RUBEN BRADOR v. THE STATE OF TEXAS (2026)

DISSENTING OPINION

This case also involves the same error that was at issue in Allen—failing to include “reasonable doubt” language in connection with a defense.¹ The Court in that case found no egregious harm,² and in at least some ways, the facts of the present case are more favorable to the State than in Allen. One consistent circumstance in the present case is Appellant's repeated failure to object. Not only did he not object to the jury charge, but he also did not object at voir dire or during closing argument when the State made comments that implied or suggested an improper burden of proof. Instead, Appellant relied on other circumstances or remedies. The prosecutor retracted the voir dire comment on his own, and Appellant engaged in the “self-help” remedy of discussing burden of proof on his defense in jury argument, a discussion the prosecutor did not push back against. The court of appeals failed to adequately account for either remedial measure, and more importantly, failed to consider the remedies Appellant could have obtained if he had objected at any point. And while the deficiency in the jury charge, if not remedied or mitigated in some fashion, had the potential to affect the defense, it would not by itself have destroyed it, and the jury's quick verdict (within an hour-and-a-half) suggests that the jury did not find the defense to be a weighty claim. Given all of these circumstances, the court of appeals's finding of egregious harm was simply irrational.

A. The Error and Harm Issues

When a defense is raised by the evidence, the trial court must charge the jury “that a reasonable doubt on the issue requires that the defendant be acquitted.”³ The defense of self-defense was submitted in the jury charge, but the charge did not include the statutorily required “reasonable doubt” instruction. The court of appeals determined that the trial court erred in omitting such an instruction or in failing to otherwise charge that the State had the burden to prove beyond a reasonable doubt that self-defense did not apply.⁴ Because Appellant did not object to this error, the applicable standard of harm was “egregious harm.”⁵ Had he objected, the more lenient standard of “some harm” would have applied.⁶ Regardless of which harm standard applies, courts analyze the same four factors: (1) the jury charge as a whole, (2) the entirety of the evidence, (3) the arguments of counsel, and (4) any other relevant factors present in the record.⁷

The applicable harm standard ought to crucially affect how an appellate court views and balances those factors, and that figures into some of my disagreement with the court below. But the lower court's analysis of the individual factors is also wanting, so I proceed to each factor before addressing how to balance them.

B. The Harm Factors

1. The Jury Charge

The court of appeals concluded that the entirety of the jury charge did not “ameliorate” the deficiency in the jury instructions.⁸ In arriving at this conclusion, the court of appeals relied in part on Allen.⁹ Here, as in Allen, the jury charge's application instructions on a defense failed to require the jury to acquit the defendant if it had a reasonable doubt on the elements of the defense.¹⁰ And this failure occurred in essentially the same way. The “self-defense” application paragraph in Appellant's case provided in relevant part:

[I]f you find and believe from the evidence beyond a reasonable doubt that the Defendant ․ did then and there intentionally, knowingly or recklessly cause bodily injury ․ but you further find from the evidence that at the time the Defendant was under attack or attempted attack ․ and ․reasonably believed that such force as he used was immediately necessary to protect himself ․then you will acquit the Defendant and say by your verdict not guilty.11

Likewise, the “consent defense” application paragraph in Allen provided in relevant part:

[I]f you find from the evidence, beyond a reasonable doubt, that the defendant, Kimberly Lynn Allen, struck Jackie Dubendorf with her hand; but, you further find from the evidence that Jackie Dubendorf effectively consented to the strike by her conduct, you will acquit Kimberly Lynn Allen and say by your verdict, “not guilty.”12

The jury charges in the present case and in Allen also contained a generic burden of proof section. These sections largely overlapped, but Appellant's jury charge contained some extra language that I have italicized:

In all criminal cases the burden of proof is on the State. All persons are presumed to be innocent, and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the Defendant unless the jurors are satisfied beyond a reasonable doubt of the Defendant's guilt after careful and impartial consideration of all the evidence in the case. The prosecution has the burden of proving the Defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the Defendant.13

In Allen, this Court concluded that the generic burden-of-proof section in its case referred solely to the elements of the offense and thus disagreed with the State's contention that the section ameliorated harm:

But these reasonable-doubt instructions, by their terms, apply to the elements of the State's case, not to confession-and-avoidance type of defensive issues such as self defense or consent. They do not amount to an abstract instruction that any reasonable doubt as to a defensive issue must be resolved in the appellant's favor, to which we could reasonably assume the jury would refer in applying the application paragraph on consent.14

The court of appeals relied specifically on this language to arrive at the same conclusion about the generic burden-of-proof section in Appellant's jury charge.¹⁵

But as my italics shows, Appellant's burden-of-proof section contained an extra sentence that suggested that the burden of proof was generally on the State: “In all criminal cases the burden of proof is on the State.” Had that extra sentence been in Allen's burden-of-proof section, it might possibly have affected the Court's conclusion regarding the tenor of that section.

