                                                                             PD-0257-15
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                           Transmitted 4/8/2015 2:50:43 PM
                                                           Accepted 4/15/2015 11:59:57 AM
                                                                              ABEL ACOSTA
                             No. PD-0257-15                                           CLERK

                 TO THE COURT OF CRIMINAL APPEALS

                       OF THE STATE OF TEXAS


GREGORY SHAWN HENLEY,                                              Appellant

v.

THE STATE OF TEXAS,                                                 Appellee


                        Appeal from Tarrant County


                                * * * * *

          STATE’S PETITION FOR DISCRETIONARY REVIEW

                                * * * * *

April 15, 2015
                            LISA C. McMINN
                        State Prosecuting Attorney
                          Bar I.D. No. 13803300

                          JOHN R. MESSINGER
                    Assistant State Prosecuting Attorney
                           Bar I.D. No. 24053705

                              P.O. Box 13046
                           Austin, Texas 78711
                        information@spa.texas.gov
                        512/463-1660 (Telephone)
                            512/463-5724 (Fax)

                    ORAL ARGUMENT REQUESTED
    NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

*The parties to the trial court’s judgment are the State of Texas and Appellant,
Gregory Shawn Henley.

*The case was tried before the Honorable Jamie Cummings, Presiding Judge of
County Criminal Court No. 5 of Tarrant County, Texas.

*Counsel for Appellant at trial was Cody Lee Cofer and Lauren R. Crisera, 111 N.
Houston, Fort Worth, Texas 76102.

*Counsel for Appellant on appeal was William S. Harris, 307 West Seventh Street,
Suite 1905, Fort Worth, Texas 76102.

*Counsel for the State at trial was Kris B. Krishna, former Assistant Criminal District
Attorney, and Christopher B. McGregor, Assistant Criminal District Attorney, 401
W. Belknap St., Fort Worth, Texas 76196.

*Counsel for the State on appeal was Debra Windsor, Assistant Criminal District
Attorney, 401 W. Belknap St., Fort Worth, Texas 76196.

*Counsel for the State before this Court is John R. Messinger, Assistant State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.




                                           i
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

   Is a person justified in using force against another to prevent an absent
   third party from possibly using unlawful force in the future?

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

APPENDIX (Opinion of the Court of Appeals)




                                                     ii
                                      INDEX OF AUTHORITIES

Cases
Boget v. State, 74 S.W.3d 23 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . 6

Brazelton v. State, 947 S.W.2d 644 (Tex. App.–Fort Worth 1997, no pet.) . . . . . . 8

Dewalt v. State, 307 S.W.3d 437 (Tex. App.–Austin 2010, pet. ref’d). . . . . . . . . . 8

Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . 8

Henley v. State, __S.W.3d__, 2014 Tex. App. LEXIS 13562
     (Tex. App.–Fort Worth 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Hughes v. State, 719 S.W.2d 560 (Tex. Crim. App. 1986) (en banc). . . . . . . . . . . 3

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . 10

Macias v. State, 13-13-00319-CR, 2015 Tex. App. LEXIS 2319
     (Tex. App.–Corpus Christi Mar. 12, 2015) (mot. for r’hng filed). . . . . . . 1, 7

Murkledove v. State, 437 S.W.3d 17 (Tex. App.–Fort Worth 2014, pet. dism’d). . 8

Delaware v. Van Arsdall, 475 U.S. 673 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Statutes and Rules
TEX. PENAL CODE § 1.07(a)(48) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. PENAL CODE § 9.31(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

TEX. PENAL CODE § 9.31(b)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. PENAL CODE § 9.32(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. PENAL CODE § 9.33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                          iii
                                       No. PD-0257-15

                      TO THE COURT OF CRIMINAL APPEALS

                               OF THE STATE OF TEXAS

GREGORY SHAWN HENLEY,                                                                  Appellant

v.

THE STATE OF TEXAS,                                                                     Appellee


                                          * * * * *

             STATE’S PETITION FOR DISCRETIONARY REVIEW

                                          * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

         Comes now the State of Texas, by and through its State Prosecuting Attorney,

and respectfully urges this Court to grant discretionary review of the above named

cause, pursuant to the rules of appellate procedure.

                 STATEMENT REGARDING ORAL ARGUMENT

         The State requests oral argument. This case tests the limits of entitlement to

self-defense.1 The availability of defenses is critical, but it must be weighed against

the legitimate interest of the Legislature in defining them and the State’s interest in


     1
        See also Macias v. State, 13-13-00319-CR, 2015 Tex. App. LEXIS 2319 at *18-20 (Tex.
App.–Corpus Christi Mar. 12, 2015) (mot. for r’hng filed), which held that a defendant is entitled
to self-defense or defense of a third person in a murder prosecution for killing someone neither he
nor the third person knew was there.

                                                1
fair trials free from needless confusion of the issues. Conversation will assist the

Court in defining the contours of self-defense.

                          STATEMENT OF THE CASE

      Appellant was convicted of assaulting his ex-wife when she picked up their

sons for scheduled visitation. The court of appeals held that the trial court reversibly

erred by refusing to admit testimony that would have supported appellant’s claim that

he was justified in assaulting his ex-wife in order to prevent her then-fiancé and his

ex-stepson, neither of whom were present, from abusing his children.

                 STATEMENT OF PROCEDURAL HISTORY

      On December 18, 2014, the court of appeals reversed appellant’s conviction and

remanded for a new trial in a published opinion.2 The State timely filed motions for

rehearing and rehearing en banc on January 20, 2015. Both were overruled on

February 5, 2015.      The State was granted an extension and its petition for

discretionary review is due on or before April 8, 2015.

                             GROUND FOR REVIEW

  Is a person justified in using force against another to prevent an absent
  third party from possibly using unlawful force in the future?




  2
      Henley v. State, __S.W.3d__, 2014 Tex. App. LEXIS 13562 (Tex. App.–Fort Worth 2014).

                                           2
                         ARGUMENT AND AUTHORITIES

        “[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.”3 “A person is justified in

using force. . . against another to protect a third person if: (1) under the circumstances

as the actor reasonably believes them to be, the actor would be justified under Section

9.31 . . . in using force . . . to protect himself against the unlawful force . . . he

reasonably believes to be threatening the third person he seeks to protect; and (2) the

actor reasonably believes that his intervention is immediately necessary to protect the

third person.”4 In essence, the Legislature places the accused “in the shoes of the

third person.”5 Would an actor be justified in assaulting someone who was using no

unlawful force against him but whose actions might create an opportunity for

someone else to use unlawful force against him in the future?

Facts

        Appellant and his former wife, Brandy, were in a custody dispute over their

two sons. Brandy arrived to pick them up for her scheduled visitation, which is




  3
        TEX. PENAL CODE § 9.31(a).
  4
        TEX. PENAL CODE § 9.33.
  5
        Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986) (en banc).

