Motion for Rehearing Denied ; Motion for En Banc Reconsideration Dismissed as

Moot; and Supplemental Opinion on Rehearing filed February 2 4 , 20 22

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00388

- CR

DEMEKAYLA DAQUIS DURDEN , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 179th District Court

Harris County, Texas Trial Court Cause No. 1491520

S UPPLEMENTAL OPINION AND DENIAL OF REHEARING

The State filed a motion for rehearing, and in its first issue challenged this

court ’s conclusion that the record contained evidence to merit inclusion of a deadly

- f orce self

- defense instruction. Subsequentl y, in connecti on with that argument, the State filed a supplemental brief spotlight ing a recent Court of Criminal Appeals charge

- error case , Lozano v. State

. 1 T he State declare s Lozano

1 Lozano v. State , PD

- 1319

- 19, 2021 WL 4695 809 (Tex. Crim. App. Oct. 6, 2021), reh'g denied2

“ so on

- point as to be controlling

. ” T he State contends “the evidence o f a ppellant ’s

state of mind is conceptually the same as the evidence in Lozano ” and argues “just
like Lozano , it does not offer an insight into the defendant ’s subjective state of
mind. ” We supplement o ur original opinion to address this argument

.
In L oza no v. Sta te , at the close of Mr. Lozano ’s murder t rial, the trial court
included deadly

- force se lf

- defense instructions which contained “general duty to

retreat ” instruction s

. 2 Lozano v. State , PD

- 1319

- 19, 2021 WL 4695809, at *2

. L ozano secured a judgm ent from the E l Paso court of appeal s reversi ng his murder
conviction based on the unobjected

- to erroneous inclusion of the “general duty to

retrea t ” instructions

. Lozano v. State , 08

- 17

- 00251

- C R, 2019 WL 5616975, at *15 (Tex. App.

—

El Paso Oct. 31, 2019), rev 'd , PD

- 1319

- 19, 2021 WL 46 95809 (Tex. Crim. App. Oct. 6, 2021)

. The Court of Criminal appeals reversed , finding the
error harmless because Loza no was not entitled to the self

- defense instruction

. Lozano v. State , PD

- 1319

- 19, 2021 WL 4695809, at * 8

. I n its harm analy sis, the
Court of Criminal Appeals addressed a problem it perceived in the El Paso court ’ s application of the deadly

- force self

- defen se statute :
[ W ] e do not agree that sa tisfaction of the “ordinary and prudent person” obviates the need f or evide nce to show that a defenda nt actually believed that the use of deadly force was immediately necessary

. Id . at * 6. Fill ing this gap in the El P aso court ’ s analysi s, t he Court of Criminal
A ppeals detail ed the relevant evidence on th is p oint in the light mo st fa vorable to
L oz a no , and then analyzed that evidence

. It recited that Lozano was sitting in the
driver ’ s sea t of his truck in a parking lot brandish ing a gun after a man , Jorge ,

(Jan. 12, 2022)

.

2 As the Court of Criminal Appeals explained in Lozano , since 2 011 it has deemed such “general duty to re treat ” instruction s erroneous and an improper comment on the weight of the evidence. Id. at *2, citing Morales v. State , 357 S.W.3d 1, 6 (Tex. Crim. App. 2011).3

threw a full can of beer into his tru ck , that Jorge then ran around and p unche d
Lo zano through the open window , and that Lozano the n shot Jor ge three times. Immediately after setting these facts, the Lozano court remar ked : Appellant never spoke during the encounter or about the altercation fol lowing the encounter , and ther e is n o evidenc e about Appellant's demeanor that is favorable to him

. Id
., at *7

. E ven though there was evidence sufficient to establish th e object ive prong (or the “ordinary and pru dent person” standard )
, the court was left to
sp eculate about the defend ant ’ s state of mind about those same fa cts and events

. Id.
The court explained the fac t that “Jorge ran around the truck an d punched [Lozano] through the open driver's side window” does not alone explain whether Lozano actually believed he needed to use de adly force

. Id

. (“It might be that Appellant believed that he was justified in using deadl y force against Jorge, but no ev idence supports that concl usion.”) The Lozano court concluded the record lacke d any evidence to suppor t the subjective

- belief elemen t of his s elf

- de fense
, the
conclusion that Mr. Lo zano believed that the us e of deadly force was immediately

n ecessary. Id

. In the absence of such ev idence, because Mr. Lozano was not
entitl ed to a ny self

- def ense instruction , the error of including the ins truction
, even with the erroneous “general duty to retreat ” lan guage, was harmless under an

egre gious harm analysis

.
T he issue in this case is simi lar to the issue in Lozano , bu t t he facts born by
the evidence relevant to analyzing that issue are not con ceptually the same, not comparable , and not analogous. Moreover , t his court ’ s opinion did not by

- pass the subject i ve a state of mind analysis

. As we noted in the opinion, the record includes
facts about what appellan t said to Travis on the night of the mu rder conce rning her4

encounter with Paul
, and Travis ’ s testimo ny about her demeanor

. 3 T he Lozano court specifically rem arked that similar evidence was not in its record. The facts
viewed in a light most favorab le to appellant include appellant ’ s remarks ab out her

en counter with Paul

— that he tried to rape her, and her demeanor as evidence that
she actually believed that the use of deadly force was immed iately necessary to th wart a sexual assau lt.

The State ’ s motion for rehearing is denied and dismisses the S tate's mot ion
for en banc reconsideration as moot without prejudice to filing a new motion for rehearing or for en banc reconsideration in light of t his supplemental opinion

.

/s/ Randy Wilson Justice

Panel con sis t s of J ustic e s Zimmerer
, Poissant , an d Wilson. Do Not Publish

— Tex. R. App. P. 47.2(b).

3 The op inion states: “ T ravis testified that appellant was “startled” or “ne rvous” or “in shock ” when h e encountere d appellant, and on one occasion when asked about it, Travis testified that the first thing she told him was that Paul tried to rape her, and this wa s the basis for her mental state. ( ‘ Q. And she seemed startled, true? A. A li ttle bit, like, the man tried t o rape me. ’ ). ”