Affirmed and Memorandum Opinion filed April 2, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00068-CR

SEAN STROUT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1591084

M E M O R A N D U M O P I N I O N

A jury found appellant Sean Strout guilty of murder and assessed 

punishment at thirty-five years confinement in the Texas Department of Criminal 

Justice—Institutional Division. Appellant’s theory at trial was that he acted in 

self-defense. See Tex. Penal Code § 9.32. In a single issue, he contends the trial 

court erred by omitting an instruction on the presumption of reasonableness from

the jury charge. We affirm.
2

Background

Appellant and Lance Frazier went to the home of the complainant late one 

night to “party.” Lance left complainant’s house around 1:00 p.m. the next day, 

but appellant stayed. 

Appellant was the only witness to what transpired after Lance left. The 

following is appellant’s version of events. He and complainant hung out at the 

house for the next several hours. While they were in complainant’s bedroom, 

complainant saw a picture on appellant’s phone of appellant with another man that 

complainant knew. Complainant became very angry and punched appellant in the 

head. Appellant ran into the living room, as complainant came after him “fast and 

hard.” Complainant beat appellant to the ground, fracturing his nose. Appellant 

began kicking and yelled out, “Lord Jesus, don’t let me die.” Complainant then 

said, “Bitch, you’re going to die tonight,” and pulled out a gun. Appellant kicked 

the gun out of complainant’s hands, and it fell about two feet away. Appellant 

picked it up and fired the gun once. Complainant backed up but then leaned 

toward appellant, trying to take away the gun. Appellant fired a second time, after 

which complainant grabbed his neck and ran out through the garage. Appellant 

followed, leaving the gun in the garage and walking out into the street, where he 

saw complainant lying face down in a ditch. Appellant said he screamed for help 

four times. He went back into the house to retrieve his backpack, then ran behind 

the house and jumped a fence into a wooded field. Appellant testified that he was 

terrified he would die that night and did not intend to kill complainant.

The State presented evidence that contradicted appellant’s narrative, 

including a witness who heard a total of four gunshots, not two. Frederick Pittman 

lived in an apartment across the street from complainant’s house. Pittman was in 

his kitchen around 8:30 that evening when he heard two gunshots that sounded 
3

close by. He stepped out of his front door to look around but saw nothing. About 

two to three minutes later, he heard two more gunshots that he realized came from 

complainant’s house. He saw complainant lift up his garage door and run out, 

yelling for help before collapsing in the street. Pittman then saw another male 

come out of the garage and walk toward complainant. The other male walked back 

into the garage, then came out again. After standing by the trash can momentarily, 

the other male left through the field behind complainant’s house. Pittman called 9-

1-1. 

The State offered other physical evidence that undermined appellant’s selfdefense theory. There was evidence of a blood trail that began in complainant’s

bedroom followed by bloody footprints. There was also bullet trajectory evidence

inconsistent with appellant’s version of events, and a bullet was found embedded 

in the wall of the garage.

After both sides rested, the trial court instructed the jury on the law of selfdefense as it applies to a defendant’s use of deadly force against another. See Tex. 

Penal Code §§ 9.31, 9.32(a). Based on that law, the trial court instructed the jury 

that a person is justified in using deadly force when the actor reasonably believed 

that the force was immediately necessary to protect himself against another 

person’s use or attempted use of unlawful deadly force. See id. § 9.32(a)(2)(A). 

The court, however, did not additionally instruct the jury on the provisions set forth 

in Texas Penal Code section 9.32(b), which, when the identified facts exist, creates 

a presumption of reasonableness as to an actor’s belief under Subsection (a). See 

id. § 9.32(b). Appellant did not object to the lack of a presumption-ofreasonableness instruction, nor did he request a separate instruction describing the 

provisions in Section 9.32(b). After the charge was submitted, the jury rejected 

appellant’s claim of self-defense, found him guilty of murder, and assessed his 
4

punishment at thirty-five years confinement in the Texas Department of Criminal 

Justice—Institutional Division. The court signed a judgment of conviction 

consistent with the verdict.

Analysis

In a single issue, appellant argues that the self-defense jury instruction was 

reversible error because the trial court omitted a presumption-of-reasonableness

instruction, which caused him egregious harm. 

A. Standard of Review and Applicable Law

A review of jury-charge error involves a two-step analysis. Ngo v. State, 

175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). First, we determine whether 

error exists, and, if so, whether sufficient harm resulted from the error to require 

reversal. Id.

In relevant part, Penal Code section 9.32 states:

§ 9.32. Deadly Force in Defense of Person

(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.

(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:

(1) knew or had reason to believe that the person against whom the 
5

deadly force was used:

(A) 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;

(B) unlawfully and with force removed, or was attempting to 

remove unlawfully and with force, the actor from the actor’s 

habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense 

described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; 

and

(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.

Tex. Penal Code § 9.32(a), (b).

