Terry Ray McMillan v. State, 05-14-01419-CR

Background

In March 2005 Charles Calhoun was shot outside his apartment and later died; Terry Ray McMillan (Appellant) admitted firing two shots but testified he acted in self‑defense after Charles allegedly produced a gun. The jury convicted McMillan of murder and sentenced him to 40 years.
Most eyewitnesses placed McMillan near Charles with a gun; only one witness (Alexia) testified she saw McMillan shoot Charles; others testified they saw McMillan standing over Charles but did not witness the actual discharge.
Ballistics evidence included two .45 shell casings recovered at scene and bullet fragments recovered later; forensic gaps and rain at the scene complicated residue and range analysis.
The defense argued (1) the State failed to rebut self‑defense beyond a reasonable doubt; (2) at most the evidence supports manslaughter (recklessness); (3) trial error occurred from prejudicial cross‑examination about alleged drug dealing and improper punishment‑phase argument; and (4) a critical blown‑up photograph (State’s Exhibit 23), used to map witness positions, was destroyed post‑trial, hindering appellate review.
Procedural posture: judgment entered May 25, 2006; late notice of appeal was allowed by the Court of Criminal Appeals (out‑of‑time appeal granted in a later habeas proceeding); this brief is McMillan’s appellate brief raising ten points of error and requesting reversal, remand for new trial, or reform to manslaughter.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (McMillan)	Held / Trial Court Disposition
1. Sufficiency re: self‑defense	The jury implicitly rejected self‑defense; eyewitness and ballistic evidence support murder conviction	State failed to carry persuasion burden to disprove self‑defense; testimony and evidence leave reasonable doubt	Jury convicted; on appeal McMillan argues insufficiency and seeks acquittal or reversal (appeal pending)
2. Lesser‑included offense (manslaughter)	Murder fits because a deadly weapon was used	Even if guilty, mens rea was recklessness not intent; conviction should be reformed to manslaughter and remanded for punishment	Jury was charged on manslaughter but rejected it; McMillan asks appellate court to reform judgment to manslaughter
3. Lost exhibit (State’s Exhibit 23)	Exhibit used at trial; State will rely on record copies	Exhibit destroyed while in clerk’s custody through no fault of appellant; absence prevents meaningful appellate sufficiency review -> new trial required under Tex. R. App. P. 34.6(f)	Trial court found exhibit destroyed and appellant not at fault; McMillan seeks reversal/new trial; final appellate ruling pending
4. Improper cross‑examination about extraneous drug dealing	Questions sought impeachment of credibility	Repeated prosecutor questioning expressly suggesting McMillan was a drug dealer was improper, prejudicial, and warranted mistrial despite curative instructions	Trial court sustained objections and instructed jury to disregard but denied mistrial; McMillan argues abuse of discretion on appeal
5. Failure to hold hearing on motion for new trial (new witnesses)	State may contend timeliness or waiver	Appellant filed motion for new trial with sworn affidavit alleging newly discovered witness (Charles Alexander); entitlement to evidentiary hearing because matters not resolvable from record	Trial court did not hold hearing; McMillan asks abatement for hearing
6. Improper punishment‑phase jury argument (victim/community pleas)	Prosecutor urged jury to ‘speak for the victim/community’	Such argument is improper (invites jurors to place themselves in victim’s shoes or apply community expectations), prejudicial and warrants new punishment hearing	Objections sometimes sustained and sometimes overruled at trial; McMillan seeks new punishment proceeding

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (standard for legal sufficiency review)
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.) (application of sufficiency review under Jackson)
Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App.) (State’s burden to persuade jury beyond reasonable doubt on self‑defense)
Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App.) (defendant’s initial burden to produce evidence raising self‑defense)
Routier v. State, 112 S.W.3d 554 (Tex. Crim. App.) (lost/destroyed‑record analysis and prejudice inquiry)
Collier v. State, 999 S.W.2d 779 (Tex. Crim. App.) (remedy of reforming conviction to lesser included offense and remanding for punishment)
Wood v. State, 18 S.W.3d 642 (Tex. Crim. App.) (test for whether curative instructions cure prejudicial reference)
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App.) (mistrial standards and abuse‑of‑discretion review)