In the Missouri Court of Appeals 

Eastern District

DIVISION THREE 

STATE OF MISSOURI, ) No. ED107254 

 ) 

Plaintiff/Respondent, ) Appeal from the Circuit Court 

) of the City of St. Louis 

vs. ) 

 ) 

CHRISTOPHER ENDICOTT, ) Honorable Jason M. Sengheiser 

 ) 

Defendant/Appellant. ) Filed: February 25, 2020 

Introduction 

 Christopher Endicott (Appellant) appeals from the trial court’s judgment entered after a 

jury found him guilty of second degree murder and armed criminal action. Because the trial 

court committed plain error by failing to instruct the jury on use of force in defense of another, 

the judgment is reversed and the case is remanded. 

Factual and Procedural Background 

 Appellant and several companions were socializing one night at 1860 Saloon in the City 

of St. Louis. Present in Appellant’s group were Dominique Wells (Wells) and Marvin Maggard 

(Maggard); they were later joined by two other friends, Jovan Tucker (Tucker) and Donovan 

Houltan (Houltan). 

 Around 1:30 a.m. the group left the saloon, with plans to move on to a different bar. The 

group planned to travel in two separate vehicles, with Wells driving one and Houltan driving the 

other. As the group left the bar to retrieve their vehicles, they encountered Jarrett Greene 
2 

(Victim). Maggard and Victim recognized one another and greeted each other enthusiastically. 

Witnesses testified both Maggard and Victim appeared to be extremely intoxicated, slurring their 

words, swaying, and nearly knocking one another over as they embraced in greeting. 

 After greeting Victim, Maggard turned to the group and announced, “Hey, y’all, this is 

my homeboy,” and invited Victim to accompany the group to the next bar. The rest of the group 

exchanged glances, which they later testified indicated they did not want to bring the intoxicated 

stranger along with them. Appellant spoke up on the group’s behalf and told Victim he was not 

welcome to accompany them that evening. Wells also told Victim he could not ride with him, 

and returned to his vehicle to wait for Appellant and Maggard. 

 Houltan and Tucker took this as a cue to head towards their vehicle. Maggard and 

Victim, ignoring Appellant’s refusal, made as if to accompany them. When Houltan noticed 

Maggard and Victim about to enter his vehicle, he quickly locked it using his key fob, blocking 

their entry. Appellant, noticing Victim had disregarded his discouragement, came over to 

intervene. According to Houltan, Appellant again told Victim “very politely” he was not 

welcome to accompany them that evening, but perhaps some other night they might all meet up. 

At this Victim became angry, pulled a gun from his pocket, racked it, and pointed it at 

Appellant’s face, saying, among other things, “I trump you.” 

 As Victim pointed his gun at Appellant’s face, Maggard intervened to try to calm Victim. 

As Maggard spoke to Victim, Houltan and Tucker slipped into their vehicle and began driving 

away. However, concerned for their friends, they lingered on the street nearby where they could 

watch and make sure their friends left safely. 

 Maggard was able to mollify Victim, and Victim put away his gun. Appellant and 

Maggard walked towards Wells’ vehicle where Wells waited, sitting in the driver’s seat. Victim 
3 

initially began walking away from the group after the first encounter but turned around and 

approached Wells’ vehicle. Victim first approached the passenger side of Wells’ vehicle where 

Maggard and Appellant stood. Surveillance footage depicted Victim reengage in conversation 

with Appellant, and Appellant raise his arms as if surrendering. Appellant later told police 

Victim again showed him the gun, removed the magazine several inches, and then replaced it in 

the gun. Victim then walked around Wells’ vehicle, opened the rear door, and partially entered 

the vehicle behind Wells. Appellant, who had retrieved his own firearm, circled to where Victim 

was entering Wells’ vehicle, pointed the gun at Victim’s face, and ordered Victim to the ground. 

Victim exited Wells’ vehicle to confront Appellant and swiped at Appellant’s gun with his hand. 

Appellant later told police Victim had his own gun in his hand as he attempted to enter Wells’ 

vehicle and that Victim used his gun to strike out at Appellant’s gun. However, investigators 

testified at trial that Victim’s gun was found in his right pocket with no magazine, and two empty 

magazines were found in his left pocket. Investigators also testified Victim was found holding a 

metallic lighter in his hand. Surveillance footage of the incident showed Victim swing his arm 

towards Appellant, and Appellant fire his gun twice. Victim began to reel backwards and fall, 

and Appellant stepped towards him firing more shots. Victim collapsed in front on Wells’ 

vehicle, and Appellant fired several more shots at Victim. 

