## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00130

- CR

JAMES HENRY ELROD, III , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 29421

Befor e Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION A Lamar County jury convicted James Henry Elrod, III , of the capital murder 1 of Eddie
Hostetler and Cassie Head . In accordance with the jury’s assess ment of punishment, the trial court sentenced Elrod to life in prison without the possibility of parole. Elrod appeals , claiming
that the trial court erred (1) in denying his motion to sup press because he validly invoked his right to cou nsel , 2 (2) in fai l i ng to includ e a self

- defense instruction with regard to both Hostetler
and Head , (3) in failing to include a defense

- of

- third

- person instruction , and ( 4 ) in failing to
include an instruction on the lesser

- included offense of murder with regard to He ad an d
H ostetle r. Because we find that the trial court (1) did not err in refusing to suppress the recording of Elrod’s interrogation , (2) did not err in declining to give the requested defensive
instructions , and ( 3 ) did not err in fail ing to i nclude an instr u ction on the lesser

- included off ense of murder in the jury charge, we affirm the trial court’s judgment.
I. Background
Te xas Ranger Stacey McNeal was called to the scene of the double homicide of Hostetler
and Head by the Lamar C ounty Sh eriff’s O ffice

. When McNeal arrived at the resi dence outside of Tigertown in the northwestern part of Lamar County , the first thin g he noticed was a strong
odor of what he believed to be human decomposition

. Head’s body had alr eady been discovere d by s h eriff’s deputies on the floor in the closet of th e master bedroom. The body was covered
with articles of cloth ing and bags in what appeared to be an attempt to conceal it

. A dog food

1 T EX

. P ENAL C ODE A NN

. § 1 9.0 3(a)(7) (Supp.)

.
2 Elro d claims in his brief that he invoked his Sixth Amendment right to counsel. Nevertheless , the briefing relies primarily on Fifth Amendment right to c ounsel ju rispru d e nce, as is approp riate

.3

sack had been pulled over the h ead. The medical examiner disco vered a gunshot wound to the
forehead and determined that to be the cause of death

. McNeal believed that the body had been
moved to the closet after Head was killed. He opined that the murders happened on or before April 21, 2021 , several days before the bodies were discovered. Hostetler’s body was discovere d in an equipment shed affixed to the carport approximately one hour after Ranger McNeal arrived on the scene. The body was concealed by
tools a nd equipment , and a dog f ood sack had been tied o ver the hea d

. The m edical e x amine r discovered a gunshot wound to the fore head and determined that to be the cause of death.
Hostetler’s car was unaccounted for.
The unaccounted

- for car was a 2008 Cadillac loaned to Hostetler by his mother so that
Host etler could drive El rod and h is wife , Carolyn Elrod , to Oklahoma

. Elrod did n ot have permission to use the Cadillac. Elrod was arrested in McCurtain County, Oklahoma , on April 28, two days after the bodies were discovered

. Carolyn did not testif

y at trial

. C ons equen tly , the o nl y other living eyewitness to what happened in the Hostetler residence was El rod. At trial, Elrod testified that he met Hostetler
when Hostetler came to a party at his house in Idabel, Oklahoma , in January 2021, although h e had known hi m before that time. 3 During the course of the party, Hostetler off ered Elro d employment as a mechanic in Tigertown. As a result of that agreement, Elrod and Carolyn moved to Tigertown , where Elrod worked as a mechanic for Hostetler and Ca rolyn worked as
H o stetler ’s housekee p er. The couple stayed in Hostetler’s re sidence with him as compensation

3 A t t he party, Elrod and Hostetler smok ed methamphe tamine together. Elrod admitted that he was a methamphetamine addict.4

for their work. At some point, Hostetler brought Head home with him. Elrod had known Head
for a number of years because they were both from M t. Herman, Oklahoma.
In A pril 2021, H ostetler told Elrod th at he needed to leave becaus e his mother did not

want Elrod and Carolyn staying in the house. Hostetler was planning to drive Elrod and Carolyn
back t o Oklahoma and borrowed his mother’s Cadillac for th at purpos e
. Elro d was working
outside when Hostetler returned with the Cadillac a n d entered the house

. Eventually, Elrod
entered the house to check on Carolyn’s progre ss in packing for the trip. When Elrod entered his bedroom, he found Head holding Carolyn d ow n a s Hos tetler was sex u a lly assaulting Carolyn. Elrod stated that he pul l e d Hostetler out of the roo m and that He ad jumped over him to try to get
out of the room. After he checked on Carolyn , Elrod started looking for Head and Ho stetler.
He discover ed Head in the master be d r oom laughing at him. Head had not spoken, b ut
was sti l l giggli ng, when Elrod picked up a wrench, threw it at her, and hit her in the head. After having offered that testimony, Elrod stated that Head w as reaching for something as she wa s laughi ng at him

. He testified that he did no t “ know what she wa s reach i n g for ” but that he believed it was a weapon. Head stood up and looked at Elrod as he threw the wrench. When the
wrench struck her, she fell to the floor in fro nt of the dre sser. A fte r Head f ell t o the floor, she
said nothing , and she was not moving.
Af t e r that, Elrod “went looking” for Hostetler. He found Hostetler in the shed where Hostetler was holding a hammer in his hand. Hoste tler did not say anyth ing to Elrod as Elrod

appro ached ; i nstea d , he giggled. According to Elrod, Hostetler “c [ a ] me towa rd ” hi m as Elrod “picked up the other shop hammer ,” threw it at Hostetler , and “ hit him in the head with it.”5

