Appeal from the 228th District Court Harris County, Texas
Trial Court Case No. 1389139
consists of Justices Keyes, Brown, and Huddle.
OPINION ON REHEARING
issued our original opinion in this case on December 29,
2016. Appellant, Christopher Braughton, filed a motion for
rehearing. We overrule the motion for rehearing, withdraw our
previous opinion, and issue this substitute opinion. The
disposition remains the same.
Braughton, age 21, shot Emmanuel Dominguez, age 27, on the
street outside Chris's parents' home at approximately
10:00 p.m. The shooting followed an episode of road rage
between Dominguez and Chris's father, Christopher
Braughton Sr., age 40, while Braughton Sr. was driving home
with his wife and other son, age 13. According to the
statement of Chris's mother, Dominguez "cut us off
and then pulled up beside us and followed us home."
Although many of the events after that point are disputed, it
is undisputed that Dominguez and Braughton Sr. engaged in a
physical altercation in which Dominguez punched Braughton
Sr., that Chris ran out of the house brandishing a gun in an
attempt to protect his father, and that the fight stopped at
least momentarily when Dominguez knocked Braughton Sr. to the
ground and Chris first spoke. The evidence is mixed on
whether Dominguez said he had a gun, but the evidence is
undisputed that no gun was found on Dominguez or within his
reach and that Chris aimed his gun at Dominguez and shot him
once, killing him.
found Chris guilty of murder and assessed his punishment at
20 years' confinement. In three issues, Chris argues that (1)
the evidence is legally insufficient to establish that he had
the required mental state to commit murder; (2) the evidence
is legally insufficient to reject his claims of self-defense
and defense of others; and (3) the trial court committed
reversible error by denying his request to provide an
instruction in the jury charge on the lesser-included offense
of deadly conduct.
The Braughton family encounters Dominguez
Dominguez, the complainant, was a United States Marine,
preparing to leave the Marine Corps and using up his vacation
time until his discharge. In early May 2013, Dominguez moved
to Spring, Texas and rented a house with his girlfriend,
Jessica Cavender, who was also a United States Marine and had
recently been assigned as a recruiter in Conroe, Texas. Their
house was on Greenland Oak Court.
24, 2013, Dominguez and Cavender went to a restaurant, where
they ate, drank beer, and socialized. While there, they met
another Marine who invited them to an icehouse, where they
continued drinking. Sometime later, yet another veteran
invited them to a karaoke bar, where they continued
socializing and drinking. While at the karaoke bar, Dominguez
and Cavender got into a verbal disagreement, and Cavender
refused to accompany him to their home. Dominguez, who was
intoxicated, left alone on his motorcycle.
same evening, Chris's father ("Braughton Sr."),
mother ("Mrs. Braughton"), and younger brother were
dining out while Chris, age 21, stayed home at his
parents' house. The Braughtons, like Dominguez, lived on
Greenland Oak Court, but Chris had never met Dominguez. After
dinner, at approximately 10:00 p.m., Braughton Sr. began
driving home, with Mrs. Braughton and their younger son
riding in the family vehicle.
Sr. testified that, as they were nearing their home, he was
driving approximately 15 to 18 miles per hour in an area with
a 20-mile-per-hour speed limit when he saw a "big bright
light" immediately behind his vehicle. He testified that
he then heard "a really loud revving sound, " and
then a vehicle alarm alerted that there was an object very
close to the vehicle's rear bumper. He determined from
the light, the engine sound, and the vehicle's alarm that
a motorcycle was very close behind his car.
to Braughton Sr., Dominguez, who was driving the motorcycle,
came around the side of the car, "tried to swerve into
the side of the car, " then came around the front of the
car and "slam[med] on his brakes." The
vehicle's proximity sensors again sounded. Braughton Sr.
"slam[med]" on his own brakes to avoid hitting the
motorcycle, then sped around the motorcycle and continued
heading home. Dominguez followed the Braughton family onto
Greenland Oak Court, where, unknown to either driver, they
Braughtons approached their house in their vehicle, Mrs.
Braughton called Chris and told him they were being chased.
