Opinion issued June 4, 2024

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-23-00527-CR

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ELIJAH KALUANYA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1739848

MEMORANDUM OPINION

Elijah Kaluanya appeals his murder conviction. In one issue, he argues the 

trial court erred in allowing the prosecutor to make an improper jury argument. 

Because we conclude the error did not affect his substantial rights, we affirm the trial 

court’s judgment.
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BACKGROUND

On the morning of September 14, 2021, appellant Kaluanya and complainant 

Demrick Thomas got into a heated argument in a gas station parking lot. Their cars 

were parked next to each other. Kaluanya’s girlfriend was in the driver’s seat of his 

car, and Kaluanya was in the passenger seat.

Kaluanya believed that when Thomas opened his car door, he bumped into

Kaluanya’s car. The two men started yelling at each other, and the argument 

escalated quickly. Thomas started to pull out of his parking space, then stopped his

car and got out. At that time the passenger in Thomas’s car began recording the 

incident with her cell phone. As Thomas approached Kaluanya’s car, Kaluanya 

testified that Thomas was yelling aggressively, screaming, and reaching for his 

waistband. Kaluanya’s girlfriend, who was in the driver’s seat of his car, also 

testified that she saw Thomas reach behind his back. Fearing that Thomas was 

reaching for a gun, Kaluanya got out of his car and shot Thomas multiple times. 

Kaluanya then quickly got back into his car, and his girlfriend drove away. Thomas 

died from his injuries. In total, he had 22 gunshot wounds. Thomas did not have any 

weapons on his person or in his car.

At trial, Kaluanya did not dispute that he shot Thomas or that Thomas died 

from those injuries. Instead, he argued he shot Thomas in self-defense. The jury 
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found Thomas guilty of murder, implicitly rejecting his self-defense theory, and the 

trial court assessed his punishment at 50 years’ imprisonment.

DISCUSSION

In his only appellate issue, Kaluanya argues the trial court erred in overruling 

his objection to the prosecutor’s improper jury argument. During the State’s closing 

argument, one of the prosecutors argued: 

[PROSECUTOR]: [I]f you want to find this defendant not guilty, you 

do have to say that [Thomas] deserved to die. By saying self-defense 

applies in that situation, you have to say, as Harris County, we want to 

say that Demrick Thomas deserved to die on September 14th, 2021.

[DEFENSE COUNSEL]: Objection, Your Honor, improper jury 

argument.

THE COURT: Overruled.

[PROSECUTOR]: That he deserved to die when he responded to the 

defendant’s request to get out of the car, . . . that he deserved to be shot. 

That is what a verdict of not guilty would say.

And not just one shot, right? You would have to believe that Demrick 

deserved every single one of those shots that this defendant fired again 

and again and again as he’s moaning on the ground, dying.

On appeal, Kaluanya claims the trial court erred by allowing this argument 

because it was outside the permissible areas of jury argument and because the 

prosecutor misstated the law on self-defense.

The four proper areas of jury argument are: (1) summation of the evidence; 

(2) reasonable deduction from the evidence; (3) answer to an argument of opposing 

counsel; and (4) plea for law enforcement. Milton v. State, 572 S.W.3d 234, 239 
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(Tex. Crim. App. 2019). Assuming the prosecutor’s argument was error, we 

conclude the error did not affect Kaluanya’s substantial rights and therefore is not

reversible.

Generally, improper jury argument is non-constitutional error that we must 

disregard unless it affects the defendant’s substantial rights. See TEX. R. APP. P.

44.2(b) (any error that does not affect substantial rights must be disregarded);

Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011) (improper jury 

argument is generally non-constitutional error that must be disregarded if it does not 

affect substantial rights); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

1998) (applying Rule 44.2(b) non-constitutional error standard to closing argument 

falling outside areas of permissible jury argument).

