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

Moot; and Supplemental Opinion on Rehearing filed February 24, 2022.

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

SUPPLEMENTAL 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-force self-defense instruction. Subsequently, in connection with that

argument, the State filed a supplemental brief spotlighting a recent Court of 

Criminal Appeals charge-error case, Lozano v. State.

1 The State declares Lozano

1 Lozano v. State, PD-1319-19, 2021 WL 4695809 (Tex. Crim. App. Oct. 6, 2021), reh'g denied
2

“so on-point as to be controlling.” The State contends “the evidence of appellant’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 our original opinion to address this argument. 

In Lozano v. State, at the close of Mr. Lozano’s murder trial, the trial court 

included deadly-force self-defense instructions which contained “general duty to 

retreat” instructions.

2 Lozano v. State, PD-1319-19, 2021 WL 4695809, at *2. 

Lozano secured a judgment from the El Paso court of appeals reversing his murder 

conviction based on the unobjected-to erroneous inclusion of the “general duty to 

retreat” instructions. Lozano v. State, 08-17-00251-CR, 2019 WL 5616975, at *15 

(Tex. App.—El Paso Oct. 31, 2019), rev'd, PD-1319-19, 2021 WL 4695809 (Tex. 

Crim. App. Oct. 6, 2021). The Court of Criminal appeals reversed, finding the 

error harmless because Lozano was not entitled to the self-defense instruction.

Lozano v. State, PD-1319-19, 2021 WL 4695809, at *8. In its harm analysis, the 

Court of Criminal Appeals addressed a problem it perceived in the El Paso court’s

application of the deadly-force self-defense statute:

[W]e do not agree that satisfaction of the “ordinary and prudent 

person” obviates the need for evidence to show that a defendant 

actually believed that the use of deadly force was immediately 

necessary.

Id. at * 6. Filling this gap in the El Paso court’s analysis, the Court of Criminal

Appeals detailed the relevant evidence on this point in the light most favorable to 

Lozano, and then analyzed that evidence. It recited that Lozano was sitting in the 

driver’s seat of his truck in a parking lot brandishing a gun after a man, Jorge,

(Jan. 12, 2022).

2 As the Court of Criminal Appeals explained in Lozano, since 2011 it has deemed such

“general duty to retreat” instructions 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 truck, that Jorge then ran around and punched 

Lozano through the open window, and that Lozano then shot Jorge three times.

Immediately after setting these facts, the Lozano court remarked:

Appellant never spoke during the encounter or about the altercation 

following the encounter, and there is no evidence about Appellant's 

demeanor that is favorable to him.

Id., at *7. Even though there was evidence sufficient to establish the objective

prong (or the “ordinary and prudent person” standard), the court was left to 

speculate about the defendant’s state of mind about those same facts and events. Id.

The court explained the fact that “Jorge ran around the truck and punched [Lozano] 

through the open driver's side window” does not alone explain whether Lozano 

actually believed he needed to use deadly force. Id. (“It might be that Appellant 

believed that he was justified in using deadly force against Jorge, but no evidence 

supports that conclusion.”) The Lozano court concluded the record lacked any 

evidence to support the subjective-belief element of his self-defense, the 

conclusion that Mr. Lozano believed that the use of deadly force was immediately 

necessary. Id. In the absence of such evidence, because Mr. Lozano was not 

entitled to any self-defense instruction, the error of including the instruction, even

with the erroneous “general duty to retreat” language, was harmless under an 

egregious harm analysis. 

The issue in this case is similar to the issue in Lozano, but the facts born by 

the evidence relevant to analyzing that issue are not conceptually the same, not 

comparable, and not analogous. Moreover, this court’s opinion did not by-pass the

subjective a state of mind analysis. As we noted in the opinion, the record includes 

facts about what appellant said to Travis on the night of the murder concerning her 
4

encounter with Paul, and Travis’s testimony about her demeanor.

3 The Lozano

court specifically remarked that similar evidence was not in its record. The facts

viewed in a light most favorable to appellant include appellant’s remarks about her 

encounter with Paul—that he tried to rape her, and her demeanor as evidence that

she actually believed that the use of deadly force was immediately necessary to 

thwart a sexual assault.

The State’s motion for rehearing is denied and dismisses the State's motion 

for en banc reconsideration as moot without prejudice to filing a new motion for 

rehearing or for en banc reconsideration in light of this supplemental opinion.

/s/ Randy Wilson

Justice

Panel consists of Justices Zimmerer, Poissant, and Wilson.

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

3 The opinion states: “Travis testified that appellant was “startled” or “nervous” or “in 

shock” when he encountered 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 was the basis for her 

mental state. (‘Q. And she seemed startled, true? A. A little bit, like, the man tried to rape me.’).”