Braughton Sr. testified that his wife said, "Son,
there's a guy chasing us. I'm scared, " while
Mrs. Braughton recalled saying, "Son, this guy is
chasing us. We are right by the house." The call lasted
less than seven seconds, and Mrs. Braughton did not tell
Chris to come outside, arm himself, or indeed to do anything
at all. Braughton Sr. and Mrs. Braughton testified that they
believed that Dominguez was attempting to rob or carjack
them. No one, however, called either 9-1-1 or a non-emergency
police line at that time.
to Braughton Sr., the motorcycle "start[ed] coming
around the car" again and blocked the Braughtons'
driveway. Braughton Sr. drove around the cul-de-sac at the
end of Greenland Oak Court, stopping on the opposite side of
the street from his home. Dominguez stopped his motorcycle
near the driveway to the home of Robert Bannon, who lived in
the home between the Braughton residence and the house rented
by Dominguez. Bannon, who was sitting in his driveway at the
time, noticed that the motorcycle was only one or two feet
away from the Braughtons' car and "thought
[Dominguez] didn't know how to drive a motorcycle because
he looked like he was kind of wobbling." Dominguez
dismounted or fell off the motorcycle without engaging the
kickstand, and then he either threw down the motorcycle or
let it fall to its side in the street.
Braughton Sr. and Dominguez confront each
to Glen Irving, a neighbor who witnessed the events,
Dominguez "rather quickly" approached the
Braughtons' car, and Braughton Sr. got out of his
vehicle. But according to Bannon, Braughton Sr.
"quickly" got out of the car and "immediately
yelled" at Dominguez, demanding to know, "Why the
f___ you following me so close for?" Both Bannon and
Irving testified that the two men yelled and swore at each
other. Irving also testified that Dominguez began punching
Braughton Sr. in his face and "beating him up, "
while Braughton Sr. attempted to defend himself.
Sr. testified that, while these events were unfolding, he was
yelling to his wife, "Get inside, " and, "Call
9-1-1, " at which point Dominguez began punching him.
Braughton Sr. testified that Dominguez hit him two or three
times. Dominguez then knocked Braughton Sr. to the ground.
This altercation occurred closer to the motorcycle than to
the Braughtons' car.
Chris, who was inside the Braughtons' home, had run to
the front door and heard a "loud motorcycle noise."
He went to his parents' bedroom, where he kept a
9-millimeter handgun that he had purchased approximately
three months earlier. He retrieved the gun and the magazine,
which was kept separately, inserted the magazine into the
gun, and pulled back the slide to chamber a bullet. At this
point, according to Chris, the safety mechanism on the gun
was disengaged and the gun was ready to fire.
the altercation between Dominguez and Braughton Sr., Chris
came out of his parents' house with the loaded gun, saw
Dominguez hitting Braughton Sr., and said two or three times,
"I have a gun, " or, "Stop, I have a
gun." Chris testified that, when he left the house, he
had not seen or heard that anyone outside had a weapon of any
kind and did not know who had started the fight. There is no
evidence in the record that Chris knew that a physical fight
was underway before he left the house with a gun. And Chris
conceded at trial that the fight was closer to the motorcycle
than to the car, indicating that his father had moved farther
than had Dominguez. Braughton Sr. did not see Chris exit the
house; rather, he first saw him when Chris was three feet
away from Dominguez, pointing the gun at Dominguez. According
to Mrs. Braughton's sworn statement, she said around this
time, "Chris, go, you know, take the gun inside. Take
the gun inside."
Dominguez reacts to the gun
at trial gave conflicting accounts of what happened next.
Chris, Braughton Sr., Mrs. Braughton, and Irving all
testified that Dominguez then verbally responded to Chris and
either moved toward or reached into the saddlebags on the
motorcycle. The details of their testimony, however-whether
Dominguez indicated that he had a gun and whether he actually
reached his motorcycle, which was some unspecified distance
away from the fight-conflicted. Specifically, Chris testified
that Dominguez said, "Oh, you have a gun, m___ f___ . I
have a gun for you, " then reached into a saddlebag on
the motorcycle. He later testified, however, that Dominguez
used the word "something, " not "a gun."
to Braughton Sr., Dominguez "reache[d] down and he
[said], 'You got a gun, m___ f ___, I have something for
your f___ a___.'" Elsewhere in his testimony,
however, Braughton Sr. recalled that Dominguez said
"gun, " not "something." Braughton Sr.
specifically testified that Dominguez "reache[d]
in[to]" the saddlebag before he was shot.
