Cuevas, Victor Hugo

Cuevas had his friend Egbe wait while he walked over to sell marijuana to a buyer in a car. The marijuana deal went south. Cuevas claimed the buyer put a gun to his head, choked him, robbed him of his phone and the  marijuana, and told him to get out. Cuevas said he did, and when the buyer cocked his gun and threatened him, Cuevas drew his handgun and shot at the buyer as he was driving away and Cuevas pursued him on foot. Egbe joined in, also shooting into the car. The driver was shot in the right side of the face and through the back and died soon thereafter. Two bags of marijuana were found in his car. Cuevas was charged with murder. The State tried Cuevas both as a principle and as a party to Egbe’s conduct. 

Cuevas testified to his claim that he was being robbed when he shot the driver and was given a self-defense instruction that included a limitation on self-defense if he provoked the difficulty. It also instructed that there was no presumption of reasonableness if he was engaged in criminal activity at the time. The prosecutor wrongly argued in closing that the defendant “cannot use deadly force to protect against the imminent commission of aggravated robbery if he’s also committing another crime.” The jury implicitly rejected his claim of self-defense and convicted him of murder. 

On appeal, Cuevas reiterated multiple challenges he made to the jury charge. The court of appeals assumed it was error to instruct on provoking the difficulty but held it was harmless  because the State didn’t even discuss that issue at argument and the defense told the jury there was no evidence to support it. The court of appeals agreed with Cuevas that no instruction should have been given on the presumption of reasonableness since there was no dispute Cuevas was then engaging in criminal activity (because of the marijuana deal). But it held any harm therefrom was theoretical, in part because the self-defense charge operated independently of the presumption-of-reasonableness instruction and because the defense corrected the prosecutor’s misstatements, explaining that being engaged in criminal activity only removes the presumption, not the whole of self-defense. The court of appeals also rejected Cuevas’s claim that the jury charge should have permitted the jury to acquit him as a party to Egbe’s conduct if they believed Egbe was shooting in self-defense or defense of Cuevas, concluding that defense of a third person doesn’t apply that way. 

Cuevas argues that some harm resulted from the self-defense-instruction errors. The court of appeals failed to consider multiple misstatements (and the trial court’s erroneous rulings on objections) throughout the trial conveying to the jury that engaging in criminal activity foreclosed self-defense altogether. He contends that the charge was confusing to jurors and omitted language that would have clarified the law, such as by explaining that even if the jury found the presumption did not apply, it should still go on to consider self-defense. He cites caselaw in support of his argument that it is reversible error to include a provoking-the-difficulty instruction when not raised by the evidence and to deny defense instructions regarding a co-defendant shooter when the jury is charged on the law of parties.