Hostetler fell to the ground and di d not speak . Elrod “didn’t s tick around long en ough t o see if
he was moving anymore.” Instead, he returned to t he h ouse to check on Carolyn. At some point , he felt the need to protect himself becaus e he “didn’t know if t hey was going to get back up or not.” Elrod testified that h e “ f eared f o r [his] life the whole time.” When Elrod entered the house through the k it ch en, he saw a .22 rifle with ammunition lay ing on the

ta ble. He took the rifle and went to the bedroom where Head laid, motionless , on the floor.
Elrod testified that he shot Head because he “ didn’t want them to get up . . . and try to harm [ him] or [his] wife. ” He stated, “ I was fearin g fo r my life.” Next, Elrod returned to the shed where Hostetler was l aying where he fell following the
hammer blow to the head. El rod shot Hostetler with t he rifle. Elrod returned to the house, threw
the rifle onto the couch , a nd told Carolyn to get i n th e car. Twe nty minutes later, after Elrod finished loading the car, he and Carolyn left

. Elrod denied moving Head ’s body and deni ed placing a dog food sa c k over her head. Elrod te stified that he left both Head and Hostetler as
th ey were after he shot t he m
. He and Carolyn drove to Nancy Russell’s house in Idabel , where
Elrod was e ventually arrested. Elrod testified that he had not used meth amphetamine o n the day
of the murders an d that he was clea rheaded at the time

. On cross

- examination, Elrod a dm it te d that, since he already had the keys to the Cadillac before the shootings, he could have gotten in the car and left without sho oting Hostetler and
Head

. Elrod furt her admitted t hat Hostetler, while lying on the ground before he was shot, was
unable t o hu r t him.6

Elrod’s son, Dallas Elrod , testified that Elrod came to see him in Broken Bow on April 19, 2021. Elrod was driving a Cadil lac. Elrod told D a l las that he beat two peop le to death
and then he shot them. He told Dallas that he killed Hoste tl er f irst and then killed Head, because
she was a witness to the first murder. Elrod did n ot tell Dallas that he killed Hostetler a n d Head because Carolyn w a s sexually assaulted by th em. Carolyn, however, told Dallas that she had been sexually assaulted. Dal la s test i fied that he did not be lieve Carolyn was an honest person.
II
. The Trial Court D id N ot Err in Refusi ng to Suppress E l rod’s Interrogation Vide o
In connection with his investigation, Ra nger McNeal conducted a recorded interrogation
of Elrod after reading Elro d hi s Miranda 4 rights. Elrod waived those r ights and agr eed to speak
with McNeal. Based on his claim that he cl e a rly requested counsel du r i ng the interr ogation,
Elrod filed a motio n to suppress all portions of the recording following his request. The tr ia l

co urt ove rruled Elrod’s motion to suppress and entere d findings of fact and conclusions of law

. 5
The complet e interrogation recording w a s admitted into e vidence and played for the j ury.

4 Miranda v. Arizona , 384 U.S. 436 (1966).

5 FINDINGS OF FACT
1. T he Defendant was suspected of a d o u ble h o m icide all eged to hav e oc c urred in Lamar County, Texas. A fte r the kil lings, it was believed that the Defendant had fled, along with his wife, to Oklahoma in a vehicle taken from the scene. Defendant had been arres ted in Oklahoma a fter Lama r Count y autho r i ties had issued a wa r r an t for unauthorized use of the veh icl e taken f rom the scene.
2

. The Defendant was therefore in custody on April 29, 2021, when he was interviewed by Ranger Stacey McNeal.
3. Prior to the interview beginning , Ranger McNeal m i randi z e d the Def endant.
4

. T h e Defendant agreed to give an in ter view.
5. During the interview, the following exchange took place at the 19:18 mark:7 Ranger McNeal: I don’t know because I don’t b elieve you.
The Defendant: Well then get me my lawyer t hen .

. . . This is over wi t h t h en. I ain’t

get my family kille d f

or nobody

. Ranger McNeal: You don’t want to talk to me anymore?
The Defendant: You trying to say I am a liar and I say I haven’t done nothing.
W e do not repeat the ent irety of the exce r p t he r e because it appears i n th e body of the opinion

. CONCLUSI ONS OF LAW
1. It is well settled that a custodial interrogation must cease when the Defendant invokes his right to an attorney. Rhode Island v. I nnis , 446 U.S. 291, 293, 10 0 S. Ct. 1682, 64 L

. Ed

. 2d 297 (1 980) (citing M i r

a nda v. Arizona , 384 U.S. 436, 4 74, 86 S. Ct . 1602, 16 L. Ed. 2d 694 (1966)).
2. However, for the invocation to be effective, it must be uneq uivocal and unambiguous. Davis v. Uni ted States , 512 U.S. 452, 459, 114 S. Ct. 23 5 0 , 1 2 9 L. Ed. 2 d 362 ( 1 994); D i n kins v. State , 894 S.W.2d 330, 351 (Tex. Cr im. App. 1995).
3. At a minimum, D avis requires that a suspect express a definite desire to speak to an attorney. Dinkins , 894 S.W .2d at 351; Lucas v. State , 791 S.W .2d 35, 45 ( T ex. Cr im. App. 1989) ( “ The r i gh t to counsel is considered invok ed where a p erson indicates he or she desires to speak to an attorney or have an attorney present during questioning. ” ).
4. Proper inquiry for a court considering an issue such as the one pr e s ent e d here req uires a [n] ex a m in ation of not only the statement its elf but a lso the totality of the circumstance s surrounding the statement