Braughton testified that Dominguez "reache[d] towards
his bike, the boxes on his bike, " and quoted him as
saying, "You have a gun, m___ f___ . I have something
for your a___." Elsewhere in her testimony, she reported
the second sentence as, "I have a gun for your
a___." She also testified that she saw Dominguez
reaching toward his motorcycle while she was running into her
Irving testified that Dominguez "turned and started back
towards the motorcycle, and [Irving] heard a voice say,
'Yeah, I got a gun, too . . . .'" When pressed
to "recall exactly what [he] heard, " Irving said
that he heard either "I got a gun, too, " or
possibly, "I've got something for you . . . ."
He testified that he could not "say 100 percent
positively" which statement he heard. Although Irving
testified that Dominguez moved toward the motorcycle, he did
not see Dominguez reach into the saddlebags. He testified
that, if Dominguez had done so, he "should have been
able to see it" from his vantage point, but he could not
"say positively that [he] would have seen it."
testified that Dominguez was positioned with the saddlebag to
his left, reached across his body with his right arm, turning
as he did so, and began to straighten up. Similarly,
Braughton Sr. testified that Dominguez reached toward a
saddlebag on the motorcycle, "just grab[bed] the box and
open[ed] it, " then reached into it.
high-school junior who also lived on Greenland Oak Court,
testified with a different account. Gina watched events
unfold from her second-story bedroom window in a house across
the street. Gina testified that she could not see many
details of the scene "clearly" because a
light-blocking screen on her window made her view of the
street "blurry." She could not see faces clearly
and did not see a gun, but testified that she heard Mrs.
Braughton tell Chris, "Put the gun down." Gina
further testified that, instead of complying, Chris replied,
"No, I got a gun now, " and walked toward
Dominguez, who "stopped and put his hands up" and
"slowly back[ed] up." Gina physically demonstrated
the shooting at trial on direct examination, but the record
does not reflect any testimony regarding the orientation of
Dominguez's body with respect to either Chris or
Chris's gun. Gina did not see Dominguez approach the
motorcycle, open a saddlebag, or reach for anything.
Chris kills Dominguez
remaining sequence of events is undisputed. Chris testified
that he "pointed [the gun] towards [Dominguez's]
arm" without "aiming at a specific area on
him" and pulled the trigger. He shot Dominguez one time.
The bullet hit Dominguez under his right armpit, toward the
back of his body. It traveled right to left, "very
slightly upward, " and "slightly back to front,
" puncturing both of Dominguez's lungs and damaging
his "aorta, the major artery coming out from the heart,
" resulting in the loss of at least three liters of
blood. The medical examiner who later examined Dominguez, Dr.
Morna Gonsoulin, testified that such injuries can kill a
person "within seconds."
fell to the ground. According to Gina, Mrs. Braughton then
said to Chris, "What did you do?"
Braughton dialed 9-1-1 on her cell phone and handed the phone
over to Braughton Sr., who talked to dispatch. Braughton Sr.
explained several times during the call that a man had chased
his family and attacked him and that his son-that is,
Chris-shot the attacker. He did not mention any verbal
threats by Dominguez, nor did he say that anyone feared a
carjacking or robbery at any time. Although Mrs. Braughton
and Bannon attempted to perform CPR, Dominguez died on the
scene. Chris placed the gun in the house, waited for the
police, and identified himself as the shooter to police when
they arrived at the scene.
investigating officers took statements from a number of
witnesses, including Gina. The officers made an audio
recording of their interview with Gina. Sergeant A. Alanis of
the Harris County Sheriff's Office testified that he
attempted to take statements from Braughton Sr. and Mrs.
Braughton, but both declined to give statements. Braughton
Sr. testified that he attempted to write a statement, but an
officer took away the clipboard that he was writing on. Mrs.