Moreover, there were two other significant differences between Allen and Appellant's jury charge, and while one of those differences weakly favors a finding of harm, the other strongly cuts against a finding of harm. The first difference is that Appellant's application paragraph on the offense itself contained an odd transitional instruction:

[I]f you find [the various elements of the offense listed in the indictment] ․ you will find the Defendant guilty of the offense of assault family violence and you will then proceed to consider whether the Defendant's conduct was justified as set out in Paragraph 5 below.

This odd transitional instruction specified that the jury find defendant “guilty” if it has found the indictment elements even before deliberating on the self-defense instructions, though the instruction still told the jury that it had more to do, and later instructions made it clear that the jury still had to consider the self-defense issue before delivering a guilty verdict. That kind of instruction looks a lot like a transitional instruction for a lesser-included offense.¹⁶ Such an instruction might perhaps buttress the notion that the burden-of-proof language in Appellant's jury charge applied only to the elements of an offense, though it does not do so explicitly and would require a great deal of explanation to establish the inference.

The second difference is more straightforward. In Allen, the jury charge contained two defenses: self-defense and consent.¹⁷ The self-defense instruction did contain the proper burden-of-proof language that was lacking in the consent instruction.¹⁸ We concluded that “a reasonable juror would more likely construe this conspicuous difference in the two defensive instructions as an indication ‘that there were different burdens on the two defenses.’ ”¹⁹ But in the present case, only one defense was at issue, so the jury was not faced with an obvious inference to be drawn from the disparate treatment of defenses. The jury here had no specific guide on how to treat a defensive issue for burden-of-proof purposes, and absent one, a reasonable jury would most likely fall back on the generic instructions that generally placed the burden of proof on the State. Those generic instructions suggested that burden of proof was binary: the State had it, and the defendant didn't.

So the present case contains two facts that make the jury-charge factor more favorable to the State than in Allen. Significantly, Allen ultimately found no egregious harm, despite concluding that the jury-charge factor in its case weighed in favor of harm.²⁰ Contrary to the court of appeals, I would conclude that the jury-charge factor in the present case weighs against a finding of egregious harm.

2. The Evidence

The court of appeals concluded that the evidence factor weighed in favor of harm because the trial evidence conflicted on whether the complainant was the aggressor or the victim.²¹ In Allen, the victim made statements that could be construed as consent or as mere bravado in the face of aggression.²² Allen, however, concluded that a construction of the victim's statements as consent, while possible, was not plausible, and so found the evidence factor to weigh against a finding of egregious harm.²³

In the present case, while the stories of the defendant and the victim conflicted as to what happened on the day of the incident, the State produced photos of bruising on the victim, including photos from a separate assault, and the defendant never produced photos of any injuries to himself. He failed to do so despite the fact that he claimed that the victim assaulted him a number of times. And the State's photo of the victim after the incident giving rise to the prosecution—depicting fresh injuries to the victim's face, especially around the nose area—seems quite damning.²⁴ This photo corroborated the victim's testimony that Appellant slammed the victim's face onto a kitchen counter.

Appellant did produce a video of a separate incident—after he had been arrested twice for assaulting the victim—which he claimed was an assault by the victim upon him. The video seems to show the victim grabbing Appellant and pulling him down on top of her. Appellant repeatedly asks or tells the victim to let him go. At one point he exclaims that she bit him. But the video is from a phone Appellant was carrying in his hand, and that video is brief, choppy, and captures only a very limited area of view. It does not show her biting him, and the conduct by her on the video appears to be relatively mild. The video also shows Appellant being on top of the victim and at some point having his hand close to, or perhaps on, the victim's neck. The victim was originally charged with assault for that incident, but the charge was later dismissed.

Appellant had a motive to try to manufacture evidence of an assault by the victim to help with his case. The video also might suggest that Appellant was not in the vulnerable, victimized position he claims to have been in, and he did not corroborate his claim to have been bitten with any photographic evidence, though he would have had a motive to do so. Regardless, any culpable conduct by the victim in the separate incident in the video does not justify the injuries inflicted in the incident for which Appellant was prosecuted and which are reflected in the photo included in the appendix.