                                              3
supervised by her mother at her mother’s house.6 Appellant initially refused to

release them and wanted to talk, but put them in Brandy’s car when she called the

police.7 After she was told by the dispatcher to wait for police to arrive, she ended

the call.8 Appellant then ripped off her car door handle.9 When Brandy opened the

door to pick it up, appellant dragged her out of the car by her hair.10 Once on the

ground, appellant got on top of her with his knees on her shoulders, punched her face

with both fists, and banged her head against the concrete.11

        The jury heard that Brandy’s visitation had not always been supervised, and

that appellant was agitated that day and wanted to speak with Brandy instead of

releasing the children to her.12 Appellant wanted them to know more. Outside the

presence of the jury, Brandy acknowledged that visitation had to be supervised

because she would not leave Douglas, her then-fiancé, whom one of her sons accused

of choking him in August of 2011.13 Brandy still lived with Douglas, and later


   6
        5 RR 80.
   7
        5 RR 64, 81.
   8
        5 RR 65.
   9
        5 RR 65.
   10
        5 RR 65-67.
   11
        5 RR 67-68.
   12
        5 RR 81-84.
  13
        5 RR 86, 90. CPS found the accusation not to be true. 5 RR 90. The trial offense was
alleged to have occurred March 3, 2012, at least six months after the alleged choking incident.

                                              4
married him.14 Brandy acknowledged that Douglas’s ex-stepson sexually assaulted

her sons while in her care and that there was a court order prohibiting contact

between him and her sons.15 Appellant argued this testimony was admissible for two

reasons. First, “clearly, my client is reacting to the abuse that had occurred before

that was not discovered by Brandy while she is in the home with this kid. I think that

creates a legitimate concern for the safety of these kids . . . .”16 He added, “[Brandy’s

mother’s] statement of my client’s character for being someone that becomes irate

leaves the jury with a misunderstanding and incomplete impression about my client’s

state of mind and the reason that he may become irate, which is that his children have

been abused while in [Brandy’s] care.”17 The trial court denied his requests.18

        According to the court of appeals, both the alleged errors and resulting harm

“overlap.”19 “The trial court erred by denying Appellant the right to confront and

cross-examine Brandy and her mother to further show his state of mind and further




   14
        5 RR 86.
   15
        5 RR 87, 89.
   16
        5 RR 99.
   17
        5 RR 102.
  18
         5 RR 102, 103. Appellant testified outside the presence of the jury “[f]or the limited purpose
of allowing the [trial court] to reconsider its ruling . . . .” 5 RR 104-113; slip op. at 4-9. Because
the trial court did not change its ruling, appellant did not testify. 5 RR 121-22, 124.
   19
        Slip op. at 18.

                                                  5
develop his justification defense.”20 Regarding harm, “Justifying his conduct based

on the defense of a third party was Appellant’s entire defense[,]” and he was

prevented from presenting evidence of it “[a]t every turn.”21 The court of appeals’

analysis is thus premised entirely on appellant’s entitlement to an instruction on

defense of a third person. If he was not entitled, then the trial court acted within its

discretion to exclude largely irrelevant, unfairly prejudicial testimony.22

Analysis

        Appellant’s entitlement depends on the definitions of “another,” “the other,”

“immediately necessary,” and “unlawful force,” none of which are defined by statute

or by this Court.23

“The other”

        As one court of appeals has recently stated, the language of the self-defense

provisions “logically implies that ‘the other’ who uses or attempts to use unlawful

force as indicated in subsection (a) of section 9.31 is ‘the person against whom the




   20
        Slip op. at 18.
   21
        Slip op. at 21.
 22
        See TEX. R. EVID. 403 (allowing the exclusion even of relevant evidence if its probative value
is substantially outweighed by the danger of unfair prejudice or confusion of the issues).
   23
        This Court has addressed “what it means to direct force ‘against’ another[,]” but did not
define “another” in doing so. Boget v. State, 74 S.W.3d 23, 27 (Tex. Crim. App. 2002).

                                                 6
force was used.’”24 This makes sense, as the presumption of reasonableness of the

actor’s belief is based, in part, on the actor’s knowledge or reason to believe “that the

person against whom” the force or deadly force was used was doing one or more

enumerated acts.25 In this case, appellant believed that the unlawful force from which

it was immediately necessary to protect his sons came from Douglas and his ex-

stepson.26 And while he agreed that “being in [Brandy’s] care was a danger to them,”

and said Brandy was dismissive of his concerns,27 he alleged no conduct on her part

directed at the boys. Yet Brandy was the one assaulted, not Douglas or his ex-

stepson; “another” and “the other” do not match. The plain language of section 9.31

logically prohibits appellant’s claimed justification defense.

“Immediately necessary”

       No force against Douglas and his ex-stepson was “immediately necessary”

because there were no allegations of present, or even recent, misconduct by them.

They were not even there. Cases dealing with necessity are helpful. “[E]ven a

defendant’s sincere belief that his or her conduct is immediately necessary to avoid

imminent harm is unreasonable as a matter of law if the undisputed facts demonstrate


  24
        Macias v. State, 13-13-00319-CR, 2015 Tex. App. LEXIS 2319 at *18 (Tex. App.–Corpus
Christi Mar. 12, 2015) (mot. for r’hng filed) (not designated for publication).
  25
       TEX. PENAL CODE §§ 9.31(a)(1), 9.32(b)(1).
  26
       5 RR 108-09.
  27
       5 RR 110-12.

                                             7
a complete absence of ‘immediate necessity’ or ‘imminent harm’ as those concepts

are defined in the law.”28 This language has been approved by this court of appeals

but ignored in this case.29 Instead of addressing the obvious problems with the

speculative threat posed by absent parties, the court of appeals took a different tack:

it held that the perceived danger lay in Brandy driving away, which was imminent.30

“Unlawful force”

        The act of departing is not a use of force as that term has been defined by this

Court.31 It certainly was not directed against her sons. In fact, the only evidence

regarding the children at the time of the assault is that, “They were screaming, telling

[appellant] to stop, running around him hitting [Brandy].”32 Even if driving away

could be considered “force,” there was nothing “criminal or tortious” about it; she

was attempting to pick up her children on her scheduled day with her mother, who is


   28
        Dewalt v. State, 307 S.W.3d 437, 454 (Tex. App.–Austin 2010, pet. ref’d).
   29
       Murkledove v. State, 437 S.W.3d 17, 25 (Tex. App.–Fort Worth 2014, pet. dism’d) (citing
Dewalt); Brazelton v. State, 947 S.W.2d 644, 648-49 (Tex. App.–Fort Worth 1997, no pet.) (“A
defendant’s belief that conduct was immediately necessary to avoid imminent harm may be deemed
unreasonable as a matter of law, however, if undisputed facts demonstrate a complete absence of
evidence of immediate necessity or imminent harm.”).
   30
       Slip op. at 16; see also Concurring op. at 4 (“The situation—as well as the danger—was
ongoing. The boys were sitting in Brandy’s vehicle, and she was refusing to listen to Appellant’s
concerns and was about to drive away with them.”).
   31
       See Dobbs v. State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014) (adopting the meaning
“violence, compulsion, or constraint exerted upon or against a person or thing,” and “violence or
such threat or display of physical aggression toward a person as reasonably inspires fear of pain,
bodily harm or death”) (citations omitted).
   32
        5 RR 69.