Braughton gave a written statement in which she wrote that
Dominguez "trie[d] to pull something out of his box on
his bike" but did not mention any threats by Dominguez.
At the time of the shooting, officers did not identify Irving
as a witness.
Evidence at trial
State charged Chris with murder. At trial, Gina testified
that she did not have a relationship with or know the names
of any of the individuals involved, although she recognized
them as her neighbors and was able to associate them with
their respective homes. She identified the participants by
the color of the clothing that they wore on the night in
question and their respective genders. Using those
descriptions, she testified that she saw Braughton Sr. and
Dominguez arguing when Chris came from the direction of the
Braughtons' house "with his right arm stretched out
with a gun in his hand." She testified that Chris
"just walk[ed] straight to [Dominguez] and then he
stop[ped]." Gina stated that Dominguez was backing up
with his arms raised when Chris shot him.
confirmed that her memory of events "would be better
whenever I made the statement" to police on the night of
the shooting than at trial and that everything she had said
in her statement was true and correct. Her statement was
admitted into evidence and played for the jury. In it, as at
trial, she described the participants in the confrontation by
clothing and gender, though she stated that the person in
black-that is, Chris-argued and engaged in a shoving match
with the person in red-that is, Dominguez. She stated that
the person in black had a gun and shot the person in red one
time. At trial, she testified that she had misspoken and that
the person in orange-that is, Braughton Sr.-was the person
who had argued with Dominguez.
State also presented testimony by Bannon, who testified that
he did not "see anyone throw a punch or kick at each
other, " though he was "maybe 20 feet away"
from the confrontation and had "a good view" of
both men. Rather, he testified that Braughton Sr. and
Dominguez were "[j]ust yelling." Bannon heard Chris
say, "I have a gun, " then heard a woman, possibly
Mrs. Braughton, say, "'We're recording you,
' or 'We're recording this.'" He
testified that he "thought there was a fight about to
break out" at the moment when Chris came out of the
house. When Bannon saw that Chris had a gun, he went into his
home to retrieve a rifle to "try to [defuse] the
situation [and] have [Chris] put his gun down." He
testified that he neither saw nor heard the shot being fired.
By the time Bannon returned to his front door, Dominguez was
lying on the ground, so Bannon went outside without the
State called three investigating law enforcement officers:
Corporal J. Talbert of the Constable's Office, Precinct
4; Sergeant Alanis; and Harris County Sheriff's Deputy D.
Medina. All three had responded to the scene of the shooting.
Corporal Talbert authenticated several photographs as fair
and accurate representations of the scene as it appeared when
he arrived. Several of these photographs show one of the two
saddlebags on Dominguez's motorcycle open. Deputy Medina
testified that she found no gun or other weapons on
Dominguez's person or in his saddlebags but that one of
the saddlebags was open when she arrived on the scene.
Talbert specifically noted "a cell phone . . . towards
the middle of the cul-de-sac." He testified,
"Somebody tried to pick up the cell phone that was in
the cul-de-sac" but he "told them to leave it where
it was." Sergeant Alanis also testified that law
enforcement collected a cell phone in the cul-de-sac and that
he "was advised it was the defendant's
father's." He also testified, "The father
requested the phone back, and I told him it was going to be
evidence until it was downloaded." By the time Alanis
attempted to search the phone, it "had been wiped"
and "appeared like when you buy a brand new phone."
Alanis was not able to recover any information from the
Gonsoulin, the assistant medical examiner who conducted
Dominguez's autopsy, testified that Dominguez died from a
single gunshot wound and that the path of the bullet went
"basically from the right armpit to the left
armpit." For the bullet to follow its trajectory,
Dominguez had to have exposed his right armpit and had his
left side slightly lower than the right when he was shot.
According to Dr. Gonsoulin, this meant that Dominguez could
have been shot while bending, reaching, or extending his
right arm across his body toward his left side. She testified
that the gun could not have been "straight ahead
pointing" at Dominguez's chest. Dominguez could have
been shot while turning, but it was "impossible"
for him to be "shot facing the shooter with his arms
up." She also testified, however, that in general
reaching down and across the body would not sufficiently
expose the armpit, explaining, "There might be an angle
where you could just be reaching down and [the wound area]
would be exposed, but you would have to at least extend your
shoulders slightly to get the differential in the arms."
