Court of Appeals of Texas, Sixth District, Texarkana
Submitted: November 30, 2017
Appeal from the 71st District Court Harrison County, Texas
Trial Court No. 14-0403x
Morriss, C.J., Moseley and Burgess, JJ. Opinion by Justice
K. Burgess Justice
jury found Alexis Elaina Walker guilty of murder, the trial
court sentenced her to thirty years' confinement in
prison. Walker has appealed the trial court's judgment,
maintaining that the trial court (1) erred when it failed to
include in its jury charge an instruction on the
reasonableness of her use of deadly force, (2) erred during
the punishment phase because it failed to include an
instruction on the issue of sudden passion, and (3) erred
when it assessed attorney fees against Walker. For the
reasons below, we will modify the trial court's judgment
by deleting the assessment of attorney's fees against
Walker. In all other aspects, we affirm the trial court's
Evidence at Guilt/Innocence Phase
and her husband, Mark Anthony Updyke, went to a restaurant on
the evening of November 28, 2014, where Walker had three
mixed drinks. When they arrived home, Walker and Updyke went
across the street where a group of their friends were sitting
by a fire, and Walker drank four or five more shots of
liquor. During that time, Walker made several trips to the
neighbor's home in order to use the restroom, and her
friend, Lindsey Tucker, went along with her each time. Updyke
asked Walker if she had "something going on" with
Tucker, which Walker understood as an accusation that she and
Tucker were using cocaine. Walker and Updyke began to argue,
and Updyke "stomped home" toward the couple's
home across the street. At some point, Updyke took possession
of Walker's car keys.
followed Updyke, who continued to question her about the
number of times Walker had gone inside the neighbor's
home. When they arrived at their home, Updyke "roll[ed]
a joint, " and the pair continued arguing. After shoving
Walker, Updyke left the mobile home and went back across the
street to join the others.
Walker was alone in the couple's home, she sent Updyke
over forty text messages within a two-hour period, most of
which were laced with profanity. In one message, Walker
accused Updyke of having inappropriate relationships with
married women, and she informed Updyke that she had messaged
their husbands to apprise them of her beliefs. Walker
repeatedly asked Updyke to return her keys, and Updyke
replied, "Let me in and I want a kiss." Walker
responded, "[expletive] off u come in and I will put a
bullet inn [sic] you." When no response from Updyke was
forthcoming, Walker messaged him that she was "setting
[expletive] on fire."
point, Updyke went back to the couple's home. Finding the
door locked, Updyke proceeded to climb through a window of
the home. Walker stated that she ran to her room and
retrieved a gun that she had stored in a "gun box."
Walker said she remembered raising the gun and shooting
Updyke, but she did not remember shooting him four times. In
actuality, Walker shot Updyke once in his chest and three
more times in his back.
her interview with the investigators, Walker described Updyke
as being "mean." She stated that Updyke had been
abusive to her in the past and that he had done so in front
of the children, but that it had "been a while"
since he had physically assaulted her. Walker said she did
not want other people to know about the alleged abuse because
she "[had] children with [Updyke]." When asked if
she was scared of Updyke, Walker explained that he had
threatened to kill her in May by breaking her neck, but she
questioned whether he would ever have followed through with
his threat. According to Walker, she had more nerve than
Updyke did "when [she had] been drinking." Walker
claimed that, when she shot Updyke, she was attempting to
protect herself and that she did not intend to kill him.
also maintained that she was angry with Updyke because he had
accused her of using cocaine that evening. When asked why she
did not simply run out the front door when Updyke entered the
home, Walker explained that, if she had left the house,
Updyke would have locked her out of the home without her
keys. Walker stated that Updyke was aware that she was in
possession of a gun. Moreover, Walker knew that Updyke did
not have a weapon because he had been convicted of a felony,
and he was not allowed to have one in his possession.
Evidence at Punishment Phase
punishment phase of trial, Walker testified that her
relationship with Updyke had always had its "up[s] and
downs" and that they separated quite often. According to
Walker, whenever they separated, she would find other places
to live. Walker stated that Updyke first struck her when she
was "probably five or six months' pregnant."
Walker explained that Updyke's behavior did not
"stand out to [her]" because she "was used to
seeing it" when she was younger. Walker testified,
"There were incidents [Updyke] would grab me by the
throat. Numerous occasions of him taking me by the hair and
pulling me off my feet. I've been kicked while I was down
on the ground. I've been drug through the house."