                                                8
a court-ordered supervisor for the visitation.33 Again, there was no testimony that

appellant feared Brandy was actually doing anything to her sons.

Conclusion

        A defendant is not entitled to a defense simply because he testifies to that

belief, even if his attorney relies on entitlement in opening statements.34 There are

certainly situations in which a defendant’s claims are wholly unworthy of belief but

the issue remains one for the jury. This is not such a case. Appellant assaulted his

ex-wife because she was about to leave with the children he placed in her car

moments before,35 on the basis that her leaving might create a future opportunity for

persons not present to harm them. This is not weak, contradicted, or impeached

relevant testimony that is deserving of evaluation by a jury. Rather, it presents a

theory that ignores the plain language of the statute by twisting the meaning of

“another,” “other,” “immediately necessary,” and “unlawful force” beyond all

recognition. Appellant may have had an explanation, but he had no statutory

justification. He was not entitled to defense of a third person as a matter of law.


   33
        See TEX. PENAL CODE § 1.07(a)(48) (“‘Unlawful’ means criminal or tortious or both and
includes what would be criminal or tortious but for a defense not amounting to justification or
privilege.”).
   34
        See slip op. at 14-15.
   35
        It should be noted that his act of placing their sons in Brandy’s care and then stepping into
their shoes to assault her to prevent her from leaving with them creates a bizarre provocation
situation that would have been extremely difficult to explain to the jury. See TEX. PENAL CODE §
9.31(b)(4).

                                                 9
       As a result, the trial court did not abuse its discretion in denying further cross-

examination. “[T]rial judges retain wide latitude insofar as the Confrontation Clause

is concerned to impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice, confusion of the issues,

. . . or interrogation that is repetitive or only marginally relevant.”36 The jury was

aware that there was a custody dispute and could infer that Brandy had done

something to warrant supervised visitation. This was sufficient for whatever

legitimate purpose it served. The excluded testimony was relevant, at best, to

punishment; its only value in the guilt phase was to turn jurors against the victim

based on her parenting instead of focusing on the evidence regarding the offense.

“Although jurors have the raw power to return a verdict that flies in the face of the

facts and the law, they do not have a legal right to do so.”37 “Jury nullification is not

authorized by law,”38 and a trial court should not be required to enable it by admitting

testimony to support inapplicable defenses.




  36
       Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
  37
       Isassi v. State, 330 S.W.3d 633, 640 (Tex. Crim. App. 2010).
  38
       Id.

                                              10
                            PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review, and that the decision of the Court of

Appeals be reversed.

                                       Respectfully submitted,

                                       LISA C. McMINN
                                       State Prosecuting Attorney
                                       Bar I.D. No. 13803300

                                         /s/ John R. Messinger
                                       JOHN R. MESSINGER
                                       Assistant State Prosecuting Attorney

                                       P.O. Box 13046
                                       Austin, Texas 78711
                                       John.Messinger@SPA.Texas.gov
                                       512/463-1660 (Telephone)
                                       512/463-5724 (Fax)




                                        11
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

the applicable portion of this document contains 3,049 words.

                                           /s/ John R. Messinger
                                         JOHN R. MESSINGER
                                         Assistant State Prosecuting Attorney

                          CERTIFICATE OF SERVICE

      The undersigned certifies that on this 8th day of April, 2015, the State’s Petition

for Discretionary Review was served electronically through the electronic filing

manager or e-mail on the parties below.

Debra Windsor
Assistant Criminal District Attorney
401 W. Belknap St.
Fort Worth, Texas 76196
Dwindsor@tarrantcountytx.gov

William S. Harris
307 West Seventh Street, Suite 1905
Fort Worth, Texas 76102
wmsharris.law@sbcglobal.net



                                           /s/ John R. Messinger
                                         JOHN R. MESSINGER
                                         Assistant State Prosecuting Attorney




                                          12
APPENDIX
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00178-CR


GREGORY SHAWN HENLEY                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

      FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
                   TRIAL COURT NO. 1277030

                                      ----------

                                    OPINION

                                      ----------

      A jury convicted Appellant Gregory Shawn Henley of assault causing

bodily injury to a family member, his former wife Brandy.           The trial court

sentenced him to 200 days’ confinement in the Tarrant County Jail.           In two

issues, Appellant argues that (1) the trial court abused its discretion by excluding

evidence showing that his conduct was justified as an act in defense of a third

party and (2) the trial court improperly limited his right to cross-examine and
confront the witnesses against him by excluding extrinsic proof of Appellant’s

statements to the complainant and her mother. Because we hold that the trial

court reversibly erred by preventing Appellant from presenting his defense and

by improperly limiting his right to confront and cross-examine the witnesses

against him, we reverse the trial court’s judgment and remand this cause to the

trial court.

Summary of Facts

       In 2012, Appellant and Brandy were involved in a custody case regarding

their two sons, J.H. and S.H. The two sons lived with Appellant. The family court

ordered that Brandy’s visits with the children be supervised and that her then-

fiancé (now husband) Douglas have no contact with the two sons. These orders

resulted from allegations that in 2011, the two boys had been sexually abused by

Douglas’s stepson, A.G.       Brandy’s mother was designated as someone who

could supervise Brandy’s visits with the children.

       On March 3, 2012, Brandy and her mother drove to Appellant’s home to

pick up the two children for Brandy’s visit. Appellant told Brandy that he wanted

to talk to her, but she refused to speak to him other than to tell him to bring the

children out to the car. Appellant did not initially bring the children to the car, but

after Brandy dialed 9-1-1, he brought the two boys and put them in her car.

Brandy told the 9-1-1 operator that she wanted to make a complaint, and the

operator told her to stay until a police officer arrived.




                                           2
        After Brandy continued to refuse to speak to him, Appellant grabbed the

door handle of the driver’s side door and pulled on it, breaking it. Brandy opened

the door to pick up the door handle, and Appellant pulled her from the car by her

hair.   Appellant dragged her to the ground, held her down with his knees,

punched her in the face, and banged her head on the ground. Appellant then got

up and walked to his driveway, made a phone call on his cell phone, and drove

away in his vehicle. Brandy called 9-1-1 again to report the incident.