. Dinkins , 894 S. W.2d at 351.
5. This inquiry is objective. In oth er words, would a reasonabl e officer in the cir c u ms t an ces unde rstand the Def

e n d a nt ’ s request to be definite? A s w as state d, in Davis , “ But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would h ave under stood only t h a t t he suspec t might be inv o k i n g the right to counsel, our pre ced ents do not require the cessation of questioning. [ ” ] Davis v. United States , 512 U.S. 452, 459, 114 S. Ct. 23 50, 2355 (1994).
6. The Defenda nt ’ s consent to the intervi ew was se lf

- serving, i f a n ything, a s evidenced by h i s repeated requests to know “ wha t h e had do ne. ” Ranger McNeal was not forthcoming with that information. Therefore, to keep the interview going, the Defendant began to give a ve rsion of events that conf

licted wi th the info r m a ti o n law enf orcement had a l r e a dy acquired. At the point in t ime when th e Defendant made the statement at issue, it is objectively reasonable for an officer to have construed the statement on different levels. In other words, was th is a defl ection by t h e De f endant be cause he was c a u g h t in a lie? Was this a threat by the Defe ndant to squeeze the Ranger for more details of their investigation? Or, as the Defendant argues, was this truly an invocation of the Defen dant ’ s desire to stop the inte rview and r e c e iv e counsel? These reason a b l e ambiguities led to the Ranger see king cla rification [,] and silence speaks volumes. I f it was the8

Elrod contends that , even though he implicitly waived his right to cou ns el b y cont inuing

to answer questions during a law enforcement interrogation, that implicit waiver was inef f e ctive
because it was the r esult of “further unconstitutional interrogat ion by law enforcement.”

A. Standard of Review
We review a trial court’s ru li ng on a motion to suppr ess evidence under a bifurcated
standard. W e “ afford almost total deference to t h e trial court’s determina t i on of the histori cal facts, especially when t h at determination involve s an evaluation of the credibility and demeanor
of wi tnesse s
. ” Masterson v. Sta te , 155 S.W.3d 167, 170 (Tex. Crim. App. 2005) (citing
Maldonado v. State , 998 S .W.2d 239, 247 (Tex. Cri m
. App. 1999)). W e also “afford nearly total
deference to trial court s ’ rulings on application

- of

- law

- to

- fact questions , als o known as mixed questions of law and fact , if the resolution of those ultimate questions turns on an eva l u ation of credibility and d emeanor.” Carri llo v. State , 235 S.W.3d 353 , 355 (Tex. App.

— Texarkana 2007, pet. ref’d) (citing Guzman v. State , 955 S. W.2 d 85, 89 (Tex. Crim. App. 1991)).

“ [ W ] e r eview de novo

. . . mixed questions of law and fact which do n o t turn on witness
credibi l i ty and demeanor. ” Cagle v. State , 509 S.W.3 d 617, 622 (Tex. App.

— Texarkan a 2016, no pet.) (citing Estrada v. State , 154 S. W.3d 604, 607 (Te x. Crim. App. 2005) ). “ C onsequently,
we review the trial court ’ s ruling on a motion to s u ppress in the light most f avorable to the trial

court ’ s ruling. ” Id

. (citing State v. Kelly , 204 S. W. 3d 808, 818 (Tex. Crim. App. 2006) )

.

“ Where, a s here, the trial court makes findings o f fact and conclusions of law, we determine whether the evidence, w hen viewed in the light m o st favorable to the trial court ’ s

latter, the interview would have stoppe d when the Defendant said “ yes
. ” He didn ’ t reply in that manner [,] so t he conve r sati o n continued voluntari ly.9

ruling, s upports those fact

- findings, an d review de novo the trial court ’ s legal conclusi ons unless
its ex plicit fact

- findings th a t are supported by the record are also dispositive of the legal r u ling. ”
Id

. (citing Kell

y , 204 S.W.3d at 81 9 ). “Since all the ev iden ce is viewed in the light most
favorable to the trial court’s r uling, we are obl igated to uphold the denial of [Elrod’s] motion to suppress if it was supported by the record and was cor r e ct under any theory of l a w applicable to
the cas e.” Young v. S ta te , 420 S

. W

. 3d 139, 141 (Tex

. App.

— Texarkana 2012, no pet.) (citing
Carmouche v. Sta te , 10 S.W.3d 323, 32 8 (Tex. Crim. App. 2 000 ) ).