 After the shooting, Appellant and the others left the scene. A short time later police 

arrived, finding Victim dead. Police made contact with the saloon owner, who provided police 

with surveillance footage showing the shooting. A search of Victim’s body revealed a Glock 

handgun in his pocket, which was unloaded. Victim’s pockets also contained a digital scale, a 

bottle of vodka, and what appeared to be cocaine. A medical examination of Victim revealed a 

blood alcohol content of .292 and cocaine in his system. 
4 

 Three and a half hours after the shooting, Appellant surrendered himself at a police 

station, along with Wells, Houltan, and Tucker. All four made statements to the police; 

Appellant admitted shooting Victim. Appellant also turned over the gun he used to shoot Victim 

to the police. 

 The State of Missouri (State) charged Appellant with first-degree murder and armed 

criminal action. The case went to trial, resulting in a mistrial due to a hung jury. The case went 

to trial a second time. The jury heard the testimony of the saloonkeeper, several investigators, 

and the testimony of both Houltan and Tucker, who witnessed the encounter. The surveillance 

footage depicting the shooting was played to the jury. Appellant chose not to testify. Neither 

Maggard nor Wells testified. 

In addition to the charged offenses, the trial court instructed the jury on murder in the 

second degree and voluntary manslaughter. The trial court also instructed the jury on use of 

force in self-defense, and self-defense in vehicles. After deliberation, the jury returned a verdict 

of guilty of second-degree murder and armed criminal action. This appeal follows. 

 Additional facts necessary to our analysis appear in the discussion section below. 

Points on Appeal 

 Appellant brings three points on appeal. However, Appellant’s second point is 

dispositive of this appeal. Point II claims the trial court plainly erred by not sua sponte

instructing the jury on use of force in defense of another person. Because we agree the trial court 

plainly erred, we reverse the judgment on this point. 
5 

Standard of Review 

 Although Appellant claims the trial court should have instructed on use of force in 

defense of another, he did not request such an instruction, nor did he include this claim in his 

motion for a new trial. As such, Appellant requests plain error review. 

 Unpreserved instructional errors are reviewed under the plain error standard, and we will 

reverse when a manifest injustice or miscarriage of justice would otherwise result. State v. 

Wurtzberger, 40 S.W.3d 893, 897-98 (Mo. banc 2001). Failure to give a mandatory instruction 

is trial court error, and is grounds for reversal on plain error review. State v. Bolden, 371 S.W.3d 

802, 806 (Mo. banc 2012), citing State v. Westfall, 75 S.W.3d 278, 284 (Mo. banc 2002). “An 

appellate court, when confronted with the argument that the trial court erred in refusing to 

instruct on self-defense, must view the evidence and all reasonable inferences in the light most 

favorable to the defendant.” State v. Miller, 91 S.W.3d 630, 632 (Mo. App. W.D. 2002), 

citing State v. Francis, 60 S.W.3d 662, 673 (Mo. App. W.D. 2001). Whether a use of force 

justification defense has been raised by the evidence is a question of law, which we review de 

novo. State v. Cummings, 514 S.W.3d 110, 116 (Mo. App. W.D. 2017). Self-defense and use of 

force in defense of another are closely-related justification defenses, governed by the same 

statute. Section 563.031.5.1 As such, many cases discussing aspects of one are applicable to the 

other, and are sometimes used interchangeably herein. See Bolden, 371 S.W.3d at 805 (use of 

force in defense of another “is essentially an extension of the self-defense justification”). 

Discussion 

 Appellant claims the evidence adduced at trial warranted an instruction on use of force in 

defense of another, such that the trial court committed plain error by not proffering it, despite the 

 

1

 All statutory references are to RSMo Cum. Supp. 2013, unless otherwise specified. 
6 

defense not requesting it. Specifically, he claims substantial evidence showed Appellant used 

deadly force in defense of Wells, the driver of the vehicle that Victim was attempting to enter. 