While the testimony of Appellant and the victim conflicted, the photographic evidence seems to clearly favor the State. Arguably, the evidence factor tilts in the direction of no egregious harm. But even if we assume that the evidence factor favors a finding of egregious harm, that factor alone is not determinative. If the jury charge or the arguments of counsel adequately conveyed to the jurors that the burden was on the State to disprove self-defense, then it would not matter whether the evidence of self-defense was hotly contested. Or if other information in the record suggested that the jury did not in fact view the case as being close, then that would undermine the idea that a conflict in the evidence mattered.

3. Arguments of Counsel

The court of appeals pointed to one of the prosecutors “seemingly indicating [in jury argument] that [Appellant] had the burden to prove self-defense.”²⁵ The court acknowledged that defense counsel argued it was the State's burden but claims that the argument wasn't explicit enough.²⁶ Ultimately, the court of appeals concluded that the argument factor weighed in favor of egregious harm because the parties’ arguments did not “ameliorate” the jury-charge error.²⁷

The prosecutor who delivered the State's opening jury argument pointed to the lack of defensive evidence and suggested that self-defense was something that one had to “prove”:

For self-defense we need to prove that the other person attacked first. Okay. So we don't have that here. We don't have proof from the defendant that he was attacked first. He said on the stand and he told us a version of a story. He didn't bring us photographs, he didn't bring us video, he didn't bring us absolutely anything else other than saying that he somehow hit her with such force that she spun around, hit her head, and the ended up on the counter. We don't have any of that. So what does that leave us with, that leaves us with our case. That leaves us with our evidence. We presented the photo of Ms. Soat was up here on the stand and presented the version of the story, a very believable version of the story, that he pushed her head. He slammed her head on the counter. So I would just ask that you really think about that self-defense and you know, know that there was really no evidence presented to prove self-defense, thank you.28

It is not improper for a prosecutor to refer to a defendant's failure to produce evidence other than his own testimony.²⁹ But the prosecutor should not have suggested that self-defense had to be proven.

The unfortunate “proof” language used by the prosecutor does not appear to have been a conscious decision to claim that Appellant had the burden of proof on the issue of self-defense. The prosecutor appeared to be focused on the valid argument that Appellant had not presented any photographic evidence to suggest that he had been assaulted.

And crucially, Appellant did not object to this argument. Argument error should itself be objected to in order to preserve the claim, and we should at least be circumspect in evaluating jury-charge error in light of a jury-argument claim that was not preserved.³⁰ While we might relax preservation requirements to some degree when considering whether an improper argument aggravated the harm of a jury-charge error, a party's failure to object at all to an allegedly improper argument should cut strongly against using that alleged impropriety to amplify harm for a different error.³¹ Had Appellant objected to the prosecutor's argument, the trial court could have instructed the jury that the State had the burden to disprove self-defense. The prosecutor might himself have retracted the unfortunate “proof” language. In all likelihood, one of those two things would have happened. If the prosecutor and the trial court had rebuffed such an objection, that would have been cause for concern, but Appellant did not offer them the opportunity to remedy the problem by bringing it to their attention.

Instead, the defense exercised a “self-help” remedy by correctly informing the jury in jury argument that the State had the burden to negate self-defense:

And once we raised self-defense it is now on the State to show that self-defense was not justified in this instance.

This wasn't a lengthy argument, but it was there, and the State did not object to it.

And notably, the State did not continue to utilize the erroneous “proof” language in rebuttal argument. Instead, the rebuttal-argument prosecutor told the jury that the self-defense argument by the defendant “makes no sense.” The rebuttal prosecutor pointed out that Appellant did not call 911, did not record a video of what happened (despite his propensity for recording videos), and testified to an account of events that was inconsistent with the physical evidence. The prosecutor concluded that Appellant's self-defense contention was not “reasonable.” This argument about the reasonableness of the self-defense claim was like the Allen prosecutor's legitimate argument on the reasonableness of the consent defense.³²

And immediately after arguing that the self-defense contention was not reasonable, the prosecutor said, “If any of you guys have any doubt here, right, if you think this case is weak, I want you to think about what more we could have given you.”³³ The prosecutor then said that the State gave the jury everything but a video of the crime itself. The “any doubt” and strength-of-the-case statements could reasonably be seen as an acceptance by the State of the burden to negate self-defense—that negating self-defense was also part of the State's case and that the State had proven its case beyond any reasonable doubt.

