AFFIRMED; and Opinion Filed May 21, 2015.




                                           S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-14-00227-CR

                           RONALD KENDRIC MCCOY, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                        On Appeal from the County Court at Law No. 3
                                    Collin County, Texas
                            Trial Court Cause No. 003-86138-2012

                              MEMORANDUM OPINION
                  Before Chief Justice Wright, Justice Myers, and Justice Evans
                                    Opinion by Justice Evans
       Ronald Kendric McCoy appeals his conviction for misdemeanor assault. In his sole

issue, appellant complains of the trial court’s failure to charge the jury on the law as it pertains to

the duty to retreat regarding self-defense. We affirm the trial court’s judgment.

       The incident on which appellant’s conviction was based occurred during a Memorial Day

pool party at the home of his girlfriend’s employer, Troy O’Neil. Richard Kevin Barrett and his

girlfriend Nicole Jewkes also attended the party.          Barrett testified he had met appellant

previously and admitted he did not like appellant. In a statement Barrett gave to the police, he

described appellant as “rude and standoffish.” Barrett and appellant did not interact much at the

pool party. As the party wound down, Barrett was having conversation with a few other guests

about throwing a party for O’Neil at Barrett’s house. Barrett mentioned watching the Ranger’s

game during the party for O’Neill. Appellant interjected a disparaging comment about the
Rangers, using profanity. Appellant’s comment upset Barrett who then went outside for a few

minutes to cool down. Upon re-entering the house and preparing to leave, including saying

goodbye to those present, Barrett walked over to appellant who was sitting at the dining room

table. Barrett extended his arm across the table and shook appellant’s hand while sarcastically

remarking something to the effect that he hoped he “never saw [appellant] again.” According to

Barrett, while he and appellant were still shaking hands, appellant lunged over the table and

struck Barrett in the face with the closed fist of his left hand, knocking Barrett out and breaking

his nose.

        Barrett’s girlfriend Jewkes provided testimony similar to Barrett’s.       She stated that

Barrett’s actions of approaching appellant and shaking his hand were not aggressive. She saw

appellant punch Barrett in the nose while they were shaking hands, causing Barrett to fall to the

ground. Appellant was then on top of Barrett who was on the floor. Jewkes and O’Neil pulled

appellant off Barrett. According to Jewkes, as she and Barrett were leaving, appellant followed

them out screaming at them “to keep this going, something along the lines of like, lets [sic] finish

this, bitch.”

        Appellant’s girlfriend, Megan Mathews, testified that Barrett had a “mad look” when he

was shaking appellant’s hand and made a strange comment. Appellant punched Barrett and then

they were both on the ground. She thought Barrett’s actions and demeanor were threatening and

appellant appeared to be defending himself. O’Neil also testified about the incident. O’Neil

characterized Barrett’s handshake with appellant as “aggressive, not a friendly gesture,” and

agreed his comment was clearly sarcastic.        O’Neil didn’t think Barrett was still holding

appellant’s hand when appellant “took a swing at [Barrett].” O’Neil described Barrett’s behavior

toward appellant as aggressive, cocky, and physically intimidating. He indicated that after




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Jewkes had Barrett in the car, Barrett tried to get out and come back in. O’Neil did not view

appellant’s actions as an assault but felt appellant was defending himself.

       Police detective Scott Epperson testified that he was assigned to investigate the case. He

obtained statements from Barrett and Jewkes, who thought appellant assaulted Barrett. Their

statements conflicted with the statements from Mathews and appellant, who indicated appellant

acted in self-defense. Officer Epperson testified O’Neil, who had a relationship with all the

parties, indicated appellant was really the aggressor and O’Neil had to intervene physically to

push him away. Appellant did not testify at trial.

       At the charge conference, appellant’s counsel requested the trial court to add a “no duty

to retreat” instruction to the general self-defense instruction that was already in the charge. The

trial court denied the request. The jury found appellant guilty of assault causing bodily injury

and sentenced him to forty-five days’ confinement. This appeal followed.

       On appeal, appellant contends his conviction should be reversed because he suffered

some harm as a result of the trial court’s incomplete self-defense instruction which omitted the

no duty to retreat instruction. Among other things, the State argues that because appellant was

not entitled to a self-defense instruction at all, the trial court did not err in submitting an

incomplete self-defense instruction. We agree with the State.

       When reviewing a jury-charge complaint, we must first determine whether error exists in

the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error did not

occur, our analysis ends. Id. Appellant’s complaint fails the first step of our analysis. A trial

court must give requested instructions on every defensive issue raised by the evidence without

regard to its source or strength, even when the evidence is not credible or contradicted.

Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013) (citing Shaw v. State, 243

S.W.3d 647, 657–58 (Tex. Crim. App. 2007)). But before the trial court is required to submit a

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self-defense instruction the defendant must present sufficient evidence to support each element

of the defense. See TEX. PENAL CODE ANN. § 2.03(c) (West 2011). Pursuant to section 9.31 of

the Texas Penal Code, a person is justified in using force against another, “when and to the

degree the actor reasonably believes the force is immediately necessary to protect the actor

against the other’s use or attempted use of unlawful force.” Id. at § 9.31(a) (West 2011). A

“reasonable belief” is one that would be held by an ordinary and prudent person in the same

circumstances as the actor. Id. at § 1.07(a)(42) (West Supp. 2014).

       Here, there is no evidence in the record that appellant possessed a reasonable belief that

force was necessary to protect himself against Barrett’s use or attempted use of unlawful force.

See id. § 9.31(a). The record merely shows that after Barrett re-entered the house, he walked to

where appellant was sitting, shook his hand and made a sarcastic comment, at which point

appellant punched him the face. The witnesses characterizations of Barrett’s behavior as “not

friendly,” “threatening,” “aggressive,” or “physically intimidating,” were conclusions that did

not constitute any evidence that appellant reasonably believed force was immediately necessary

to protect himself from Barrett’s use or attempted use of unlawful force. Without more evidence

of conduct threatening unlawful force, an aggressive handshake and a sarcastic farewell

comment do not provide an objective basis to believe unlawful force is about to be used or

attempted. Because there is no evidence that could support a rational inference of all the

elements of self-defense, appellant was not entitled to a self-defense instruction. Accordingly,

the trial court did not err when it omitted from the charge an instruction on the lack of a duty to

retreat as it related to self-defense. We resolve appellant’s sole issue against him.




                                                –4–
       We affirm the trial court’s judgment.




                                                     /David Evans/
                                                     DAVID EVANS
Do Not Publish                                       JUSTICE
TEX. R. APP. P. 47
140227F.U05




                                               –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

RONALD KENDRIC MCCOY, Appellant                      On Appeal from the County Court at Law
                                                     No. 3, Collin County, Texas
No. 05-14-00227-CR        V.                         Trial Court Cause No. 003-86138-2012
                                                     Opinion delivered by Justice Evans, Chief
THE STATE OF TEXAS, Appellee                         Justice Wright and Justice Myers
                                                     participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of May, 2015.




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