B. Analysis After Elrod signed a written waiver of his M i randa rights, he gave an a ccount of his

a rrival in Oklahoma. El rod s tated that he and Carolyn had left Paris on a Monday two weeks
hence. He recoun ted that they had b een staying with Hostetler

— someone he had kno wn from
years past

— in Tigertown. Elrod p aid rent to Hostetler by wo r k ing on cars for him. Elrod

exp la ined that Hostetler ’ s grandmother o wned the house in which they were residing, and at

so me point, H ostetler ’ s m other indicated that she did not want anyone else living in the house.
In his a c c ount, Elrod explained tha t h e and Carolyn left Hostetler ’ s home a littl e before
noon after Hostetler asked them to leave. Elrod told Ranger McNea l that he and Ca rolyn paid

someone

— whose name was unknown to him

— $100.00 for a ride to O klahoma in a turquoi s e , Ford Ranger , ex tended

- c ab pickup

. Elrod explained that he had been stayi ng at “Nancy’s place”
in Oklahoma for approximately tw o weeks , where he h ad done some m echanic work. N eit her
Elrod nor McNeal mentioned the murders of Hostetler and Head. Elrod r e peatedly denied
h aving po ss e ssion of the Cadillac and offered different exc us es for having the keys to the10

Cadillac and for ha ving Head’s ring. Elrod also denied having any physica l confrontation with
either Head or Hostetler. Followi ng Elrod’s account , the following dis cussion en s ued:

Ranger McNeal: The problem, Jamie, is what y ou told me now

—

none of that’s true. And you alre ady know that. And you know that I know that.
Elrod: What was I was supposed to have done? Please tell

me. Ranger McNeal: Y o u didn’t get a rid e in a t ur q uoise

- colored Ford

Ranger to Nancy’s. I know t ha t and you know that. So it would be better if yo u just told me the truth.
Elrod: T ell me what I’ve do ne, please.
R anger McNeal: Tell me the truth

. Elrod: I ain ’t done nothi n g to nobody. When people

th r eaten me, I leave. Ranger McNeal : Who threate ne d you?
Elrod: Ask Eddie’s momma and them.
Ran ger McNeal : Who threatened you?
El rod: That’s the Mex ican boys who came out there

f*****g threatening me.
Ran ger McNeal: I t h o ught you said you didn’t ta l k to them.
Elrod: When I ge t s**t stuck in my f *****g face and told

me to f* ****g leave. Ranger McNeal : Well y ou didn’t tell me none of that.
Elrod: Sometimes i t’s best to kee p your f*****g mouth

shut because I ain’t tr y i ng to get myself in a f** ** * g . . . getting myself f**** *g hurt.11 Ranger McNeal: So what’d they tell you?
Elrod: What do you think they told me? Ranger McNeal: I don’t know because I don’t believe you.
E lrod: W ell then get me my lawyer then

. . . . This is o ver

with then. I a in’t getting my f*****g family ki lled for nobody. Ranger McNeal : You don’t wa nt to talk to me anymore?
Elrod: You trying to say I’m a liar and I say I haven’ t done

nothing. Range r McNea l : I’m saying you’re not telling me t he tru th.
Elrod: I just d o n’t understand what the f**k I ’ve done. Ranger McNeal : Where’s the Cadillac?
Elrod: Huh? Ranger McNeal: Where i s the Cadillac?
Elrod: I ain ’ t got no Cadillac. Ranger McNeal: You ain ’ t got no Cadillac?
Elrod: No.
R a nger McNeal : Where’s Eddi e’ s Momma’s Cadillac?
Elrod: I don ’t have Eddie’s Momma’s Cadillac.
The inte rrogation proceeded with no further me ntion of a lawyer. During the remainder of the interrogation, Elro d confe ssed to striking Head in the head w i t h a wrench and striking
H os t etler in the head with a hamme r. He denied shooting either victim in the head, moving their bodies, or placing dog fo od sacks over their heads. Elrod contends that the interroga tion s hould12

have ended i mmediately af ter he sai d , “Well then get me my law ye r then

. . . . This is over with

t hen

. ”

“ When a suspect asks for a lawyer, interrogation must cease until counsel has b een provided or the suspect initiates further communication with th e police. ” Davis v . State , 3 13
S.W.3d 3 17, 339 (Tex. Crim. App. 2 0 1 0) (citing Edwards v. Arizona , 451 U. S. 4 77, 484

– 85 (1981) ). “This secondary Miranda right to counsel is ‘designed to pre vent police from badgering a defendant into waiving his pr eviously asserted Miranda ri ghts.’” Beham v. S t ate , 476 S.W.3d
724 , 729 ( T e x. App.

— Texarkana 2015, no pet.) ( footnote omitted) ( q uot ing Davis v
. United
Sta tes , 512 U.S. 452, 458 (1994) )

. “ However, in the context of invoking the Miranda right to counsel, a suspect must do so ‘ unambiguously. ’ ” Id

. (c i t ing Berghuis v. Thompkins , 5 60 U.S. 370, 38 1 (2010)).

“ [I]f a suspect makes a reference to an attorney that is ambiguous or equiv ocal in that a reasonable officer in light of the circums tances would have understood only tha t the suspect might be invoki n g the right to counsel, ” t h en an officer is required neit h er to end the interrogation nor ask questions to clarify whether the accus ed wants to invoke his or her Miranda rights.
Id

. at 730 (alte ration in or iginal) (quotin g Davis , 512 U.S. at 45 9 )

. A s a result, “[n]ot every me n t io n of a lawyer will suffice . . . to invoke the F ifth Amendment right to the presence of counsel during q u estioning.” State v. Gobert , 275 S.W.3d 888, 892 (Tex . Crim. App. 2009). “Whether th e men tion of a lawye r constitutes a c lear
invocation of the r i g ht to counsel will depend upo n the statement itself and the totality of the surrounding circumstances.” I d