The court of appeals's position that the defense argument should have been clearer fails to recognize that it was within Appellant's power to ensure that clarity. He could have argued more clearly. Just like he could have objected to the State's proof argument and ensured clarity by requesting an appropriate curative instruction. As it is, he did argue that the State had the burden of proof, and the prosecutor did not counter that argument in rebuttal but gave an argument that could at least be construed as agreeing with the defense on that matter. And to the extent the defense failed to specify that the State's burden was “beyond a reasonable doubt,” the rebuttal prosecutor appeared to fill in that gap by suggesting that if the jury had any “doubt,” the State had provided plenty of proof. In light of this discussion, I would find, contrary to the court of appeals, that the arguments-of-counsel factor weighs against a finding of egregious harm.

4. Other Information in the Record

In addressing other information in the record, the court of appeals noted that there were no jury notes asking about how to apply the law on self-defense and that the burden with respect to self-defense was not discussed at voir dire, except for the prosecutor suggesting that “certain things ․ must be met in order to meet and show this defense of self-defense.”³⁴ The court of appeals concluded that, if anything, the prosecutor's statement “seemed to place the burden of proving the defense on the defendant.”³⁵ The appellate court concluded that this factor was “either neutral or weighs in favor of finding egregious harm.”³⁶

The court of appeals failed to provide the entire context of the prosecutor's voir-dire comment. The prosecutor said:

And we talk about this a lot in our society I feel like it's pretty common, but there are certain things that must be met in order to meet and show this defense of self-defense, and that includes -- or sorry, let me take that back. Self-defense can be applied to the degree that it is reasonably and immediately necessary to protect against the use or attempted use of unlawful force, and it has to be proportional to the immediate threat, right.37

Immediately after suggesting that self-defense must be “shown,” the prosecutor retracted the statement. It is true that he didn't correct the statement, but the prosecutor's use of the word “show” was offhand, anyway. After being retracted, that statement had no significance whatsoever. Moreover, Appellant did not object to the prosecutor's statement. Had he objected, the prosecutor likely would have corrected himself, or the trial court would have done so.

Notably, the State's brief to the court of appeals prominently highlighted the quickness of the jury's verdict as “relevant information in the record.”³⁸ The court of appeals made no response to that argument in its opinion.³⁹

The jury charge shows that it was signed by the trial judge with a date and time of July 26, 2023 at 1:25 p.m. When the jury delivered its verdict, the presiding juror filled out the date and time with the same date at 2:48 p.m. So, the jury took about 1 hour and 23 minutes to find Appellant guilty—a fairly quick verdict.

A quick verdict might not always cut against harm. For example, in Cuevas, the jury was told that evidence of self-defense simply did not matter because Appellant was (by the defense's own admission) committing a crime.⁴⁰ If the jury believed that, then a short deliberation would not have been unexpected.

But in the present case, the jury was not told anything that could be construed as foreclosing a review of the defensive evidence. Even if the jury had believed that the defense had the burden on self-defense or that some unspecified lesser burden applied to the State, that would not have prevented the jury from considering the defendant's evidence of self-defense. The jury would still have had to resolve whether self-defense applied, whatever burden was connected with it. If self-defense were really an important issue that concerned the jury, one would have expected the jury to have spent more time deliberating. A longer deliberation period would have given some heft to the notion that a correct instruction regarding the State's burden on self-defense would have made a difference. A short deliberation suggests that the jury was never going to buy the self-defense argument anyway. Contrary to the court of appeals's conclusion, I conclude that the other-relevant-information factor weighs against a finding of egregious harm.

C. Weighing the Factors

The “some harm” standard that applies when there is an objection is relatively forgiving, requiring reversal when there is “any harm, regardless of degree,” so long as it is “actual—rather than merely theoretical—harm.”⁴¹ By contrast, “Egregious harm is a difficult standard to meet.”⁴² To find egregious harm, we must be able to conclude that the defendant “did not receive a fair and impartial trial.”⁴³ We have said that egregious harm occurs when the error “affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.”⁴⁴

Appellant was not deprived of a fair trial. When the prosecutor suggested in opening jury argument that Appellant had the burden of proof on self-defense, the defense could have requested trial-court intervention but did not. Instead, the defense availed itself of the self-help remedy of stating that the State had the burden, and the specifics of that self-help remedy were entirely under the defense's control. In its rebuttal argument, the State did not dispute the defense statement that it had the burden on self-defense and in fact impliedly agreed with it and at least impliedly suggested the standard of confidence for that burden as being beyond a reasonable doubt. Moreover, the jury charge contained generic burden-of-proof instructions that supported a conclusion that the State had the burden beyond a reasonable doubt to negate self-defense. And it is unlikely that the exact burden of proof on self-defense mattered anyway. The photographic evidence of the victim's injuries was damning and the jury delivered a quick verdict suggesting that self-defense was not a burning issue that would have been affected by a burden-of-proof instruction. For all these reasons, I would also conclude that the error in the jury charge did not affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.