The use of force, including deadly force, to protect others is lawful in some 

circumstances under Section 563.031. This Court has previously explained: 

In regard to the concept of self-defense, what one may do for himself, he may do 

for another.... Defense of another is available if, under the circumstances as the 

actor reasonably believes them to be, the person whom he seeks to protect would 

be justified in using such protective force in defense of himself. The 

reasonableness of a defendant’s belief in the necessity of using force is a question 

for the jury. Therefore, whenever there is evidence supporting this defense, this 

instruction must be given. 

State v. Vancil, 976 S.W.2d 628, 630 (Mo. App. E.D. 1998) (citations omitted). 

 The defendant has the burden of injecting the issue of justification into the case; if 

successful, the State bears the burden of proving beyond a reasonable doubt that the defendant 

did not reasonably believe force was necessary. Section 563.031.5. “A justification defense 

must be given when ‘substantial evidence’ has been presented to support it.” Cummings, 514 

S.W.3d at 116. “Substantial evidence” means enough evidence to “put[] a matter in issue.” 

State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003). The evidence may come from the 

defense’s own case, the State’s case, or the testimony of third parties. Cummings, 514 S.W.3d at 

116. “If the evidence tends to establish the defendant’s theory, or supports differing conclusions, 

the defendant is entitled to an instruction on it.” Westfall, 75 S.W.3d at 280. “Moreover, the 

instruction must be given even if the evidence supporting the defense is inconsistent with the 

defendant’s testimony or theory of the case and regardless of whether the defendant requested 

it.” Cummings, 514 S.W.3d at 116. “If a justification defense is injected into the case by any

evidence, the judge must instruct, even if the defendant does not desire such an instruction.” Id. 

at 117 (emphasis in original). “Failure to submit an instruction on a justification defense that is 
7 

supported by the evidence constitutes reversible error.” Id. at 116-17, citing Avery, 120 S.W.3d 

at 200. 

 In order to be entitled to an instruction on use of force in defense of another, substantial 

evidence must show Appellant possessed a reasonable belief Wells himself would have been 

privileged to use deadly force in his own defense. This is established by showing Appellant 

reasonably believed that (1) Wells was not the initial aggressor, and physical force was necessary 

to defend Wells from what Appellant reasonably believed to be the use or imminent use of 

unlawful force by another; (2) Appellant reasonably believed deadly force was necessary to 

protect Wells against death, serious physical injury, or any forcible felony; (3) and Wells did not 

have a duty to retreat. State v. Pounders, 913 S.W.2d 904, 907 (Mo. App. S.D. 1996); see also 

State v. Kendrick, 550 S.W.3d 117, 123-24 (Mo. App. W.D. 2018), citing State v. Bruner, 541 

S.W.3d 529, 536-37 (Mo. banc 2018) (updating elements of self-defense in accordance with 

statute). 

 Our review of the record, in the light most favorable to Appellant, reveals ample evidence 

to support Appellant may have acted in defense of Wells. The evidence at trial shows Appellant 

had taken it upon himself to be spokesperson and defender of the group during Victim’s 

intrusion. Tucker testified that because she was the only female in the group, she was happy to 

have Appellant step forward and speak for her when they encountered the threatening stranger. 

Houltan testified when Victim brandished his weapon and pointed it at Appellant, Houltan was 

standing behind Appellant and in the line of fire. Houltan testified he feared for his life because 

if Victim had shot at Appellant, Houltan likely would have been hit as well. Given that Victim 

was acting intoxicated and belligerent, such a fear was reasonable, and demonstrates Victim had 

menaced not just Appellant but others in the group as well. Tucker testified she assumed 
8 

Victim’s gun was loaded when he racked it, and she and Houltan sneaked by Victim to escape in 

Houltan’s car while Appellant was the focus of Victim’s ire. Houltan testified that after he and 

Tucker made it into the vehicle, they lingered nearby to watch because he feared for the safety of 

“my friends,” meaning Appellant, Wells, and Maggard, who were still in the presence of the 

intoxicated and armed stranger. Houltan also testified that after he heard the gunshots he feared 

Appellant was the one who had been shot because Houltan knew Victim was armed. 

 Although neither Wells nor Appellant testified at trial, sufficient evidence was presented 

from Appellant’s statements to police, the eyewitness accounts of Houltan and Tucker, and the 

surveillance footage of the shooting to show Appellant may have reasonably believed Wells was 

in imminent danger when Victim began entering the car behind Wells. Victim had been told 

more than once he was not welcome to accompany the group. Victim had responded to this 

discouragement by brandishing a gun and threatening deadly force.2

 Uninvited and unwanted, 

the armed Victim began to enter the car behind Wells. Appellant was present as all these events 

occurred, and was able to form a reasonable belief that Wells was in imminent danger from 

Victim. 