        At trial, Appellant sought to introduce evidence about his motivation for his

actions. The trial court allowed him to elicit testimony from Brandy outside the

jury’s presence. Brandy acknowledged in questioning by Appellant’s counsel

that the children had been sexually abused by Douglas’s stepson, A.G., that one

of her sons had made an allegation that Douglas had choked them, and that she

had lied to the family court about the fact that she was still living with Douglas.

        The State objected that allegations of acts that took place in August 2011

were too remote in time to be considered relevant to Appellant’s acts on March 3,

2012.    It also argued that, to the extent that Appellant wanted to introduce

testimony about statements that one of the sons had made in counseling the

week before March 3, 2012, those statements were also too remote. The State

argued that for defense of a third person, “there has to be the immediate and

necessary intervention,” and “[o]ne week prior is not immediate.” The trial court

ruled that based on the evidence it had heard to that point, it was “not going to

allow [Appellant] to go into that.”


                                          3
      Defense counsel then argued that the testimony of Brandy’s mother that

Appellant “becomes irate and that is the reason that they didn’t want to engage

with him” left the jury “with a misunderstanding and incomplete impression about

[his] state of mind and the reason that he may become irate, which is that his

children have been abused while in her care.” Defense counsel argued that he

“should be able to clear that up by going into the reason [that Appellant] has

been irate in the past.” The trial court excluded the evidence.

      The trial court allowed Appellant to testify outside the presence of the jury

for purposes of making a bill and allowing the trial court to hear evidence to

reconsider its ruling:

      Q.     Now, you said that the conditions—or explain to the Court
             what it is that happened to the boys that gave you such
             concern.

      A.     The week prior to her showing up to pick up the boys, we were
             in counseling, and I had S.H. 1 on my arm because he wanted
             me in the counseling with him to go through everything. And
             throughout the—S.H. coming out—S.H. was explaining how
             A.G. would make him and his brother sleep with each other in
             front of him and—

      Q.     Was that new information?

      A.     That was new at that time.

      Q.     And how—in relation to March 3rd, when did that conversation
             happen?



      1
      Throughout the quoted passages in this opinion, the children’s names
have been replaced with initials.



                                          4
A.   I’m not sure if it was the Thursday before or the Thursday
     before. It was one of the Thursdays before. It was the first
     time I had seen her since the allegation. More allegations had
     come out.

Q.   And did S.H. say anything that gave you concerns about
     whether Brandy knew about the allegation?

A.   S.H. said that his brother had told his mom.

THE COURT:       I’m sorry. What?

A.   He had—S.H. said that his brother had told his mom, which
     stayed in line with what J.H. had said all along.

Q.   What do you mean what J.H.—what had J.H. said all along?

A.   Ever since the allegations were first made, J.H. has always
     said that “I told my mommy about what A.G. was doing and
     that she told me that her and Douglas would take care of it.”

           Which I don’t know if you know ADD kids, but to
     continually hold the same story for months and months on end
     is not—not a normal situation.

Q.   And so that’s what J.H. has maintained the entire time; is that
     right?

A.   Yes.

Q.   But in this counseling session was the first time S.H. had told
     you that his mother knew about it?

A.   Yes.

Q.   And so her picking the children up this next time was the first
     time she was going to take possession of the children after
     S.H. had corroborated what you had said?

A.   Yes, sir.

Q.   Did you also have any concerns about—and, of course, when
     we’re talking about that, we’re talking about the abuse that
     A.G. perpetrated; is that right?

A.   Yes, sir.


                                5
Q.   Did you have any concerns about whether Douglas
     abused your boys?

A.   Yes, sir.

Q.   Explain to the Court your concerns about that.

A.   The end of July, right before Brandy went on—right
     before her summer was over, I was picking up the boys
     every Thursday and spending Thursday with them, and
     on the way home—because throughout the whole
     relationship of Brandy and Douglas, I always got weird
     stories. So I always checked with my boys to make sure
     there wasn’t anything strange going on.

          And S.H. said that he was being choked by
     Douglas.   J.H. corroborated and said, yeah, that’s
     happening.

           And I kind of got really upset and I held off. We
     drove a little bit longer, and then I talked to them again,
     and they were like, yeah. And then I was upset. I called
     their mother to talk to her about it, and she denied it like
     everything else.

           Then the next morning, after everything was a little
     bit calmer, I was calmer, I started talking to S.H. S.H.
     told me—I was like: Show me exactly what choking is,
     because I didn’t want him to be confusing it with
     anything else.

           And the choking went from—he put his hand on my
     throat, and that’s when I knew what he was talking
     about.

Q.   S.H. put his hand on your throat?

A.   Yes.

Q.   Now, when you called Brandy about this, was she
     dismissive? You said she didn’t believe—

A.   Yeah, she said it didn’t happen.




                               6
Q.   And was that the same attitude she’s had about the
     abuse?

A.   Pretty much, yes.

Q.   And—kind of all of that experience you have had with
     Brandy, Douglas, and A.G., did that contribute to your
     motivation on March 3rd?

A.   I believe so, yes.

Q.   And did you have a conversation with Brandy on March
     3rd?

A.   Yes.

Q.   And when she came to pick up the boys, did you talk to
     her about anything?

A.   Yes.

Q.   What did you talk to her about, or what did you try to talk
     to her about?

A.   I tried to talk to her about what was going on with S.H.

Q.   What do you mean what was going on with S.H.?

A.   What he was coming—what he was coming out with in
     counseling, about having to be forced to have sex with his
     brother.

Q.   So you tried to tell her what he said in counseling whenever
     she came to pick them up?

A.   Yes.

Q.   And how did she respond to that?

A.   Just dismissed it.

Q.   And did you just tell her once, and she said, I don’t want to talk
     about it, or did you try to talk to her?

A.   I kept trying to talk to her. And then that’s when she went and
     said—asked me for the boys, and I said: No, you’re not


                                  7
       getting the boys. And that’s when she called the police the
       first time.

Q.     And then did you go get the boys at that point?

A.     I went to the door and hollered at them to come out.

Q.     After the boys were in the car, did you continue to try to talk to
       Brandy and her mother, Wendy?

A.     Yeah. I started pleading with them, and I went over the whole
       J.H. knows, S.H. knows, all the ordeal with how it all turned
       out, how this wasn’t a one-time deal, that S.H. had said it
       happened in the middle of the day while you were watching
       TV, how can you do this, how can you continue on this path.

Q.     And Wendy, that was there, was she responsive to what you
       were telling?

A.     No. She just totally ignored it like it wasn’t anything.

Q.     But she was the person that was supposed to be supervising
       the visits?

A.     Yes.

Q.     And so did that contribute to your belief that they were going
       to put your boys in a dangerous situation?

A.     Yes.

Q.     Do you believe that your children being in their mother’s care
       was a danger to them?

A.     Yes.

....