Walker stated that, during the last year of their marriage,
Updyke had been unfaithful, but she also conceded that she
had been unfaithful as well.
recalled sending several text messages to Updyke on the
evening of the incident and also "throwing stuff out the
windows." She testified, "I don't -- I
can't tell you in what order I did those things. I just
don't' know." Walker stated that, when Updyke
sent the text message to her that he wanted a kiss from her,
she "felt like that was a trick to get [her] to open the
door." According to Walker, she had no plans to hurt,
shoot, or kill Updyke that evening.
asked what was going through her mind, Walker stated, "I
can't -- I can't tell you exactly. I mean, I had been
drinking so much that evening." Walker said that she was
mad and upset at different times during the evening, but that
she was scared "[o]nly when he came to the house."
Walker stated that the only thing she wanted was to get her
keys from Updyke. "I tried -- I tried everything. I
begged him. I tried bargaining with him." Walker said
the only reason she sent Updyke the text message about
burning "stuff" was to convince Updyke to return
stated that, initially, when Updyke came to the house, she
was standing in the kitchen, Updyke remained outside the
house, and they began to argue. According to Walker, Updyke
then attempted to come through the window, and she tried to
stop him by "pushing him down" "[w]ith both
hands, trying to shove him back." When she could not
stop him from coming inside, Walker ran to her room,
thinking, "[O]h, [expletive], he's fixing to get
said she retrieved the gun from her closet, removed it from
the box, "and turned and fired." She continued,
"And, I -- I can't tell you much more than that
because I don't know." Walker said that she
"didn't know what [Updyke] was going to do, "
but that she did not "want to find out." According
to Walker, she was afraid Updyke was "going to do
something worse than he had ever done before[.]" Walker
could not recall how many times she shot Updyke or where she
shot him. Walker then began searching for her telephone.
Eventually, she found her telephone in the kitchen and called
The Trial Court's Jury Instructions
appeal, Walker contends that the trial court's jury
instructions contained error in both phases of the
proceedings, maintaining that (1) during the guilt/innocence
phase, she was entitled to an instruction regarding the
reasonableness of her use of deadly force because Updyke was
committing burglary when he unlawfully entered the home with
the intent to assault her and (2) during the punishment
phase, the trial court erred when it failed to include a jury
instruction on the issue of sudden passion. For the reasons
below, we disagree.
Standard of Review
standard of review for jury charge error is the same
regardless of whether error was alleged to have occurred
during the guilt/innocence phase or the punishment phase. Our
review of an alleged jury charge error involves a two-step
process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.
Crim. App. 1994). Initially, we determine whether error
occurred; we then "determine whether sufficient harm
resulted from the error to require reversal."
Id. at 731-32; see Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g).
The level of harm that must be shown as having resulted from
the erroneous jury instruction depends on whether the
appellant properly objected to the error. Abdnor,
871 S.W.2d at 732.
proper objection is made at trial, a reversal is required if
there is "some harm" "calculated to injure
the rights of defendant." Id. (quoting
Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim.
App. 1977)). But, when the defendant fails to object "to
the charge, we will not reverse the jury-charge error unless
the record shows 'egregious harm' to the
defendant." Ngo v. State, 175 S.W.3d 738,
743-44 (Tex. Crim. App. 2005) (citing Almanza, 686
S.W.2d at 171). In determining whether the error caused
egregious harm, we must decide whether the error created such
harm that the appellant did not have a "fair and
impartial trial." Tex. Code Crim. Proc. Ann. art. 36.19
(West 2006); Allen v. State, 253 S.W.3d 260, 264
(Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171;
Boones v. State, 170 S.W.3d 653, 659 (Tex.
App.-Texarkana 2005, no pet.).
order to preserve error relating to a jury charge, there must
either be an objection or a requested charge."
Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim.
App. 1996). Rule 33.1 of the Texas Rules of Appellate
Procedure requires that a complaint be made "with
sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the
context." Tex.R.App.P. 33.1(a)(1)(A). "[N]o
talismanic words are needed to preserve error as long as the
court can understand from the context what the complaint
is." Clark v. State, 365 S.W.3d 333, 337 (Tex.
Crim. App. 2012).
a trial court is required to charge the jury on any defensive
issue raised by the evidence, "regardless of its
substantive character." Brown v. State, 955
S.W.2d 276, 279 (Tex. Crim. App. 1997). An accused "is
entitled to an affirmative defensive instruction on every
issue raised by the evidence regardless of whether it is
strong, feeble, unimpeached, or contradicted, and even if the
trial court is of the opinion that the testimony" is not
credible. Id. (quoting Williams v. State,
630 S.W.2d 640, 643 (Tex. Crim. App. 1982)). It is within the
jury's purview to decide whether to accept or reject a
properly raised defensive theory. Woodfox v. State,
742 S.W.2d 408, 409-10 (Tex. Crim. App. 1987).