 At trial there was conflicting evidence about what transpired at the moment of the 

shooting, but viewed in the light most favorable to Appellant, the evidence supports Appellant 

may have reasonably believed force was necessary to defend Wells. The evidence at trial 

strongly supports that Victim had threatened Appellant with his gun during the first encounter at 

Houltan’s vehicle. Appellant also told police that afterwards, when Victim approached Wells’ 

vehicle, Victim again displayed his gun to Appellant, pulled out the magazine, and offered to 

 

2

 The Missouri Supreme Court has held that brandishing a deadly weapon constitutes “deadly force” because “the 

risk of death or serious physical harm is significantly elevated when one of the parties to an angry confrontation 

displays a handgun.” State v. Parkhurst, 845 S.W.2d 31, 36 (Mo. banc 1992). So it was in this case, as the 

escalation towards the deadly shooting was initiated by Victim’s decision to threaten the group with a gun. 
9 

provide Appellant with the magazine or bullets. Appellant told police Victim then replaced the 

magazine in the gun and walked to the driver’s side of the vehicle and began to enter the back 

seat, with the gun still in his hand. Appellant stated that when he circled the vehicle to confront 

Victim, and when Victim struck at Appellant’s gun, Victim’s gun was in his hand. Tucker 

testified that after the shooting when the group met and discussed the events that had just 

transpired, Wells stated he saw a gun in Victim’s hand as he began entering his vehicle. 

 The State points out that evidence suggesting Victim’s gun was in his hand as he entered 

Wells’ vehicle is contradicted by other evidence; specifically, the surveillance video does not 

show Victim’s gun in his hand at the moment of the shooting, and investigators at the scene 

found Victim’s gun in his pocket unloaded, with two magazines in a different pocket. However, 

this does not defeat Appellant’s claim. As stated above, we review Appellant’s claim by viewing 

all evidence and inferences in the light most favorable to Appellant. Therefore, where the 

evidence conflicts as to whether Victim’s gun was in his hand when he entered the vehicle, we 

view it in the light most favorable to Appellant’s account. This is not to say we must disregard 

the irrefutable physical evidence to the contrary. The surveillance footage depicting the shooting 

continued to record up until police arrived at the scene of the shooting. If Victim’s gun was in 

his hand when he was shot, then there is no reasonable explanation for how investigators 

subsequently found it in his pocket. 

However, this is not dispositive for two reasons. First, our analysis focuses not on what 

the circumstances were, but on how they reasonably appeared to Appellant. Section 563.031.1; 

see also MAI-CR3d 306.08A (“reasonably believe” means grounds for defendant to have formed 

a belief in necessity of force. “This depends upon how the facts reasonably appeared. It does 

not depend upon whether the belief turned out to be true or false.”). Thus, the relevant inquiry is 
10 

not whether it was true or false that Victim’s gun was in his hand, but whether it was reasonable 

for Appellant to have believed it was. Our review of the record shows sufficient evidence to 

support Appellant’s reasonable belief Victim was holding his gun. Victim had brandished his 

weapon at Appellant not once but twice immediately preceding the shooting. Evidence also 

suggests Appellant could have mistaken a metallic lighter in Victim’s hand for Victim’s gun. 

This belief, mistaken or not, may have been reasonable under the circumstances, as it was 

nighttime and the shooting happened very quickly, mere moments after Victim had brandished 

his gun at Appellant and threatened him. 

Second, we note the case does not turn solely on whether Victim’s gun was in his hand, 

or even whether Appellant reasonably believed it was. Wherever the gun happened to be at the 

moment of the shooting, the uncontradicted evidence showed Victim was still armed when he 

began entering Wells’ vehicle. If Victim had decided to use his gun against the vehicle’s 

occupants, he needed only to reach into his pocket to retrieve it. Even if Appellant did not see 

Victim’s gun in his hand, Appellant may have reasonably believed Victim was readily capable of 

retrieving his gun and using it against the vehicle’s occupants. 