Dr. Gonsoulin's testimony was supported by photographic
evidence showing that the gunshot wound was under
Dominguez's right arm, an X-ray image showing the bullet
inside the left side of Dominguez's chest, and the
autopsy report describing the bullet's trajectory.
State presented further testimony. Harris County
Sheriff's Deputy F. Williams testified that he
unsuccessfully attempted to recover video from the
Braughtons' home security system. S. Williams, a forensic
chemist, testified that Chris had gunshot residue on both of
his hands when samples were taken shortly after the shooting.
A firearms examiner testified regarding the operation of
Chris's gun. A DNA analyst, Z. Phillips, testified that
she found DNA consistent with Braughton Sr.'s DNA on a
knuckle on Dominguez's right hand but did not find any
DNA consistent with Chris's DNA on Dominguez.
State presented testimony from Cavender regarding her
relationship with Dominguez, their move to Spring, and the
time they spent together the day Dominguez died. Cavender
testified that Dominguez did not have any weapons on his
person or on his motorcycle on the day he died. Her phone and
keys were in the motorcycle's saddlebags at the time of
defense presented testimony from Glen Irving, Braughton Sr.,
and Mrs. Braughton that Dominguez was chasing the Braughtons
erratically down the street and riding "almost on
[their] bumper." The Braughtons all testified that Mrs.
Braughton frantically called Chris while Dominguez was
chasing them. Irving and the Braughtons testified that
Dominguez and Braughton Sr. fought. According to Irving,
Dominguez was "punching and beating up" Braughton
Sr. The Braughtons each testified that at that time they were
afraid for their lives. Irving and the Braughtons testified
that Chris warned Dominguez as the latter was hitting
Braughton Sr., "Stop, I have a gun." They all
testified that Dominguez knocked down Braughton Sr. and went
toward his motorcycle, cursing and threatening that he had
"a gun" or "something for" Chris. Each of
these witnesses also testified, however, that they never saw
a gun or other weapon in Dominguez's possession.
Sr. testified that he lost his phone on the evening in
question. Specifically, he testified that it fell out of his
back pocket when Dominguez punched him. He testified that the
police took the phone and that the Braughtons "kept
asking" where the phone was but that they never regained
possession of it. Mrs. Braughton tracked the phone belonging
to her youngest son, which was also missing, using an app on
her own phone and found that it was "on the next street
and was driving away." An officer returned with that
phone but said he did not have Braughton Sr.'s phone.
According to Braughton Sr., when the Braughtons tracked his
phone, they found that it was in Pasadena, assumed it was
stolen, and remotely reset it to its factory state.
defense also presented Gary Gross, who installed the solar
screen in Gina's bedroom window. He testified that the
screen was a "90 percent Suntex solar screen, "
meaning that it would "block 90 percent of visible
light, " was designed to provide privacy, and would be
difficult to see through at night. According to Gross, at
10:00 p.m., it would be possible to see "some visible
light" through the screen and to "see something,
" but not to "make out what it is." He
confirmed that it would "probably not" be possible
for anyone looking through the screen at that time to
"make out what they are seeing."
testified that he "was just pointing [the gun] at
[Dominguez's] arm" and "just wanted to stop
him." According to Chris, he had the gun in the air
initially, but he brought it down to his hip to fire. He
testified that is not the same way that he would "fire
at a gun range." He testified that he was "[n]ot
behind [Dominguez but] on the side of him" when he fired
the shot. He conceded that he pointed the gun at Dominguez,
pulled the trigger, and thought "that a bullet was going
to hit" Dominguez. He also testified as follows:
Q. You're aware that a bullet hitting somebody can cause
serious bodily injury, correct?
A. Sometimes, yes, sir.
Q. So you were aware that-you were aware that you were
intending to cause serious bodily injury to Manny Dominguez?
