COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00395-CR

MARK OBERLANDER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Mark Oberlander of deadly conduct but

acquitted him of manslaughter and criminally negligent homicide.2 He brings four 

points, challenging the legal and factual sufficiency of the evidence to support his 

conviction and contending that the trial court reversibly erred by not including jury 

instructions on concurrent causation and voluntary act. Because we hold that the 

 

1See Tex. R. App. P. 47.4.

2See Tex. Penal Code Ann. §§ 19.04, 19.05, 22.05(b), (e) (Vernon 2003).
2

evidence is sufficient and that the trial court committed no reversible error, we 

affirm the trial court’s judgment.

I. Summary of Facts

Appellant and David Kwilos lived in a house in Arlington, Texas, with its 

owner, Matt Rabun. At trial, Kwilos’s friend David Campbell testified that he 

regularly spent time at the house and that on September 28, 2008, he arrived at

the house around 12:30 or 1:00 a.m. He got a beer and went to Kwilos’s room 

and woke him up. The two men talked while Campbell fixed himself something 

to eat. Campbell and Kwilos became aware that someone else was present but 

did not see anyone; eventually Campbell noticed Appellant ―peering around the 

corner, almost like he didn’t know [that Campbell] was there.‖ Campbell greeted

Appellant, who then returned to his bedroom. Kwilos became agitated and went 

into Appellant’s bedroom. Campbell could tell that they were arguing, and a few 

minutes later, Kwilos came out of Appellant’s room, upset. From what Kwilos

said to Campbell, Campbell concluded that Appellant had put a gun to Kwilos’s

head.

Kwilos went back into Appellant’s room and came out again about ten 

seconds later, carrying a pool stick by its smaller end. He picked up Campbell’s 

keys from the sofa and told Campbell to follow him. Kwilos, with Campbell 

following, went to Appellant’s room. From the doorway, Campbell could see 

Appellant on his bed. He did not see a gun. Campbell said he was leaving and 
3

headed toward the back door. Before he reached the back door, Campbell heard 

a shot.

Campbell testified that a few weeks before the shooting, Appellant had a 

confrontation with two other men at the house during a poker game. Several 

days later, Appellant brought two guns to the house, one that ―looked like an AK47‖ and an assault shotgun with a pistol grip. Campbell stated that Appellant 

said he had five bullets, ―each one with our names on it.‖ Campbell also testified 

that a few days before the shooting, Kwilos and Appellant had had a fist fight 

over a knife that the three men had been using to install carpet in the house.

The State introduced a copy of a 911 call from the night of the shooting on 

which Appellant and Kwilos can be heard arguing. Kwilos can be heard saying, 

―I should have fucked you up so bad for fucking what you did yesterday,‖ to 

which Appellant replied, ―I’m about to kill you anyway.‖ A shotgun blast can be 

heard on the tape after that. Appellant stayed on the phone until the police 

arrived, and on the tape Appellant repeatedly stated that the gun went off when 

Kwilos grabbed the gun and pulled it toward him. Appellant made this same 

assertion when interviewed by the police after his arrest.

Jamie Becker of the Tarrant County Medical Examiner’s Office testified 

that when Kwilos was shot, in her opinion, the end of the barrel was not in 

contact with the skin but was closer than six feet away. She could not say 

whether Kwilos’s arm had been extended when he was shot; she could only say 

that it was not down by his side. Marc Krouse, also from the medical examiner’s 
4

office, first characterized the wound as a ―close-range wound from a shotgun‖ but 

later characterized it as a ―distant range wound‖ based on the lack of soot or 

powder and the fact that the shot had begun to disperse. He later stated that the 

wound ―impl[ied] that the muzzle-to-skin distance [was] not really that far [away].‖ 

Krouse also testified that at the time of his death, Kwilos had benzodiazepine, 

Valium, cannabinoids, hydrocodone, methamphetamine, and ecstasy in his 

system.

II. Sufficiency of the Evidence

Appellant was charged by indictment with deadly conduct3by knowingly 

discharging a firearm at or in the direction of Kwilos. Appellant argues in his first 

two points that the State was required to prove beyond a reasonable doubt that 

he knowingly discharged the weapon and that the State failed to sustain its 

burden of proof.

After Appellant submitted his brief, the Texas Court of Criminal Appeals 

held that there is no meaningful distinction between the legal sufficiency standard 

and the factual sufficiency standard.

4

 Thus, the Jackson standard, which is 

explained below, is the ―only standard that a reviewing court should apply in 

 

3See Tex. Penal Code Ann. § 22.05(b).

4Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling 

Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).
5

determining whether the evidence is sufficient to support each element of a 

criminal offense that the State is required to prove beyond a reasonable doubt.‖

5

In our due-process review of the sufficiency of the evidence to support a 

conviction, we view all of the evidence in the light most favorable to the 

prosecution to determine whether any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.6 The jury is the sole 

judge of the credibility of the evidence and the weight to be given to each piece 

of evidence.7

The sufficiency of the evidence in a criminal case is not determined by a 

no-evidence standard.8 Instead, we must look at all the evidence to determine 

whether a rational jury could have found that the State proved every element of 

the offense of felony deadly conduct.

Lorri Tiner, Kwilos’s sister, testified that he had called her a day or so 

before his death and had told her that Appellant had threatened to kill him. 

Kwilos asked Tiner to help him leave the home, and she testified that he had

 

5

Id.

6

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); 

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

7Brooks, 323 S.W.3d at 899.

8Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989), overruled on 

other grounds by Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991), 

overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim.

App. 2000).
6

recently qualified to receive governmental housing assistance. He was to move 

into a new home but was killed before he could do so. Her testimony was 

confirmed by the 911 recording the jury heard.

Appellant admitted that he was holding the firearm when he told Kwilos 

that he was about to kill him and immediately before it discharged, killing Kwilos. 

Appellant said that the weapon discharged when Kwilos grabbed the barrel. The 

jury, as the trier of fact, was free to determine the credibility of the witnesses and 

to evaluate the meaning of the recording they heard. The medical testimony 

supports both theories, that of Appellant’s firing the weapon and that of Kwilos’s

grabbing the barrel. The jury obviously believed that Appellant carried out his 

intention to kill Kwilos rather than Appellant’s version of the events.

Applying the appropriate standard of review, we hold that the State 

sustained its burden of proving each and every element of the offense of deadly

conduct, as alleged in the indictment, beyond a reasonable doubt. We overrule 

Appellant’s first two points.

III. Jury Charge

Appellant argues in his third and fourth points that the trial court reversibly 

erred by failing to instruct the jury on concurrent cause and voluntary act.9

Appellate review of error in a jury charge involves a two-step process.10 Initially, 

 

9See Tex. Penal Code Ann. §§ 6.01, 6.04 (Vernon 2003).

10Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also 

Sakil v. State, 287 S.W.3d 23, 25B26 (Tex. Crim. App. 2009).
7

we must determine whether error occurred. If it did, we must then evaluate 

whether sufficient harm resulted from the error to require reversal.11

The trial court has a duty to instruct the jury on the law applicable to the 

case regardless of any objection to the charge by Appellant.12 Appellant is 

correct that there is evidence of a concurrent cause, based on his contention that 

Kwilos grabbed the barrel and pulled the weapon toward him while Appellant’s 

finger was on the trigger. Appellant is also correct that the same evidence raises 

the issue of voluntary act. Consequently, concurrent causation and voluntariness 

were part of the law applicable to the case if instructions on the issues had been 

requested,13 and the trial court could properly have instructed the jury on 

concurrent causation and voluntariness.

Concurrent causation and voluntariness, however, are defensive issues.14 

―An unrequested defensive issue is not the law applicable to the case.‖

15

 A trial 

court is not required to sua sponte instruct the jury on purely defensive issues 

because to require instruction on defensive issues is to intrude on counsel’s trial 

 

11Abdnor, 871 S.W.2d at 731B32.

12Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011).

13See Tolbert v. State, 306 S.W.3d 776, 779 (Tex. Crim. App. 2010) (citing 

Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998)).

14See Tex. Penal Code Ann. §§ 6.01, 6.04; Rogers v. State, 105 S.W.3d 

630, 639 (Tex. Crim. App. 2003); Bell v. State, 169 S.W.3d 384, 394–95 (Tex. 

App.—Fort Worth 2005, pet. ref’d).

15Taylor, 332 S.W.3d at 487.
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strategy.16 Because Appellant did not object to the omissions from the charge or 

request the omitted instructions, the trial court did not err by choosing not to

instruct the jury on those issues.17 We overrule Appellant’s third and fourth 

points.

IV. Conclusion

Having overruled Appellant’s four points, we affirm the trial court’s 

judgment.

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: May 12, 2011

 

16Tolbert, 306 S.W.3d at 780 (citing Delgado v. State, 235 S.W.3d 244, 

249–50 (Tex. Crim. App. 2007)).

17See id.