. In determining whether “ a reasonable police officer in the
circumstances would unde rstan d the statement to be a reque s t for an attorney ,” we emp l o y an13

objective test. Id

. at 8 9 3. “We look to the totality of circumstances to determine whether any

stat e ment referencing counsel was really a clear invocation of the Fifth Amendment right; we do

not look to the totality of t h e circumstances, ho wever, t o d etermine in retrospect whet her the suspect really meant it when he unequivocally invoked his right to co u nsel .” Id

. The question, then, is whether a reasonab le police officer would have unde rsto od Elrod’s statem ent to be a

r e q uest for an attorn ey giv e n t he totality of the circumst ances. The trial court reviewed Elrod’s recorded interrogation as its sole b asis for denying the

m otion to suppress. The recordin g reflects Elrod’s demeanor and attit ude much more cl early
than a d r y transcript . During the i nt errogation, Elrod spoke qu ickly and seemed eager to volunteer information. He often interrupted Ranger McNeal t o offer additional information and
often seemi ngly extraneous information. In other w ords , Mc Neal had no occasi o n to pro d Elrod
to talk. B e y on d that, Elrod spoke quickl y and, at times, flippantly. By the time McNeal told
Elrod that he did not believe E l rod’s story , Elrod stated with a flippant, cas ual offhandedness,

“ Well then get me my lawy er t hen

. . . . Thi s i s over w ith then

. ” Without p au sing (and thus
without fur ther questioning by McNeal ) Elrod said , “I ain’t getting my f*****g family killed f o r nobody.” This statement

— made after Elrod said, “ [G] et me my lawyer then ”

— appears t o be an inv it ation for furth e r inq uir y by McNeal rather th an a n expression of t he desire to cease the interrogation. The totality of these circumstances, when viewed f r om the standpoint of a reasonable
office r , reflect that Elrod’s statement w as not an unambiguous and unequi vocal i nvoc ati on of the right to co uns el

. See Davis , 31 3 S.W.3d at 338

– 41; Beham , 476 S.W.3d at 730 . Rather than14

continue questioning, though, Ranger McN e al rea sonably asked Elrod whet her he wanted to talk with McNeal any lo nger

— a s tateme nt far removed from t h e substance of the investig at ion

. Rather than con firm that he no longer wished to talk with McNeal, Elrod continued talking, as reflected in the pri n ted di alogue above. 6
For thes e reasons, we con clude that the trial co urt a cte d with in its discretion in r e fusing to suppress Elrod’s r eco rded interrogation . We overrule this point or error.
III. No Error in Declining to Give Defensive Instructions
At th e charge conference, Elrod requ ested a jury inst ruction on self

- defens e as t o b oth
He ad and Hostetler. He a lso requested an instructi on on defense of third persons based on the alleged sexual assault of Carolyn. The trial court denied each of those reque s ts. On appeal, E lrod cl aims that he was entitl ed to a self

- defense i nstruc tio n with regard to
Head becau s e he testified that he beli ev ed that she was reaching for a weapon when he threw a
wrench at her and knocked her unconscious. He points to the follo w ing testimony in support of
his claim: Q. [By defense counsel] All right. W here did you get the wrench f rom?
A. [By Elrod] Out of th e floor, rig ht there by the toolbox. I didn’t know what she was grabbing. She was

- - Cassie was facing m e at the doo r at that house and gigg ling and I don’t know w hat she was reac hing for so I t hrowed the wrench and hit h e r in the head with it. Q. O kay . Let’s bac k up a little bit. When you confronted her in the room and she was laughing she was reaching for somethin g, is that correct?

6 Be c a us e we f

ind that Elrod’s invocation was amb iguous, we need not address the question of whether he waived his right to counsel by continuing to speak with McNeal. See Cross v. State , 144 S.W.3d 521 (Tex. Crim. Ap p. 2004)

.15 A. She was right there be side the dresser whenever

- - th e wrench struck her she fel l right in front of the ches t. Q. Okay. Bu t prior to that happening you said she was reaching for something?
A. Yes. Q. Do you know what she w as reachin g for?
A. No , sir , I don’t know wha t she was reaching for. Q. Wh at did you think it was?
A

. It was a weapon I know

- - Q

. At that po int you threw the wrench at her. Was she still reaching for something? W as she standing up?
A. She sto od up and looked at me a s I t hrowed the wrench. I throwed the wrench

. In add ition, Elrod testified that h e was in fear for his life

. Next, Elrod claims that he was entitled to a self

- d efense instruction as to Hostetler
because the evidence showed that Host etler was holding a ham mer an d moving toward h im.
Elrod therefore claims th a t he reasonably believe d that attacking Hostetler w as im mediately necessary to protect himself against Hos tetler’s use or attempted use of unlawful deadly force. Elrod points to the following te stimon y in s upport of his clai m:

Q. [ By d efense c ounsel ] A f ter that happened what d i d you do?
A. [By Elrod ] I we nt looking for Eddie. Q. Did you hear him? How did you find him?
A. He was making noise in the shed.16 Q. When you say making noise what kind of no ise was it?
A. H e was moving stuff around. Q

. Like moving tools, wha t ?
A. Tools. It w as just

- - he was in th ere
- - just a light was in it. Q. So you went outside?
A. Yes, sir. Q. And what did you see?
A. I seen Ed die with a hammer in hi s hand

. Q. Did he say anything to you?
A. No, he

- - he was giggling too. I d idn’t quite think it was t oo fu nny. Q. Did he threaten you with a hammer?
A. Yes, sir. He picked it up in his hand. Q. Did he come towards you?
A

. He come toward me as I pick ed up the other sh op hammer and hit him with i t.