Kaluanya argues that this error is constitutional because the prosecutor urged 

the jury to consider matters not before them, violating the Due Process Clause of the 

Fourteenth Amendment. See U.S. CONST. amend. XIV. However, this is the same 

type of error the Court of Criminal Appeals found in Freeman v. State, and in that 

case, the Court explained that “[i]mproper-argument error of this type is nonconstitutional in nature.” Freeman, 340 S.W.3d at 728 (concluding prosecutor’s 

closing argument that referred to facts that were neither in evidence nor inferable 

from evidence was improper but non-constitutional error); see also Martinez v. State, 

17 S.W.3d 677, 692 (Tex. Crim. App. 2000) (“Comments upon matters outside the 
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record, while outside the permissible areas of jury argument, do not appear to raise 

any unique concerns that would require us to assign constitutional status. We shall 

therefore apply the standard of harm for nonconstitutional errors.”). Therefore, we 

apply the non-constitutional-error standard and must disregard the error unless it 

affected Kaluanya’s substantial rights. See Freeman, 340 S.W.3d at 728.

To determine whether an error affects a defendant’s substantial rights and is 

thus reversible, “we balance the severity of the misconduct (i.e., the prejudicial 

effect), any curative measures, and the certainty of conviction absent the 

misconduct.” Id.

In evaluating the first factor, the severity of the misconduct, we look at the 

entire record of closing arguments and consider whether the argument is “extreme 

or manifestly improper” and shows a “willful and calculated effort on the part of the 

State to deprive [the] appellant of a fair and impartial trial.” Brown v. State, 270 

S.W.3d 564, 573 (Tex. Crim. App. 2008) (quoting Cantu v. State, 939 S.W.2d 627, 

633 (Tex. Crim. App. 1997)).

Kaluanya argues the improper argument was severe misconduct because the 

prosecutor used language aimed at inflaming the jury and misstated the law of selfdefense. But this improper argument was “a very small portion” of the State’s 

closing argument. See Freeman, 340 S.W.3d at 728. In the first part of the State’s

closing argument, one of the prosecutors directed the jury to look at the jury charge 
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and discussed the charge’s instructions on self-defense at length, and none of this 

discussion drew any objections. After defense counsel gave his closing argument, a 

second prosecutor made a closing argument and again directed the jury to look at the 

charge and its definition of self-defense. She continued to discuss self-defense and 

argued it did not apply in this case, drawing no objections, until she made the brief 

improper argument at issue here. She then went on to summarize the evidence of 

Thomas’s injuries and urged the jury to rewatch the cell phone video of the shooting. 

She played the video for the jury, summarized its contents, and argued self-defense 

did not apply, again drawing no objections in her discussion of self-defense. Thus, 

after making the improper argument, she “moved on and did not dwell on the 

matter.” Brown, 270 S.W.3d at 573.

Kaluanya argues the improper argument was severe misconduct because the 

prosecutor misstated the law of self-defense, which impacted the jury’s view of the 

State’s burden of proof, citing Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 

1990). In Whiting, the Court of Criminal Appeals held the trial court erred in 

overruling the defendant’s objections to the prosecutor’s “deliberate and repeated 

misstatements of the burden of proof on the issue of self-defense.” Id. After 

determining there was error, however, the Court did not conduct a harm analysis, 

instead remanding that issue to the court of appeals. Id. at 49. Therefore, Whiting

supports Kaluanya’s position that the prosecutor’s argument was improper and the 
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trial court erred in overruling his objection, but Whiting does not address whether 

this type of error is severe misconduct.

In a case that actually decided the question of whether a prosecutor’s 

misstatement of the burden of proof was severe misconduct, the court concluded 

that, because multiple sources correctly explained the burden of proof to the jury, 

the prosecutor’s improper argument was “not severe.” Newby v. State, 252 S.W.3d 

431, 438 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (concluding 

prosecutor’s improper argument changing burden of proof was not severe in light of 

trial court properly explaining burden of proof in jury charge, defense counsel 

properly explaining burden in closing argument, and jury charge properly explaining 

burden). Here, the trial court read the correct burden of proof as stated in the jury 

charge, both the prosecutor and defense counsel urged the jury to read the jury charge 

closely, and the charge itself correctly explained the burden of proof regarding selfdefense. In light of these multiple sources correctly explaining the burden of proof, 

the prosecutor’s improper argument here is likewise not severe misconduct. See id.