Q.     And I think you kind of said this in the course of one of
       the answers, but I want to be clear.

             Was—the abuse that the boys reported to you,
       was it one time, or was it ongoing?

A.     That I heard about the abuse?



                                     8
      Q.    Yes, what the boys reported to you.

      A.    It was a slow process through counseling. And I never
            talked to them outside of the counseling, because that’s
            what our court order was, but the boys always wanted
            me to go in to counseling with them.

      Q.    What I’m asking is, as far as you know, did the abuse
            occur—the sexual abuse occur one time, or did it occur
            multiple times?

      A.    It occurred multiple times.

      Q.    And all of those times during—while they were in
            Brandy’s care?

      A.    Yes.

      Q.    And your actions on March 3rd were to defend your boys
            from what you perceived as an imminent threat to the
            boys?

      A.    Yes.

      In his testimony outside the jury’s presence, Appellant stated that when

Brandy came to pick up the children on March 3, he believed that she was going

to violate the family court’s order. He stated that in counseling the week before,

S.H. said that J.H. had told Brandy about the sexual abuse during the time period

it was happening, corroborating statements that J.H. had previously made.

Appellant said that the counseling session was the first time that S.H. had said

that his mother had known about the abuse, and March 3 was the first time that

Appellant had seen her since that counseling session. Appellant stated that J.H.

also corroborated his brother’s statements that Douglas had choked them. When

Appellant called Brandy to ask her about the boys’ allegations, she denied them.




                                        9
Appellant stated that on March 3, he tried to talk to Brandy about S.H.’s

statements, but she refused. Neither Brandy nor her mother would talk to him

about it, and he believed that his children would be in danger while in Brandy’s

care.

        At the conclusion of Appellant’s testimony outside the jury’s presence,

Appellant’s counsel argued that the evidence that

          • the “abuse was ongoing,”

          • Appellant learned from S.H. for the first time the week before March
            3 that Brandy knew about the abuse,

          • Brandy admitted that she lied to the family court, and

          • she and her mother refused to talk to Appellant about S.H.’s
            statements

all “go[] to the reasonableness of [Appellant] and the actions that he took to keep

her from taking th[e] children away.”

        The State argued that the information had been learned in counseling the

week before and that “if it was a week prior, . . . there’s no immediacy there.”

The trial court declined to change its ruling that the evidence did not raise the

issue of defense of a third party.

        The defense also argued that the evidence was admissible to show

Appellant’s then existing state of mind:

              And the statement of my client’s character for being someone
        that becomes irate leaves the jury with a misunderstanding and
        incomplete impression about my client’s state of mind and the
        reason that he may become irate, which is that his children have
        been abused while in her care.


                                           10
            And I believe that Ms. Kennedy’s statement elicited by the
      Government’s direct examination has left the jurors with a
      misunderstanding, and I should be able to clear that up by going into
      the reason he has been irate in the past.

      After further discussion, defense counsel re-urged his request to present

the evidence before the jury:

              Also, I would reurge my bill with regard to [Appellant’s]
      testimony and the above aforementioned that . . . limiting his right to
      elicit complete testimony before the jurors violates his due process
      and due course of law rights under the Texas Constitution, Article 1,
      Section 19; Texas Code of Criminal Procedure 1.04; and U.S.
      Constitution, Fifth Amendment, Fourteenth Amendment.

      The trial court denied this request to show Appellant’s then-existing state

of mind and to correct any misleading characterization of Appellant’s state of

mind. The trial court had also refused to allow Appellant to disclose the reason

Brandy’s access to the children was limited to supervised visitation.

      Appellant did not testify before the jury.

      The prosecutor argued in the State’s closing argument, “What excuse?

Did you hear any? Of course not, because there is no excuse.”

Analysis

      Both of Appellant’s issues complain of the exclusion of evidence.         We

review a trial court’s decision to exclude evidence for an abuse of discretion. 2 A




      2
       Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).



                                         11
trial court does not abuse its discretion as long as the decision to exclude the

evidence is within the zone of reasonable disagreement. 3

          The abuse of discretion standard, however, is viewed in light of and

subject to constitutional protections. The Supreme Court of the United States

reminds us that while states “have broad latitude under the Constitution to

establish rules excluding evidence from criminal trial,” “[t]his latitude . . . has

limits.       . . . [T]he Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense.” 4 Further, “an essential component

of procedural fairness is an opportunity to be heard. That opportunity would be

an empty one if the State were permitted to exclude competent, reliable

evidence . . . when such evidence is central to the defendant’s claim of

innocence.” 5       Thus, a trial judge whose evidentiary ruling undermines or

disregards a constitutional protection abuses his discretion; such a ruling cannot

be within the zone of reasonable disagreement. 6

          3
       Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op.
on reh’g).
          4
       Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731
(2006) (citations and internal quotation marks omitted).
          5
        Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146–47 (1986)
(citations and internal quotation marks omitted).
          6
       See Holmes, 547 U.S. at 324, 126 S. Ct. at 1731; Crane, 476 U.S. at
689–91, 106 S. Ct. at 2146–47; State v. Ballard, 987 S.W.2d 889, 893 (Tex.
Crim. App. 1999) (“Misapplication of the law to the facts of a particular case is a
per se abuse of discretion.”).



                                          12
      Defense of a Third Party

      In his first issue, Appellant contends that the trial court reversibly erred by

refusing to allow him to introduce evidence of why he felt his attack on Brandy

was justified as an act in defense of a third party. Appellant correctly argues that

the elements of that defense are that (1) under the circumstances as the actor

reasonably believed them to be, (2) the actor would be justified in using force

under section 9.31 of the penal code to protect himself, and (3) the actor

reasonably believes that his intervention is immediately necessary to protect the

third person. 7 Defense of a third person is a confession and avoidance defense. 8

The defendant must admit the elements of the offense and then seek to justify

his actions. 9   The defendant’s testimony alone may be sufficient to raise a

defensive theory requiring an instruction in the charge. 10 The defendant must

admit to the conduct—act and culpable mental state—of the charged offense to

be entitled to the instruction. 11   The self-defense and defense-of-third-person



      7
       Tex. Penal Code Ann. § 9.33 (West 2011); see id. § 9.31.
      8
       Campos v State, No. 13-11-00705-CR, 2014 WL 895515, at *9 (Tex.
App.—Corpus Christi Mar. 6, 2014, pet. ref’d) (mem. op., not designated for
publication) (citing Cornet v. State, 417 S.W.3d 446, 451–52 (Tex. Crim. App.
2013), and Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007), cert.
denied, 553 U.S. 1059 (2008)).
      9
       Id.
      10
          Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997).