. . . . Q. So you p i cked up the hammer. What di d y ou do next ?
A. I throwed it and hit him in the head with it. Elrod argues that the trial court erred b y omitting his re quested jury instructions o n s elf

defense as to both victims and defense of third persons.17

A. Stand a r d of Review and Applicable L aw We review th ese claim s “under the two

- prong ed test set out in Al manza v. Sta te , 686 S.W.2d 157, 17 1 (Tex. Crim. App. 1984) (op. on reh ’ g).” Graves v . S tate , 452 S.W.3d 907, 910 (Tex. App.

— Texarkana 2014, pet. ref ’ d ). “We f i rst determine whether erro r exi sts.” Id

. (citing Ngo v. State , 175 S.W.3d 73 8, 743 (Tex. Crim. Ap p. 2005))

. “If there is no er ror, our analysis
ends.” Id

. (citing Kirsch v. Stat e , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)). “Regardless of the s trengt h or credibility of the evid en ce, a defendant is entitled to an
instruction on an y defensive issue tha t is ra ised by the evidence. ” Jorda n v. State , 593 S .W.3d 340, 343 (Tex. Crim. Ap p . 2020). “A defensive issue is raised by the evidence if there i s suff i c ient evidence to support a r ati onal jury finding as to each element of the defens e.” Id

. (citing Shaw v. S tate , 243 S.W.3d 647, 657

– 58 (Tex. Crim. App. 2007)). “We view the evide nc e in the light most favorable to the defendant ’ s reque sted defensive ins t r uction.” Id

. (citing
Gami no v. State , 537 S.W.3d 507, 510 (Tex. Crim. App. 2017)). “A trial court errs t o refuse a
self

- defens e instru ction if there is some evidence, viewed in t he light most favorable to the defendant, that will supp ort its elements.” Id

. “[I]f the evidence, vi ew ed in the light most favorable to the defendant, does not establish
self

- defens e, the defendant is n ot entit led to an instruc tion on the issue.” Gaspar v
. State , 327 S.W.3d 349, 356 (Tex. App.

— Texarkana 2010 , no pet.) (quotin g Ferre l v. State , 55 S.W.3d 5 86, 591 (Tex. Crim. App. 2001)). “The defendant ’ s testimon y alone may be suffi cient to raise a
defe nsive th eory requiring a charge.” Dyson v. State , 6 72 S.W.2d 460, 463 (Tex. Crim. App.18

1984). “Whether a d efense is supporte d by the evidence is a suffi ci enc y question reviewable on appeal as a question of law.” Sha w v. State , 243 S .W.3d 647, 658 (Tex. Crim. Ap p. 2007).
B. Elro d W as N ot Entitled to a Se l f
- D efense Instruction Regarding Hostetler or Head
In accordance with Sect i o n 9. 3 2(a) of the Texas Pen al Co de, “ [ a ] person is justified in using deadly force against an other

. . . whe n and to the degree the actor reasonably believe s the deadly force is imm e di ately necessary

. . . to protect the actor against the other ’ s use o r a t t empted
use of unlawful dea dl y f

orce. ” T EX

. P ENAL C ODE A NN

. § 9.3 2(a)

. Here, the evidence , vi ewed in the light most favorabl e to Elrod , reflects no b asis on
which the trial court cou l d have submitted a self

- de fense instruction with respect to either vi c t im. As Elrod acknowledge d i n h is brief, the forensic pathologist testified that both Head and
Hostetler we re killed by a guns hot wound to the head. The evid ence show ed that both v icti ms were lying motionless on the ground when Elrod shot them , thus pos i n g no threat to Elrod. Eve n
if the jury disbelieve d the pathologist’s testimony

— as defense counsel argues c ould have been
the case

— and i nstead believed that H ead and Hostetler died as a result of the respective wrench
and hammer blows to the head, the re c o rd nevertheless fails to s up por t the submission of the requested self

- defense instructions.
This is becaus e Elrod testified t hat both H ead and Hostetler fled the bedroom when he

w a lked in . Head retreated to her bedroom , and Hostetle r retreated to the s h e d. Having retre ated,
neit he r H ead nor Hostetler used or attempted to use unlawful deadly f orce against Elro d. Instead, though , Elrod we nt looking for Head an d Hostetler. A s the t r ial court explained, Elrod and Carolyn could have le ft the scene after H e a d and Hostetler re treated :19

W hat the Court understands is Ms. Head retreated to a bedroom, Mr. Hostetler alle gedly retreated to a shed. T he assault was over, q uite clearly. If this were the case Mr. Elrod and [Carolyn] could’ve gotte n in a car and left t h e scene and so be it. So, w het her o r not the use of deadly force was immediately necessary, it was not. An d if it’s n ot

-- if there is not that evidence then the Court is not obli ge d to include that instruction

. To get self

- defense though you have to a l so look at the defe nse of th e o thers, whe ther or not Mr. Elrod could have used deadly force to protect himse lf. His argument i s that onc e h e went to look for Ms. H ead or Mr. Hostet ler th at h e became in fear of his life. The question though is he was no t protecting another at that t ime , instead he was advancing on someone. The question is what threat was there to him as he went to search the m out. The law is suppo sed to make sense

. I’v e al ways believed that the law is supposed to m ake sense and it is n o nsensical to believe t hat a sel f