On appeal, the State takes no position whether the trial court correctly 

omitted a presumption-of-reasonableness instruction under section 9.32(b); the 

State defends the judgment on the ground that any error was not egregiously 

harmful. We will presume without deciding that the trial court erred in failing to 

include a presumption-of-reasonableness instruction and will turn to the question 

of harm.

Because appellant did not timely object at trial, reversal is required only if 

the error was fundamental in the sense that it was so egregious and created such 

harm that the defendant was deprived of a fair and impartial trial. Villareal v. 

State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); see Almanza v. State, 686 

S.W.2d 157, 171 (Tex. Crim. App. 1985). Charge error is egregiously harmful if it 

affects the very basis of the case, deprives the defendant of a valuable right, or 

vitally affects a defensive theory. See Almanza, 686 S.W.2d at 171. “This is a 

high and difficult standard which must be borne out by the trial record.” Reeves v. 
6

State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). On appeal, however, neither 

party bears the burden of showing harm or a lack thereof under this standard. 

Villareal, 453 S.W.3d at 433. We will not reverse a conviction under the 

egregious harm standard unless the defendant has suffered “actual rather than 

theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).

We consider: (1) the entirety of the jury charge, (2) the state of the evidence, 

including the contested issues and weight of probative evidence, (3) the arguments 

of counsel, and (4) any other relevant information revealed by the trial record as a 

whole. Almanza, 686 S.W.2d at 171. 

B. Application

1. Entirety of the jury charge

The jury charge omitted the required instruction, and thus the jury would not 

have known that it could have presumed that appellant had a reasonable belief that 

his use of deadly force was necessary if the jury had found sufficient evidence to 

support the presumption. Accordingly, the first factor would weigh in favor of 

egregious harm. Villarreal, 453 S.W.3d at 433.

However, the Court of Criminal Appeals has explained that this factor is 

entitled to less weight when, as here, “a complete jury charge on the presumption, 

in addition to describing the legal force of the presumption itself, would have also 

permitted the jury to conclude that the presumption was inapplicable based on the 

facts of this case.” Id. As in Villareal, the court’s charge in this case correctly 

informed the jury of the law of self-defense generally, including the use of deadly 

force in self-defense. See Tex. Penal Code §§ 9.31, 9.32. The charge provided:

Upon the law of self-defense, you are instructed that a person is 

justified in using force against another when and to the degree he 

reasonably believes the force is immediately necessary to protect 
7

himself against the other person’s use or attempted use of unlawful 

force. The use of force against another is not justified in response to 

verbal provocation alone. A person is justified in using deadly force 

against another if he would be justified in using force against the other 

in the first place, as above set out, and when he reasonably believes 

that such deadly force is immediately necessary to protect himself 

against the other person’s use or attempted use of unlawful deadly 

force. 

. . .

By the term “reasonable belief” as used herein is meant a belief 

that would be held by an ordinary and prudent person in the same 

circumstances as the defendant. 

By the term “deadly force” as used herein is meant force that is 

intended or known by the persons using it to cause, or in the manner 

of its use or intended use is capable of causing, death or serious bodily 

injury. 

When a person is attacked with unlawful deadly force, or he

reasonably believes he is under attack or attempted attack with

unlawful deadly force, and there is created in the mind of such person 

a reasonable expectation or fear of death or serious bodily injury, then 

the law excuses or justifies such person in resorting to deadly force by 

any means at his command to the degree that he reasonably believes 

immediately necessary, viewed from his standpoint at the time, to 

protect himself from such attack or attempted attack. It is not 

necessary that there be an actual attack or attempted attack, as a 

person has a right to defend his life and person from apparent danger 

as fully and to the same extent as he would had the danger been real, 

provided that he acted upon a reasonable apprehension of danger, as it 

appeared to him from his standpoint at the time, and that he 

reasonably believed such deadly force was immediately necessary to 

protect himself against the other person’s use or attempted use of 

unlawful deadly force. 

In determining the existence of real or apparent danger, you should 

consider all the facts and circumstances in evidence before you, all 

relevant facts and circumstances surrounding the offense, if any, the 

previous relationship existing between the defendant and Erron 

Walker, together with all relevant facts and circumstances going to 

show the condition of the mind of the defendant at the time of the 
8

offense, and, in considering such circumstances, you should place 

yourselves in the defendant’s position at that time and view them from 

his standpoint alone.

The charge did not additionally ask the jury to decide whether, in light of the 

circumstances of the case, appellant was entitled to a presumption of 

reasonableness as to his asserted belief that the use of deadly force was 

immediately necessary. See id. § 9.32(b). Although we are presuming this 

omission to be error, we conclude that here, as in Villareal, a complete jury charge 

on the presumption, in addition to describing the legal force of the presumption 

itself, would have also permitted the jury to conclude that the presumption was 

inapplicable based on the facts of this case. Villareal, 453 S.W.3d at 435. For 

example, based on physical and testimonial evidence, the jury might have 

reasonably concluded from the evidence that appellant was the aggressor, 

rendering the presumption of reasonableness immaterial. As we next explain, 

based on the overall state of the evidence discrediting appellant’s self-defense 

theory, we conclude that the omitted presumption instruction did not deprive 

appellant of a fair and impartial trial.