A. Yes, sir.
explained that he had "receive[d] some basic information
about the operation of the gun" from the salesperson and
had fired it at a shooting range on two occasions.
trial court charged the jury, instructing it on the offense
of murder and the lesser-included offense of manslaughter.
Additionally, the trial court instructed the jury on the law
of self-defense, defense of a third person, and defense of
property. Chris requested that the trial court also include
an instruction on the lesser offenses of misdemeanor and
felony deadly conduct, but the trial court refused.
jury convicted Chris of murder and assessed his punishment at
20 years' confinement. This appeal followed.
of the Evidence
first two issues, Chris argues that the evidence was legally
insufficient to support his conviction. In the first issue,
he argues that no evidence, whether direct or circumstantial,
establishes that he possessed the required mental state to
commit murder. In the second issue, he argues that the
evidence was insufficient to prove beyond a reasonable doubt
that he did not act in self-defense or in defense of others.
Standard of review
reviewing the sufficiency of the evidence, we view all of the
evidence in the light most favorable to the prosecution to
determine whether any rational factfinder could have found
the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 2789 (1979); see Adames v. State, 353
S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when
determining sufficiency of evidence); Nelson v.
State, 405 S.W.3d 113, 122 (Tex. App.- Houston [1st
Dist.] 2013, pet. ref'd). The jury is the exclusive judge
of the facts and the weight to be given to the testimony.
Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim.
App. 2008). A jury, as the sole judge of credibility, may
accept one version of the facts and reject another, and it
may reject any part of a witness's testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986); see also Henderson v. State, 29 S.W.3d 616,
623 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd)
("Even when a witness's testimony is uncontradicted,
the jury can choose to disbelieve a witness.").
afford almost complete deference to the jury's
credibility determinations. Lancon v. State, 253
S.W.3d 699, 705 (Tex. Crim. App. 2008). We may not
re-evaluate the weight and credibility of the evidence or
substitute our judgment for that of the factfinder.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007) (citing Dewberry v. State, 4 S.W.3d 735,
740 (Tex. Crim. App. 1999)). Rather, we determine
"whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson, 443 U.S.
at 319, 99 S.Ct. at 2789; Thornton v. State, 425
S.W.3d 289, 303 (Tex. Crim. App. 2014). We resolve any
inconsistencies in the evidence in favor of the verdict.
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.
2000); see Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007) ("When the record supports
conflicting inferences, we presume that the factfinder
resolved the conflicts in favor of the prosecution and
therefore defer to that determination.").
evidence is as probative as direct evidence in establishing
guilt, and circumstantial evidence alone can be sufficient to
establish guilt. Sorrells v. State, 343 S.W.3d 152,
155 (Tex. Crim. App. 2011); Clayton, 235 S.W.3d at
778. "Each fact need not point directly and
independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is
sufficient to support the conviction." Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
"Evidence is legally insufficient when the 'only
proper verdict' is acquittal." Nelson v.
State, 405 S.W.3d 113, 122 (Tex. App.-Houston [1st
Dist.] 2013, pet. ref'd) (quoting Tibbs v.
Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211, 2218
jury's ultimate conclusion must be rational in light of
all the evidence. See, e.g., Jackson, 443
U.S. at 319, 99 S.Ct. at 2789; Matlock v. State, 392
S.W.3d 662, 673 n.45 (Tex. Crim. App. 2013); Adames,
353 S.W.3d at 860; Nelson, 405 S.W.3d at 122-23. In
reviewing the sufficiency of the evidence when a jury has
rejected claims of self-defense or defense of others, we must
"determine whether after viewing all the evidence in the
light most favorable to the prosecution, any rational trier
of fact would have found the essential elements of murder
beyond a reasonable doubt and also would have found against
appellant on the self-defense issue beyond a reasonable
doubt." Saxton v. State, 804 S.W.2d 910, 914
(Tex. Crim. App. 1991). When some evidence, if believed,
supports a self-defense claim, but other evidence, if
believed, supports a conviction, we, as an appellate court,
"will not weigh in on this fact-specific determination,
as that is a function reserved for a properly instructed
jury." Reeves v. State, 420 S.W.3d 812, 820
(Tex. Crim. App. 2013).