                                         13
statutes are not limited to particular crimes; they simply provide that a person’s

use of force or deadly force is justified if certain circumstances are met. 12

      The Texas Court of Criminal Appeals instructs us that “the focus of the

defense-of-third-persons defense is upon what the actor reasonably believes

concerning the situation of the third person.” 13        If a defendant reasonably

believed that the person he sought to protect was legitimately defending himself,

then the defendant would be entitled to the presumption that his belief that the

force was immediately necessary was reasonable, 14 even if his belief was

actually incorrect. 15   Thus, if the evidence is admitted, the defense must be

submitted to the jury. The trial court does not decide that the defense will not be

successful when determining whether to admit the evidence of the defense. It is

the jury alone who determines whether a defendant has successfully proved his

defense.

      Here, Appellant presented his theory of defense of a third party in voir dire

and admitted to the elements of the offense of assault of a family member


      11
       Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010) (“The
confession and avoidance doctrine applies to the necessity defense.”).
      12
        Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011).
      13
        Id. at 8.
      14
        Tex. Penal Code Ann. § 9.31.
      15
        Morales, 357 S.W.3d at 8.



                                          14
through his opening statement but was not allowed to present his justification

defense. At that point, he was stuck in an impossible situation. He upheld the

first portion of his burden by admitting to the elements of the crime alleged but

was precluded from offering the evidence to show justification. Instead, the jury

heard the evidence that Appellant, after assaulting the complainant for no

apparent reason, got into his car and left the scene, leaving the children with her.

      Appellant was entitled to present his defense.

      In Fielder v. State, Fielder attempted to present her battered-spouse

defense. 16 Just as defense of a third party is central to Appellant’s defense here,

the battered-spouse defense was the essence of Fielder’s defense. 17 The Texas

Court of Criminal Appeals reversed Fielder’s conviction, holding that the trial

court reversibly erred by refusing to allow her to offer the evidence. 18

      In the case before us, the State argued that the evidence of the

relationship between Appellant and his former wife was too remote to support a

finding of sudden passion or the immediate need to defend their sons. The State

here argued that because Appellant had learned of the sexual abuse the

previous year and because he had learned of additional abuse the week before,

there was no immediacy. He could only have acted in defense of his children a

      16
        756 S.W.2d 309, 317 (Tex. Crim. App. 1988).
      17
        Id. at 319.
      18
        Id. at 320–21.



                                         15
week before when the outcry occurred.          The State’s argument, however, is

flawed. An immediate response of sudden passion arising from adequate cause

is the test of what used to be voluntary manslaughter and is now a punishment

issue in a murder prosecution. 19   Sudden passion is not an element of self-

defense or defense of another. The need for immediate action in defense of

another does not rest on sudden passion but, rather, on the need to act

immediately to protect the other person.

      Appellant attempted to talk to Brandy about the children’s safety. Brandy

and her mother refused to discuss his concerns.        The danger that Appellant

perceived was not the danger of injury from the counseling that the children had

participated in the previous week. The danger that Appellant perceived lay in the

children’s leaving his home with Brandy. That perceived danger was immediate.

      Appellant attempted to argue that the danger lay in allowing the children to

go with his former wife because of the history of sexual and physical abuse.

Appellant made a proper showing of the evidence that he sought to present to

the jury. It was both admissible and probative. We therefore hold that the trial

court abused its discretion by excluding the evidence and erred by refusing to

allow Appellant to present his defense.




      19
       Wooten v. State, 400 S.W.3d 601, 604–05 (Tex. Crim. App. 2013).



                                          16
      Denial of Right of Confrontation

      Appellant contends that the State was allowed to present him as an

irrationally angry man. As part of his attempt to present his defense of a third

person, Appellant tried to explain to the jury the relationship among the parties,

his concerns for his children, his state of mind, and the reasons for his actions.

He was not permitted to do so. In his second issue, Appellant argues that the

trial court improperly limited his right to cross-examine and confront the

witnesses against him by not allowing him to question Brandy and her mother

about the new allegations that had emerged during the children’s counseling

concerning abuse during Brandy’s times of possession. We agree and hold that

the trial court so erred.

      Appellant correctly argues that denial of the right of confrontation and

cross-examination is an error of constitutional magnitude. 20 And the trial court’s

error here was exacerbated by the State’s jury argument. The Texas Court of

Criminal Appeals has recognized that occasionally

      erroneous exclusion of a defendant’s evidence of . . . state of mind
      at the time of the [conduct] amount[s] to constitutional error because
      the evidence was critical to [the] defense:

             [T]he trial court’s exclusion of [the defendant’s self-
             defense evidence] was not mere evidentiary error. It
             was of constitutional dimension. The ruling went to the
             heart of the defense. Petitioner’s sole defense was that
             she killed her husband in an honest belief that she

      20
        See Davis v. Alaska, 415 U.S. 308, 320, 94 S. Ct. 1105, 1112 (1974).



                                        17
             needed to do so to save her life. The success of the
             defense depended almost entirely on the jury’s believing
             petitioner’s testimony about her state of mind at the time
             of the shooting. . . . The trial court precluded petitioner
             from testifying fully about her state of mind and from
             presenting evidence that would have corroborated her
             testimony. Because this evidence was critical to her
             ability to defend against the charge, we hold that the
             exclusion of this evidence violated petitioner’s clearly
             established constitutional right to due process of law—
             the right to present a valid defense as established by
             the Supreme Court in Chambers [v. Mississippi] and
             Washington [v. Texas]. 21

       Similarly, Appellant in the case now before this court had received

information that, contrary to prior representations, Brandy knew about the sexual

and physical abuse but neither stopped it nor told the truth when asked about it

by the family court judge. The trial court abused its discretion by excluding the

evidence and in doing so, erred by denying Appellant the right to confront and

cross-examine Brandy and her mother to further show his state of mind and

further develop his justification defense.

Harm

       Just as the trial court’s errors of excluding Appellant’s testimony justifying

his actions and preventing him from cross-examining Brandy and her mother

about the bases for his actions and his state of mind overlap, so does the harm

caused by both errors. The right to present a complete defense is rooted in the

constitutional right to due process under both the Fifth and Fourteenth

       21
       Potier v. State, 68 S.W.3d 657, 663–64 (Tex. Crim. App. 2002) (quoting
DePetris v. Kuykendall, 239 F.3d 1057, 1062–63 (9th Cir. 2001)).


