even largely, on Dimas’s requested
testimony. Any harm from Dimas’s testimony provided in response to jury note
two was balanced by the court’s erroneously providing Smith’s counterbalancing
testimony in response to jury note three. After considering the entire record, we
have fair assurance that the error did not influence the jury or had only a slight
effect; hence, the error was harmless. See Thomas, 505 S.W.3d at 927. We
overrule this issue.