Kaluanya also argues the prosecutor’s improper argument was severe

misconduct because the comments were striking at the defendant over the shoulders 

of his counsel. A prosecutor strikes at a defendant over the shoulders of his counsel 

when the prosecutor makes an “uninvited and unsubstantiated accusation of 

improper conduct directed at a defendant’s attorney.” See Mosley, 983 S.W.2d at 
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258 (quoting Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990)). This

type of argument is improper. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 

2010). Here, the prosecutor’s improper comments were not directed at defense 

counsel and did not mention defense counsel, directly or indirectly. Therefore, the 

prosecutor was not striking at the defendant over the shoulders of his counsel. See, 

e.g., Acosta v. State, 411 S.W.3d 76, 93–94 (Tex. App.—Houston [1st Dist.] 2013, 

no pet.) (concluding prosecutor did not strike at defendant over shoulders of his 

counsel where prosecutor’s argument did not attack defense counsel personally); cf. 

Gomez v. State, 704 S.W.2d 770, 772–73 (Tex. Crim. App. 1985) (holding 

prosecutor was striking at defendant over shoulders of his counsel where prosecutor 

argued defense counsel brought in witnesses to manufacture evidence and would do 

anything to get his client “off the hook”); Bell v. State, 614 S.W.2d 122, 123 (Tex. 

Crim. App. [Panel Op.] 1981) (holding prosecutor was striking at defendant over 

shoulders of his counsel where prosecutor argued that defense counsel did not have 

same duty as prosecutor, he represented criminals, and he tried to have his client 

acquitted even if that meant presenting witnesses who were lying); Lopez v. State, 

500 S.W.2d 844, 846 (Tex. Crim. App. 1973) (holding prosecutor was striking at 

defendant over shoulders of his counsel where prosecutor argued that defense 

counsel and defendant were lying when they entered plea of not guilty).
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Looking at the entire record of closing arguments, we conclude the error here 

was not so severe as to constitute a willful and calculated effort by the State to 

deprive Kaluanya of a fair and impartial trial. See Brown, 270 S.W.3d at 573. The

first factor weighs in favor of the State.

Second, looking at curative measures, the trial court did not sustain defense 

counsel’s objection or instruct the jury to disregard. However, the jury charge 

correctly described the law on self-defense, the trial court read court read the correct 

law as stated in the jury charge, and both the prosecutor and defense counsel urged 

the jury to read the jury charge closely. See Hawkins v. State, 135 S.W.3d 72, 84 

(Tex. Crim. App. 2004) (considering correct jury charge as curative measure). Thus, 

this factor does not weigh in favor of the State or Kaluanya.

Lastly, Kaluanya’s conviction absent the misconduct was extremely likely

because the evidence supporting his conviction was strong. The State’s evidence 

included a cell phone video that showed Kaluanya shooting Thomas 22 times, even 

after Thomas fell to the ground. Kaluanya did not deny that he shot and killed 

Thomas. Instead, he argued that he did so in self-defense. However, the only 

evidence offered to support his self-defense theory was his testimony and his 

girlfriend’s testimony that Thomas was yelling at them, threatening them, 

approaching them aggressively, and reaching for his waistband. Neither Kaluanya 

or his girlfriend testified that they saw Thomas with a weapon or that he used or 
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attempted to use force against them of any kind. See TEX. PENAL CODE § 9.32(a)

(stating use of deadly force against another is justified if person reasonably believes 

deadly force is immediately necessary to protect himself against another’s use or 

attempted use of unlawful deadly force); id. § 9.31(b) (stating use of force against 

another is not justified in response to verbal provocation alone). Therefore, given the 

correct statement of law in the jury charge and the evidence presented, the jury was 

likely to conclude Kaluanya was not justified in using deadly force against Thomas. 

His conviction was thus extremely likely, even without the allegedly improper 

argument by the prosecutor. This factor weighs in favor of the State.

In light of the lack of severity of the prosecutor’s misconduct, the correct 

statement of law regarding self-defense in the jury charge, and the extreme 

likelihood of Kaluanya’s conviction absent the misconduct, we conclude the error 

did not affect Kaluanya’s substantial rights and must be disregarded. See TEX. R.

APP. P. 44.2(b); Freeman, 340 S.W.3d at 728. We overrule Kaluanya’s sole issue on 

appeal.

CONCLUSION

We affirm the trial court’s judgment.

Gordon Goodman

Justice
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Panel consists of Justices Goodman, Landau, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).