                                         18
Amendments to the United States Constitution; the right to due course of law

under article one, section nineteen of the Texas Constitution; the Sixth

Amendment right to confront and cross-examine witnesses; and the same right

under article one, section ten of the Texas Constitution. 22 The Texas Court of

Criminal Appeals has reminded us of the importance of a defendant’s being

allowed to present a complete defense, stating,

             In Holmes v. South Carolina, the Supreme Court stated,
      “Whether rooted directly in the Due Process Clause of the
      Fourteenth Amendment or in the Compulsory Process or
      Confrontation Clauses of the Sixth Amendment, the Constitution
      guarantees criminal defendants ‘a meaningful opportunity to present
      a complete defense.’” In the case before us, the trial court’s ruling
      disallowing cross-examination of the State’s expert witness violated
      the defendant’s fundamental rights to a fair trial. The Supreme Court
      said in Pointer v. Texas:

            There are few subjects, perhaps, upon which this Court
            and other courts have been more nearly unanimous
            than in their expressions of belief that the right of
            confrontation and cross-examination is an essential and
            fundamental requirement for the kind of fair trial which is
            this country’s constitutional goal. Indeed, we have
            expressly declared that to deprive an accused of the
            right to cross-examine the witnesses against him is a
            denial of the Fourteenth Amendment’s guarantee of due
            process of law.

             Because the denial of the right to present a defense is a
      violation of due process and results in constitutional error, we now
      turn to the harm analysis. 23

      22
       U.S. Const. amends. V, VI, XIV; Tex. Const. art. I, §§ 10, 19.
      23
         Holmes v. State, 323 S.W.3d 163, 173 (Tex. Crim. App. 2009) (op. on
reh’g) (citations omitted).



                                        19
      The deprivation of the meaningful right to present a defense is

constitutional error. 24 We therefore apply rule 44.2(a). 25 The question is whether

both errors were harmless beyond a reasonable doubt. 26              In applying the

“harmless error” test, our primary question is whether there is a “reasonable

possibility” that the error might have contributed to the conviction. 27

      Our harmless error analysis should not focus on the propriety of the

outcome of the trial; instead, we should calculate as much as possible the

probable impact on the jury in light of the existence of other evidence. 28 We

“should take into account any and every circumstance apparent in the record that

logically informs an appellate determination whether ‘beyond a reasonable doubt

(that particular) error did not contribute to the conviction or punishment,’” and if

applicable, we may consider the nature of the error, the extent that it was

emphasized by the State, its probable collateral implications, and the weight a




      24
        Holmes, 547 U.S. at 324, 126 S. Ct. at 1731; Washington v. Texas, 388
U.S. 14, 19, 87 S. Ct. 1920, 1923 (1967); Holmes, 323 S.W.3d at 173–74.
      25
        Tex. R. App. P. 44.2(a).
      26
        See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).
      27
         Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on
reh’g), cert. denied, 526 U.S. 1070 (1999).
      28
        Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert.
denied, 532 U.S. 944 (2001).



                                          20
juror would probably place on the error. 29 This requires us to evaluate the entire

record in a neutral, impartial, and even-handed manner, not “in the light most

favorable to the prosecution.” 30

      In the case now before this court, Appellant attempted to justify his conduct

to the jury. He tried to explain to the jury the source of his anger and his concern

for his children. His claim that he was acting to protect his children was his

defense. Moreover, the State made Appellant’s state of mind an issue in the

case, creating the impression that his anger was irrational and baseless. The

jury heard the evidence that Appellant, after assaulting the complainant, got into

his car and left the scene, leaving the children with her.

      Justifying his conduct based on the defense of a third party was

Appellant’s entire defense.         At every turn, he was barred from presenting

evidence of his defense to the jury.

      After carefully reviewing the record and performing the required harm

analysis under rule 44.2(a), we cannot say that the trial court’s errors did not




      29
        Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011) (quoting
Tex. R. App. P. 44.2(a)).
      30
         Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed
with in part on other grounds by Snowden, 353 S.W.3d at 821–22 (citation and
internal quotation marks omitted).



                                           21
contribute to Appellant’s conviction or punishment. 31     We therefore sustain

Appellant’s two issues.

Conclusion

      Having sustained Appellant’s two issues, we reverse the trial court’s

judgment and remand this case to the trial court.



                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

GARDNER, J., filed a concurring opinion.

PUBLISH

DELIVERED: December 18, 2014




      31
       See Tex. R. App. P. 44.2(a).



                                       22
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00178-CR


GREGORY SHAWN HENLEY                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

      FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
                   TRIAL COURT NO. 1277030

                                      ----------

                          CONCURRING OPINION

                                      ----------

      I cannot agree that the standard of review of the trial court’s refusal to

admit the evidence supporting Appellant’s justification defense is “abuse of

discretion.” I believe that whether the evidence was sufficient to raise an issue

as to each element of the defense was a question of law. Viewed under the

proper standard, I nevertheless agree with the majority that the trial court erred in

excluding the evidence and in precluding Appellant from presenting his defense
as well as violating Appellant’s right to cross examine and confront the witnesses

against him, requiring that we reverse the trial court’s judgment and remand this

cause to the trial court.

      In refusing to admit the evidence supporting Appellant’s defense of

justification for his actions, the trial court concluded, as argued by the State, that

there was “no evidence” of any new incident of physical choking of one of the

children by Douglas, Brandy’s fiancé, or sexual abuse by his ex-stepson, and

thus, no evidence of an immediate necessity for Appellant to intervene to protect

the children. The trial court opined that the alleged choking and sexual abuse

had occurred over a year before, and that those events as well as the counseling

session the previous week—in which Brandy’s knowledge of the abuse as well

as more graphic details of it were revealed to Appellant by their younger son for

the first time—were all too remote in time to create any reasonable belief of

immediate danger to the children to justify Appellant’s conduct on their behalf.

      This was not Appellant’s argument. The immediate danger, as testified by

Appellant in his bill of exceptions, was not the past events. They were, however,

relevant, and the evidence of them should have been admitted as probative of

Appellant’s fear of an apparent, immediate danger from Appellant’s standpoint at

the time of the offense. When considering whether a defendant acted in self-

defense (or in defense of a third party), the reasonableness of the defendant’s

actions must be viewed solely from the defendant’s viewpoint. Bennett v. State,

726 S.W.2d 32, 37–38 (Tex. Crim. App. 1986) (holding reasonableness of


                                          2
defendant’s fear must be judged from the standpoint of the accused at the

moment of the attack); Johnson v. State, 271 S.W.3d 359, 365–66 (Tex. App.—

Beaumont 2008, pet. ref’d) (holding evidence from friends of defendant who had

witnessed past acts of violence and verbal abuse directed toward her by

deceased was evidence establishing defendant’s “fear” of apparent danger at the

time of stabbing).

       As the court of criminal appeals pointed out in Fielder v. State, evidence of

past violent acts against the defendant is an established method of proof in self-

defense cases, because the law recognizes the fact that future conduct may be

reasonably inferred from past conduct. 756 S.W.2d 309, 319–20 (Tex. Crim.

App. 1988) (citing Horbach v. State, 43 Tex. 242, 251–52 (1875)); cf. Thompson

v. State, 659 S.W.2d 649, 653 (Tex. Crim. App. 1983) (holding when self-defense

is raised, “the deceased’s reputation for violence and commission of prior specific

acts of violence [against third parties] which are known to the defendant are

probative of whether the defendant reasonably believed the force he used was

immediately necessary to protect [them]”).