The manifest injustice that may be caused by deficient instructions is not limited to the 

instruction phase of the trial. When the jury is incompletely instructed, they are not only 

ignorant of the relevant law but risk being misled by counsel’s argument. See State v. Hiltibidal, 

292 S.W.3d 488, 494 (Mo. App. W.D. 2009) (prosecutor’s argument may compound 

instructional error and mislead jury). Such a risk was present here: During closing arguments, the 

prosecutor pointed out to the jury that Appellant had not withdrawn from the encounter when he 

had an opportunity, but instead had followed Victim to the driver’s side of the vehicle where he 

was attempting to enter. The prosecutor argued the jury may infer Appellant’s guilt from this 
11 

fact, as it showed Appellant did not reasonably fear for his own life because he followed the 

danger instead of fleeing from it. However, at oral argument the State conceded that, although it 

disputed whether Appellant lawfully occupied a vehicle at the time of the shooting, there was no 

question that Wells was lawfully occupying the vehicle Victim was attempting to enter. This 

means under the justification statute Wells would not have had a duty to retreat before using 

force against Victim. Section 563.031.3 (“A person does not have a duty to retreat from a 

dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully 

remaining.”). The State’s argument to the jury thus compounds the instructional error, because 

the jury was not permitted to consider whether withdrawal was an option for Wells, or whether 

Wells even had a duty to withdraw. 

We acknowledge Appellant asked for and received two instructions on self-defense, and 

the jury rejected them both. We also acknowledge a jury could reject Appellant’s claim he acted 

in defense of another on the same or similar grounds. However, where it is supported by the 

evidence, an instruction on use of force in defense of another must be given, even where it is 

inconsistent with Appellant’s defense at trial. Cummings, 514 S.W.3d at 117. Instructing on 

other theories of justification in no way obviates the trial court’s obligation to instruct on all

theories of justification supported by the evidence. State v. Jones, 627 S.W.2d 322, 323 (Mo. 

App. W.D. 1982). Without proper instructions, we are left to conjecture on whether the jury 

found Appellant guilty on a correct and lawful basis. Because the jury was not given an 

instruction on the issue of whether Appellant acted in lawful defense of Wells, they were unable 

to consider all legal theories supported by the evidence under which Appellant’s action may have 

been justified. Such an error is reversible under a plain error standard. Hiltibidal, 292 S.W.3d at 
12 

495 (“Once there is a finding of error in failing to properly instruct on self-defense, a manifest 

injustice will generally be found.”). 

“The defense-of-others justification is essentially an extension of the self-defense 

justification, in that the actor may do in another’s defense anything the person himself may have 

lawfully done in the circumstances.” Bolden, 371 S.W.3d at 805 (citations omitted). “It follows 

that, if the defendant carries the burden of introducing substantial evidence to support a defenseof-others instruction, it is error for the trial court to fail to submit a defense-of-others instruction 

to the jury just as it is error to fail to submit a self-defense instruction.” Id. “A trial judge may 

not immediately recognize the need for a self-defense instruction in a case where no notice had 

been given to the judge that self-defense would be an issue.” Hiltibidal, 292 S.W.3d at 494. 

“Nonetheless, this case illustrates the substantial burden placed on the trial court to be alert to 

evidence raising the issue of self-defense.” Id. Here, sufficient evidence was adduced at trial to 

raise the issue of use of force in defense of another, which, under well-established precedent, 

rendered its instruction mandatory. 

Nevertheless, the State argues that, notwithstanding the ample precedent invoked by 

Appellant, trial courts in fact have no obligation to instruct the jury on justification defenses 

when unrequested by the defendant. In support of this proposition, the State directs the Court’s 

attention to a footnote in this Court’s prior case, State v. Isbell, 524 S.W.3d 90, 93 n.4 (Mo. App. 

E.D. 2017): 

We express reservations regarding Defendant's claim, because the subsequent 

statutory history appears to have abrogated [the duty of the trial court to sua 

sponte offer self-defense instructions]. The former statutes, upon which this duty 

was premised, mandated trial courts to instruct upon all questions of law arising in 

the case, “whether requested or not.” See Section 5231 (1909), Section 4025 

(1919), Section 3681 (1929), Section 4070 (1939), Section 546.070 (1949), 

546.070 (1978). This directive was removed by the Missouri Legislature in 

1984. See Section 546.070 (1986), Section 546.070, RSMo Cum. Supp. 2015. 
13 

Missouri Supreme Court Rules have also eliminated similar mandates. 