- defense instruction would be applicable under these circumstances.
The tri al court was correc t in its r uli ng. The use of deadly fo rce is j ustif ied “to the de gree the actor reasonably believes the dea dly force is immedia t e ly nece ssary .” T EX

. P ENA L C ODE
A NN

. § 9.32(a)(2) (emphasis added)

. After the alleged sexual assault, Elrod testified that he
checked on Car olyn for “about three seconds” a nd th en “ went to lo oking for

. . . . Cassie or Eddie, either one, whoever [he] go t to run across fir st.” ( E mp ha sis added). After he knocked
Head unconscious , Elrod testified that he then “ went l ooking for Eddie .” ( E mphasis add ed). At
th at point, Elrod , who was i n n o immediate danger from either vi ctim , became the aggressor looking to r etaliate against Head and Ho ste t ler . This type of behavior

— which may prompt a
victim to act in such a way as to defend himself

— do es not fall wi thin the ambit of self

- defense

. This is because “ [ s ] elf

- defense impli es de fens ive and not offensive acts. ” W i t ty v. State , 203
S.W.2d 21 2, 21 8 (Tex. Crim

. App. 1947); Wilcox v. State , No. 06

- 22

- 00100

- CR , 2023 WL
2546504 , a t *4 (Tex. App.

— Te xarkana Mar . 1 7, 2023, pet. ref’d ) (mem. op., not d esi gnated for

p ublication) ; see G ibson v. State , 202 S.W.2d 236, 237 (T ex
. Crim. App. 1947) ( “ [ S elf

- d ef ens e ]20

must not exceed the bounds of defense and prevention. There must be an apparent necessity to

war d off by forc e a n unlawful act. It is a right b ased u p on necessity.” ) ; see Smit h v. State , 9 65
S.W. 2d 509, 512 (Tex. Crim. A pp. 1998) (“The rule of la w is that if the defendant provoked another to make an attack on him, so that the defenda nt would have a p retext fo r kill ing the other under the guise of self

- d efense, the def

endant forf

e its his right of self

- defense .”)

. For thi s reason, and b ecause there is no eviden ce that the use of deadly forc e agains t
either victim was immed iately necessa ry at any point, we overrule thi s p oint of error.
C. Elrod W as N ot Entitled to an Instruction on the Defense of Third Persons
Elrod also c o mplains that he was entitl ed to , but d id not receive, a jury instruc tion

reg arding the defe nse of Car olyn. This co mplaint is base d on Elrod’s test imo ny that , when he
entered his bedro om, he found Head ho lding Carolyn down as Hostetler sexuall y assault ed
C arolyn. Elrod testified t h a t h e pulled Hostetler out of t he room and that Head jumped ov er him to get out of the room.
S ection 9.33 of the Tex as Penal Code provides: A person is j ustifie d in using force or deadly force against another to protect a thi r d person if: (1) under the c irc umsta nces as the actor reasonably b elieves them to be, the actor would be justifie d under Se ction 9.31 or 9.32 in usi ng force or deadly force to protec t himse lf against the unlaw ful force or unlawful deadly force he reasona b l y believes to be threateni n g th e thi rd person h e seeks to protect; and (2 ) the actor rea sonably believes that hi s interven tion is immediately ne ces sary to protect the third person.21

T EX

. P ENAL C ODE A NN

. § 9.33. “In other words, a defendant is justified i n defending a third

person i f , u nder the circums tances as the defe ndant re asonably believ es them to be, the third

person wo uld be justified in de fen ding himself.” Henley v. State , 4 93 S.W. 3d 77, 89 (Tex. Cr im. App. 2016) (pl u rality op.)

. To support his c l aim of entitlement to a de f e nse of third persons
in struction, El r od was r equired to pre s ent some proof of a reas onable bel ief “that his interven tio n [was] ‘immediately necessary’ to protec t [Carolyn ].” Id

. Yet, the unc ontroverted evidence shows that , w h en Elrod entered the bedro o m , h e pulled
Hostetler ou t and Head f

le d the ro om. At that po int, as the trial court noted, th e threat was over.
Elr od’ s murder of Hostetler and Head wa s not a ccomplished to prot ect Carolyn from deadly
force or the threat of d e adly force. See Arnwine v

. Sta te , 20 S.W.3d 155, 15 9 (Tex. App.

— T exarkana 2000, no pet.) ( “ [ A] d efendant’s belief th at con duct was immediately neces sar y to avoid imminent harm may b e deem ed unreasonable as a matter of law if undisputed facts
demonstrate a com plete absence of immed i a te necessity or imminen t har m.” ( c iting B razelton v.
State , 9 47 S.W.2d 644, 648

– 49 (Tex. A pp.