       Moreover, a person has the right to defend himself from “apparent danger”

to the same extent as he would if the danger were real. Johnson, 271 S.W.3d at

365.    The same evidence is probative of whether a defendant’s belief is

reasonable that force is immediately necessary in defense of a third party such

as Appellant’s children. Tex. Penal Code Ann. § 9.33 (West 2011). The danger

Appellant testified that he believed rendered intervention immediately necessary


                                         3
was that, unless he stopped Brandy, the children would again be exposed to

harm by Brandy’s fiancé and his ex-stepson, despite the divorce court’s order

prohibiting contact with them and despite the court-ordered supervision of

Brandy’s visitation with the children, because Brandy had allowed the boys to be

around her fiancé and his ex-stepson in violation of the divorce court’s order, had

failed to supervise them when they were, and had continued her relationship with

him even after the abuse became known.            The situation—as well as the

danger—was ongoing. The boys were sitting in Brandy’s vehicle, and she was

refusing to listen to Appellant’s concerns and was about to drive away with them.

The issue is whether Appellant’s belief was reasonable at that time that his

intervention was immediately necessary to attempt to protect the children from

exposure to harm from Brandy’s fiancé or his ex-stepson.

      As the majority opinion points out, Appellant testified in his bill that, when

Brandy came to pick up the children, he believed she was going to violate the

family court’s order not to allow contact of the children with Douglas or his ex-

stepson. Brandy admitted she had previously violated the family court’s order

and had lied to that court that she was no longer living with Douglas when she

was. Moreover, Brandy admitted she had planned to marry Douglas that very

weekend and did so. According to Appellant’s testimony, Brandy had denied the

boys’ allegations of choking by Douglas and dismissed the evidence of sexual

abuse.    The younger son had, at the most recent counseling session,

corroborated his brother’s statements for the first time that he had told Brandy of


                                         4
the choking and sexual abuse but that she had sat in another room watching

television while the abuse occurred.    It is undisputed that both she and her

mother refused to discuss Appellant’s fear and concern about the boys when

they came to pick them up.

      Brandy, herself, succinctly described Appellant’s state of mind at the time

of the offense, acknowledging (in her testimony on Appellant’s bill of exceptions)

that Appellant’s “assumption” was that the boys were not safe going with her.

She disagreed with Appellant’s assumption the boys were in danger and

maintained the children were safe with her, but it matters not whether the boys

were, in fact, in danger from Douglas or his ex-stepson when Brandy and her

mother drove off with them. According to Appellant, he believed they were, and

he had a right to defend the children from apparent danger as fully and to the

same extent as he would had the danger been real, provided he acted upon a

reasonable apprehension of danger as it appeared to him from his standpoint at

the time. See Johnson, 271 S.W.3d at 365–66.

      The court of criminal appeals has made clear that a defendant has the

burden of production of some evidence on each element of a justification

defense, holding that a defense is raised “if there is some evidence, from any

source, on each element of the defense that, if believed by the jury, would

support a rational inference that that element is true.” Shaw v. State, 243 S.W.3d

647, 657–58 (Tex. Crim. App. 2007) (emphasis added), cert. denied, 553 U.S.

1059 (2008).   The trial court does not weigh the evidence or determine the


                                        5
credibility of the witnesses, including the credibility of the defendant, but must

assume the credibility of evidence supporting the defense. Shaw v. State, 181

S.W.3d 450, 452 (Tex. App.—Waco 2005), aff’d, 243 S.W.3d at 660.

      On appeal, we review the issue of whether a defense of justification is

raised by the evidence de novo as a question of law. Shaw, 243 S.W.3d at 658;

Shaw, 181 S.W.3d at 452. Neither at this stage nor at the stage of submission to

the jury do we apply the usual rule of appellate deference to the trial court’s

ruling. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006); Johnson,

271 S.W.3d at 367. On de novo review, we afford no deference to the trial

court’s determination and consider the matter as if we were the court of first

instance. See Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012)

(Alcala, J., concurring). As does the trial court, we view the evidence relied on by

the defendant to raise the defense in the light most favorable to the defendant.

See Bufkin, 207 S.W.3d at 782; Johnson, 271 S.W.3d at 366, 367.

      It appears that the trial court here, despite its care in listening to the

arguments of Appellant and the testimony offered by Appellant’s bill of

exceptions (including questioning by the court), did not credit Appellant’s

testimony and did not view the evidence in the light most favorable to Appellant

but, instead, weighed the credibility of Appellant’s proffered testimony, itself, and

concluded that it was simply not credible that there was any immediate danger to

the children and no reasonable basis for Appellant to believe that there was.




                                         6
      In essence, by excluding Appellant’s evidence, the trial court granted a

directed verdict against Appellant on his justification defense. If each element of

a defense is raised by some evidence, the defendant is entitled to an instruction

to the jury on that defense, regardless of whether the evidence supporting the

defense is strong, weak, feeble, impeached or contradicted, and even if the trial

court is of the opinion that the testimony raising the defense is not credible.

Shaw, 243 S.W.3d at 657–58 (citing Tex. Penal Code Ann. § 2.03 (West 2011));

see Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007).              The

defendant’s burden of production includes presenting some evidence that he

“reasonably” believed his conduct was immediately necessary to avoid unlawful

force to himself or third parties.   Shaw, 243 S.W.3d at 657.       The evidence

detailed in Appellant’s bill regarding the prior conduct of Brandy, her fiancé, and

his ex-stepson was some evidence to support the reasonableness of Appellant’s

belief in that regard, and whether Appellant’s belief was “reasonable” was for the

jury and not the trial court to decide. See Juarez v. State, 308 S.W.3d 398, 405

(Tex. Crim. App. 2010) (both admitting and denying requisite mental state

entitled defendant to instruction on the necessity defense; was jury’s province to

resolve factual issue).

      Viewing the testimony excluded by the trial court in the light most favorable

to Appellant, and assuming the credibility of the evidence supporting his defense,

I would conclude that Appellant proferred some evidence, more than a scintilla,

raising an issue of fact on each element of the defense of justification, and that


                                        7
the trial court thus erred in excluding it. Appellant admitted the elements of the

offense and, as pointed out by the majority, without his evidence of justification,

there was no dispute left for the jury to resolve. The State exacerbated the trial

court’s error by emphasizing in its closing argument that Appellant had “no

excuse,” which, of course, was only true after the State had convinced the trial

court to exclude Appellant’s evidence of justification. I agree that Appellant was

entitled to have his defense heard and submitted to the jury.



                                                         /s/ Anne Gardner
                                                         ANNE GARDNER
                                                         JUSTICE

PUBLISH

DELIVERED: December 18, 2014




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