2. State of the evidence

The second factor considers the state of the evidence. The primary evidence 

supporting appellant’s self-defense theory was his testimony that complainant had 

attacked him with a gun and that appellant was afraid for his life. 

Other evidence called into question appellant’s version of events, and the 

jury might have reasonably rejected appellant’s claim as implausible. In the 9-1-1 

recording, Pittman described complainant as yelling for help as he opened the 

garage door, ran outside, and collapsed in a ditch. Pittman also described how he 

heard a “pop” behind complainant as he ran outside. Pittman reported that he saw 

someone else run out of the garage behind complainant, turn back to get something 
9

inside, and then run to the back of the house and into the woods. Appellant 

claimed that he called for help four times loudly outside before running away 

because he was worried complainant was retrieving another firearm from the ditch. 

This is inconsistent with Pittman’s account. 

Critically, physical evidence contradicted appellant’s account that he shot 

complainant in the living room and fired the gun only twice. Testimony 

concerning the autopsy indicated that three bullets struck complainant, two of 

which entered complainant’s neck in the same entry channel in tandem, a situation 

occurring when two projectiles exit the firearm simultaneously. A fourth bullet 

was recovered from the garage floor and there was a bullet hole in the garage door. 

All bullets were confirmed to have come from complainant’s revolver, which had 

DNA evidence on it from both complainant and appellant. Of the six cartridges 

and/or casings, five had a dimpled primer indicating they had been fired. 

While appellant claimed that he shot complainant in the living room, a trail 

of bloody footprints began not in the living room but in complainant’s bedroom 

and led to the garage—where another bullet was found—thus giving rise to a 

reasonable inference that the gun was fired in complainant’s bedroom and in the 

garage. According to the State, the trajectories of the bullets was inconsistent with 

appellant’s story. All of this evidence, together with Pittman’s statement that he 

heard a “pop” behind complainant as he fled the garage, could have supported an 

inference that appellant was the aggressor and had pursued complainant. 

Moreover, appellant’s mugshot taken ten days after the event did not 

indicate that he had sustained the injuries he claimed, such as a fractured nose or 

an eyebrow cut needing stitches. 

Thus, even had the jury been instructed as to the presumption of 

reasonableness under section 9.32(b), we conclude that, because appellant’s claim 
10

of self-defense was relatively weak and contradicted by the physical evidence and 

the entirety of the record, we cannot say that the omission of the instruction 

deprived appellant of a fair trial. We conclude that this factor weighs substantially 

against a finding of egregious harm. See Villarreal, 453 S.W.3d at 439 (factor 

weighed “substantially” against egregious harm when there was significant 

evidence that defendant was aggressor and, “save for appellant’s own statements to 

police, none of the other evidence presented at trial supported a justification 

defense”).

3. Arguments of counsel

The third factor concerns the arguments of counsel. Appellant’s closing 

argument emphasized portraying complainant as the aggressor, and the State’s 

arguments largely urged to jury to reject appellant’s narrative in light of the 

contradictory physical and testimonial evidence. Appellant’s counsel mentioned

the issue of the reasonableness of appellant’s beliefs and actions only once: “[w]as 

it reasonable for him to believe that he might have been killed, that that man was 

going to try and commit murder on him? The answer to that is yes. Is it 

reasonable to use deadly force to protect himself? The answer to that is yes.” And 

the State did not place great emphasis on the reasonableness of appellant’s belief 

that deadly force was immediately necessary; the State asserted that appellant’s 

version was not credible. The reasonableness of appellant’s belief was not the 

main thrust of either defense counsel’s or the State’s arguments. Thus, we find the 

lack of a presumption of reasonableness instruction did not “vitally” affect 

appellant’s self-defense theory. See Villareal, 453 S.W.3d at 440-41. We 

conclude this factor weighs against a finding of egregious harm.

4. Other relevant information revealed by the record as a whole

As for the fourth factor, the record does not contain “other relevant 
11

information that may require consideration,” such as “whether the jury rejected one 

of multiple counts or sent requests for clarification during deliberations.” See

Smith v. State, 515 S.W.3d 423, 431 (Tex. App.—Houston [14th Dist.] 2017, pet. 

ref’d).1 

Conclusion

Having reviewed the relevant factors, we conclude appellant did not suffer 

egregious harm from the omission of a presumption-of-reasonableness instruction.

See Villarreal, 453 S.W.3d at 433, 436, 439. 

We affirm the judgment.

/s/ Kevin Jewell

Justice

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.

Do Not Publish — Tex. R. App. P. 47.2(b)

1 The jury charge for the punishment phase is not contained in our record.