— Fort Worth 1997, no pet.)) )

. We overrule this point
of erro r. 7

7 To t he extent Elrod clai ms that t he alter cation in the bedr oom carried th rou gh to t he time at which he struck Hostetler with a hammer because he was still “under the excitement and passion of the [ original ] mom ent,” we find this argument to be w ithout m e ri t; i t is based on authorit y tha t pr e
- dat es , and is at odds with, our cur re n t statu tory scheme. See Young v. State , 180 S.W. 686, 316 (Tex. Crim. App. 1915) ( “ [I] f deceased was advancing on appellant when he dre w his pistol and fired the first sh ot, and d ece a s ed then aba ndoned the d iffi c u lt y and f led, and appellant, while labori ng under t he excitement and passion of the moment, shot as he fled, this would be a case of manslaughter and not murder

. ”).22

IV. Elrod W as Not Entitled to a Jury Instruction on the Purported L e sser - Include d Offense of M u r der with Regard to Head or Hostet ler
In his fina l point s of err or, Elrod claims that he shou ld have received a lesser

- i ncl uded

offense instruction in the c harge wi th respect to both Head and Hostetler. In support of this

co n t ention, he argues that mur d e r i s a lesser

- included offense of capital murde r, becaus e the on ly
difference b etween the two offenses wa s that he murdered more than o ne person during t he
course of t he same cri minal transaction. Elrod maintains that , becaus e he testified that his
acti o n s w ere taken in his own defense and that of C arolyn

— if that should b e true in eithe r instance

— then he c ommi tted murder rather than capital mur der

. We find that the trial court did not err in refusing to submit a lesser

- inclu d e d

- offense instruction.
We a p ply a “two

- step analysis . . . to determine whether an instr uction o n a lesser

incl uded offense should be g iven to the jury.” State v. Mer u , 414 S.W. 3d 159, 162 (Tex. C rim. App. 2013). “The first step of the analysis is a q u e stion of law that does n ot d e pen d on the evidence presented at trial.” Id

. At this leve l of inq uiry, we compar e “the elements of the

o ffense as alleged in the indictm ent with th e elements of the r equested lesser offense.” Id

. “An
offense will be a le s s er
- included offense where ‘ i t is established by proof of the same or less than

a ll the fa cts requ ired to establi sh the commission o f the offense charged.’” Id

. (quotin g T EX

. C ODE C RIM

. P ROC

. A NN . a rt

. 37.09(1) ). The Texas Court of Criminal Appeals has l ong held that murder is a l e s ser
- included offense of capital murder. Smith v . St ate , 297 S.W.3d 2 60, 275 (Tex. C rim. App. 2009) (“ This23

C ourt has long held that murder i s a lesser

- included offense o f capital murder.”) 8 Indeed, the
State concedes as much

. We , t herefore , proceed to t h e s econd step of our analysi s. The second step of our analysis “ requir es us to determ ine whether the evidence admitted
at trial ‘ would permit a jury rationally to find that if the defendant is guilty, he is guilty only of
the l esser o ffense. ’” George v. S tat e , 634 S.W.3d 929, 937 (Te x. Crim. App. 2021) (quo ting
Solo mon v. S tate , 49 S.W.3d 356, 369 (Tex. Crim. Ap p. 2001)). “ ‘ [I]f some evidence fr om an y source raises a f

act issue on whether [the defendant] is guilty of only th e lesser [offense], ’ the
defe n d ant is entitled to the instru ction ‘ regardless of whe ther the evidence is weak, impea ched,
or contrad icted. ’” Id

. (alter ation in original) ( quo ting Cavazos v. State , 3 82 S.W.3d 377, 383 (Tex. Crim. App. 2012) )

. “[T]he ultim a t e inquiry is whether the le s s er offense is a valid,
rational alternative to the charg ed off ense. ” Id

. He re, El r od was charged w ith capi tal murder for intentionally and kn owing ly causing
Hostetle r’s death by shooting him with a firearm and for intentio n a lly and knowingly causing
H e a d’s death by shooting her with a firearm during the same crimi nal tran saction. See T EX

. P ENAL C ODE A NN

. § 19. 03(a)(7) ; see Feldman v. State , 71 S.W. 3d 738, 752 (Tex. Cr im. App. 2002) ( jury authorized to convict if it found t h a t appellant murdered both v i c tim s during same criminal transaction) , 9 superseded by statute on other grounds , T EX

. C ODE C RIM

. P ROC

. A NN . ar t
37.071 (S upp.)

.

8 In this cas e, the indictment charged Elrod wi th murderin g t w o people dur ing the same cri m i na l trans action

. The elements of murder a re subsum ed within this definition. See T EX

. P ENAL C ODE A NN

. § 19.03 (a)(7)(a).

9 The “same criminal transaction” means “a con tinuous and uninterrupted chain of conduct occu rring ove r a very short p eriod of tim e
. . . in rapi d sequence of unbroken events.” Ja ckson v. State , 17 S.W.3d 664, 669 (Tex. Crim.24

Elrod argues that a n instruction on the lesser

- included offense of murder as to both Hea d
and Hos t e tler s hould have been inclu d e d i n th e charge because there wa s so me evidence of self

def ense and defense of another person. “ Had those instructions been submitted, there was a potential for a jury to have found that Elrod commit ted one , but not two murd e r s ,” an d would
therefo re not b e g uilt y of capital murder.
This ar gument rests precarious ly atop the assumption that self

- defense and defense of
third

- party instructions were (or should have been) included in the charge. They were not. We
have further d e t ermi ne d that the tria l cour t d id not err in declining to submi t t hose instructions.
As a result, we overrule this point of error.
V. Conclusion We affirm the trial court’s judgment.

Jeff Rambin Justice
Date Submitted: June 14 , 2023 Date D ecid ed : July 12 , 202 3
Do N o t P ublis h

App. 2000) (quoting Rios v. St at e , 846 S.W.2d 310, 311

– 12 (Tex. Crim. App. 1991) . Elrod does not contend that the m urder s did not t a k e place d ur i ng the same cri m i na l transa ction.