If we were counting factors, I would conclude that at least three, and possibly all four, factors weigh against a finding of egregious harm. But it is the logic of those factors and how they interact that I find especially persuasive. Between the defense's self-help strategy, the State's rebuttal response, and the existing jury instructions, the jury had enough to conclude that the State had the burden to negate self-defense beyond a reasonable doubt. If the defense wanted more specificity or clarity, it could have asked. And ultimately, the record suggests that the jury wasn't going to buy self-defense anyway, regardless of the burden.

I would grant review to address, and ultimately reverse, the court of appeals's egregious-harm determination. Because the Court does not, I respectfully dissent.

APPENDIX

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FOOTNOTES

1.   Allen v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008).

2.   Id. at 265-66, 268.

3.   Tex. Penal Code § 2.03(d).

4.   Brador v. State, 729 S.W.3d 434, 444 (Tex. App.—Austin 2025).

5.   See Mendez v. State, 545 S.W.3d 548, 551-52 (Tex. Crim. App. 2018).

6.   See Elizondo v. State, 487 S.W.3d 185, 204 (Tex. Crim. App. 2016).

7.   See Campbell v. State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022) (“some harm” analysis); Reed v. State, 680 S.W.3d 620, 626 (Tex. Crim. App. 2023) (“egregious harm” analysis).

8.   Brador, 729 S.W.3d at 445-46.

9.   Id. at 446.

10.   See Allen, 253 S.W.3d at 263.

11.   Brackets inserted. Ellipses inserted to focus on the relevant language. Emphasis added.

12.   See id. (brackets inserted, emphasis added).

13.   Compare to id. at 265.

14.   Id.

15.   Brador, 729 S.W.3d at 446 (quoting from Allen, supra).

16.   See Sandoval v. State, 665 S.W.3d 496, 532 (Tex. Crim. App. 2022).

17.   See Allen, 253 S.W.3d at 264.

18.   See id.

19.   Id.

20.   See id. at 265-66.

21.   Brador, 729 S.W.3d at 447-49.

22.   253 S.W.3d at 268.

23.   Id. at 267-68.

24.   See appendix.

25.   Brador, 729 S.W.3d at 447 (bracketed material added for clarity).

26.   Id. at 446 (“However, he did not explain that the jury should acquit if it had a reasonable doubt about whether self-defense applied or that the State had to disprove self-defense beyond a reasonable doubt.”)

27.   Id. at 447.

28.   Emphasis added.

29.   Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000); Banks v. State, 643 S.W.2d 129, 135 (Tex. Crim. App. 1982).

30.   See Anderson v. State, 932 S.W.2d 502, 507 (Tex. Crim. App. 1996) (rejecting a claim that an improper, but unobjected to, reference to parole required submission of a requested jury instruction that was not otherwise required).

31.   Cf. Cuevas v. State, — S.W.3d —, No. PD-0144-25, 2026 WL 899833, *10 (Tex. Crim. App. April 2, 2026) (“The only thing that might prevent this [argument] factor from weighing heavily in favor of harm is the fact that the defense's objection [to the prosecutor's improper argument] was a little late. However, the trial judge had been consistently overruling these types of objections, and this objection was made early enough for the judge to issue a curative instruction.”) (bracketed material added for clarity, emphasis added).

32.   See Allen, 253 S.W.3d at 266 (The prosecutor argued, “Jackie Dubendorf did not consent. The ladies and gentlemen, it is up to you to decide if it's reasonable to believe that Jackie Dubendorf walked up there wanting to get hit. Is that reasonable?” This Court concluded, “In our view, the prosecutor's remarks reflected an accurate and appropriate explication of the law of consent quite apart from the matter of which party bore the burden of proof.”).

33.   Emphasis added.

34.   Brador, 729 S.W.3d at 449.

35.   Id.

36.   Id.

37.   Emphasis added.

38.   See State's brief to the Court of Appeals, pp. 19, 25.

39.   See Brador, 729 S.W.3d at 449.

40.   See Cuevas, 2026 WL 899833, at *8-9 (prosecutor's misconstruction of the law was “devastating” to the self-defense claim and the jury's later finding on sudden passion suggested that it “thought its hands to be tied on the issue of self-defense”).

41.   Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App. 2019).

42.   Sandoval, 665 S.W.3d at 528.

43.   Reed, 680 S.W.3d at 626.

44.   Id.

Parker, J., filed a dissenting opinion.