Compare Rule 26.02(6) (1966) with Rules 27.02 (2016) and 28.02 (2016). 

 There are several problems with the State’s reliance on State v. Isbell. For example, as 

the State acknowledges, this footnote is dictum. In Isbell, this Court ultimately found the 

defendant was not entitled to an instruction on self-defense because such an instruction was not 

supported by substantial evidence. Id. at 94. Thus, the issue of whether the trial court was 

obligated to sua sponte instruct on self-defense on the basis of substantial evidence at trial was 

not before this Court. 

We are hesitant to follow the dictum in Isbell, as it would mean contravening precedent 

from the Missouri Supreme Court, which we are without authority to do. See Bolden, 371 

S.W.3d at 805; Westfall, 75 S.W.3d at 280-81, 284 (“Failure to provide the required instruction, 

or give it in accordance with an accompanying Note on Use, may have adversely influenced the 

jury and is reversible error.”). Further, such a holding from this Court would conflict with the 

Missouri Approved Instructions for criminal law. Use of force in defense of another is included 

in the MAI–CR3d 306.00 series titled “INSTRUCTIONS REQUIRED WHETHER 

REQUESTED OR NOT.” The notes on use accompanying the instruction mandate, without 

qualification, “Whenever there is evidence supporting this defense, this instruction must be 

given.” MAI-CR3d 306.08A, n.2.3

 “Failure to give an MAI-CR instruction in accordance with 

an accompanying note on use is error.” State v. White, 58 S.W.3d 627, 633 (Mo. App. W.D. 

2001); Rule 28.02(f).4 A holding from this Court abrogating the trial court’s obligation to 

instruct on use of force in defense of another when supported by the evidence absent a request 

 

3

 This contrasts with other instructions in MAI-CR3d, which explicitly state they are to be given “only upon request 

of the defendant”. MAI-CR3d 308.02, n.2. This distinction adds further support to our view the trial court retains 

an independent duty to deliver mandatory instructions. 

4

 Mo. R. Crim. P. (2018). 
14 

from the defendant would conflict with the Missouri Approved Instructions, contravene the 

authority of the Missouri Supreme Court, and subject trial courts to inconsistent precedents. As 

such, we decline to so hold. 

Finally, the State complains Appellant may not make this claim of error because use of 

force in defense of another was not the defense’s primary theory of the case. However, where 

justification is raised in the evidence, “[t]he judge must give the instruction regardless of whether 

it was requested or not, and regardless of whether self-defense is inconsistent with the 

defendant’s defense.” Hiltibidal, 292 S.W.3d at 494 (citations omitted); see also Cummings, 514 

S.W.3d at 117 (trial court obligated to instruct on defense of others justification even when 

defense objects to the instruction). In short, Appellant does not have a burden to demonstrate 

that use of force in defense of another was his main defense at trial, but only that sufficient 

evidence was injected into the proceedings such that it puts the matter at issue, and may form the 

basis of acquittal. 

Conclusion 

Because substantial evidence was adduced at trial to warrant an instruction on use of 

deadly force in defense of another, the trial court committed plain error by not offering such an 

instruction to the jury. Therefore, the judgment of the trial court is reversed, and this matter is 

remanded for a new trial.5

 

5

 Appellant’s first point on appeal claims the trial court plainly erred by failing to sua sponte define the term “lawful 

occupancy” in the instruction submitted to the jury regarding use of force in defense of an occupant of a vehicle. 

Appellant concedes he did not request the trial court define “lawful occupancy” for the jury, and thus did not 

preserve this error for review. Not only did Appellant not supply the trial court with a proposed definition for 

“lawful occupancy”, but he also did not supply this Court with one. The trial court did not plainly err by not defining 

a term which is undefined in the pattern jury instructions because the notes on use explicitly forbids it. MAI-CR3d 

333.00, n.2.F. Deviation from approved instruction forms and accompanying notes on use by the trial court is 

presumptively erroneous; therefore, the trial court did not plainly err by adhering to them. White, 58 S.W.3d at 633; 

Rule 28.02(f). 
15 

 

 SHERRI B. SULLIVAN, J. 

Mary K. Hoff, P.J., and 

Angela T. Quigless, J., concur.