                         NUMBER 13-10-00164-CR

                           COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


REX A. JOHNSON,                                                      Appellant,

                                       v.

THE STATE OF TEXAS,                                                   Appellee.


             On appeal from the County Court at Law No. 2
                     of Jefferson County, Texas.


                         MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
           Memorandum Opinion by Chief Justice Valdez

     Appellant, Rex A. Johnson, was charged by information with assault, a class A

misdemeanor. See TEX. PENAL CODE ANN. § 22.01(a)-(b) (West Supp. 2010). A jury

convicted appellant of the charged offense and sentenced him to thirty days‘
confinement, which was probated for one year, with a $250 fine. By five issues, which

we reclassify as two, appellant argues that: (1) the evidence is legally and factually

insufficient to support his conviction; and (2) the trial court committed reversible error by

failing to properly charge the jury on self-defense, defense of property, and defense of

third-person property. We affirm.

                                              I.       BACKGROUND1

A. The State’s Evidence

        The State called two witnesses in its case-in-chief—John Louis Stockwell II, the

complainant, and Melanie Dawn Epperly, a police officer with the Beaumont Police

Department.      Stockwell testified that he works for Safety Adjustors, a repossession

agent for several credit unions and ―major finance companies.‖                    On April 8, 2008,

Stockwell was instructed to repossess a 2003 Chevrolet Impala from Rex Johnson Jr.

because Rex Jr. had filed for bankruptcy and the automatic stay apparently had been

lifted. Rex Jr. lived in a property next door to appellant, a property also owned by

appellant.    Stockwell pulled into the driveway of appellant‘s property and saw the

Chevrolet Impala parked in appellant‘s backyard. Stockwell testified that he exited the

tow truck he was driving and proceeded toward the vehicle.

        Shortly after arriving at the property, Stockwell encountered Jason Johnson,

appellant‘s brother, who was building a storage shed in appellant‘s backyard. Jason did

not know anything about the vehicle and went inside the house to get appellant.

Stockwell recalled that appellant came outside ―and immediately [appellant] starts

hollering and screaming and cursing and telling me to get off his property.‖ Stockwell


        1
          This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV‘T CODE ANN. § 73.001 (West 2005).

                                                   2
did not believe that he was going to be successful in repossessing the vehicle at this

time, so he turned around and began walking back to his tow truck.

        As he was walking toward his tow truck, Stockwell received a call on his cell

phone.      Stockwell answered the call, but before he could say anything, appellant

allegedly hit Stockwell in the back of his head, which caused Stockwell to drop his cell

phone. Stockwell testified that he was also hit in the face, which caused his nose to

bleed. Stockwell recounted that Jason was also participating in the fight at this time.

Stockwell admitted to fighting back to defend himself, but he denied being the initial

aggressor. Eventually, Stockwell was able to make it back to his tow truck. As he tried

to get into the truck, either appellant or Jason grabbed Stockwell‘s arm and tried to pull

him out of the truck.2          Stockwell located a bottle of pepper spray in a storage

compartment in the door of the tow truck and sprayed both appellant and Jason. After

spraying the two, Stockwell got into the tow truck and left the scene.

        Because his cell phone was ―somewhere in [appellant‘s] yard,‖ Stockwell went

back to his employer‘s office to call the police. Later, Stockwell provided police with

statements about the incident at the police station. Police took pictures of Stockwell

and his clothing for documentation purposes.                  These pictures were admitted into

evidence and showed the clothing that Stockwell was wearing on the day of the

incident. His shirt was torn and had blood on it, and his shorts also had blood on them.




        2
          In response to questioning by the State about whether he ever hit appellant with the door of his
tow truck, Stockwell stated: ―Not to my knowledge. I was trying to get in my truck. If I did, it was not on
purpose; but I don‘t think it ever happened that way. He was holding on to my arm the whole time.‖

                                                    3
Police also photographed Stockwell‘s face to document injuries Stockwell sustained to

his forehead and nose.3

       Later, Stockwell returned to appellant‘s property with the police to retrieve

Stockwell‘s cell phone. When they arrived, appellant started ―hollering and screaming‖

profanities at Stockwell, so Stockwell stayed in the street while the police officer spoke

to appellant about the cell phone.            Stockwell‘s cell phone was never recovered.

Ultimately, Stockwell decided to press charges against appellant for the alleged assault.

       Officer Epperly testified that she and another police officer responded to a call

regarding an alleged assault at appellant‘s property. Police took statements from both

Stockwell and appellant but made no arrests at that time. Officer Epperly noted that

when appellant was questioned about Stockwell‘s allegations, appellant stated that he

had been assaulted. Officer Epperly recalled seeing injuries on Stockwell. In particular,

she saw ―a pretty good size[d] lump on his [Stockwell‘s] forehead, some injuries on his

face, some minor scratches.‖ Officer Epperly testified that appellant told her that he had

been sprayed and that appellant complained about neck and back pain. However,

―[appellant] refused EMS on the scene‖ and stated that he would seek medical

treatment at a later date.        On cross-examination, Officer Epperly admitted that no

arrests were made because there were no witnesses to the incident and that no one

corroborated Stockwell‘s allegations.

B. Appellant’s Evidence

       After the State rested but before he presented his case-in-chief, appellant moved

for a directed verdict, which was denied.             Appellant and Jason then testified on

       3
         The pictures taken by police did not depict any blood on Stockwell‘s face. However, Stockwell
acknowledged that he had taken a shower before he went to the police station to give his statements
about the incident.

                                                  4
appellant‘s behalf. Appellant denied ever striking Stockwell and, instead, asserted that

Stockwell had assaulted him.                 Appellant recalled that Stockwell trespassed on his

property and that he told Stockwell, in a civil manner, to leave. Appellant alleged that

he repeatedly asked Stockwell for ―court papers‖ as proof that the vehicle was subject to

repossession, yet Stockwell never showed any documentation to appellant. Appellant

then testified that the incident did not get heated until Stockwell hit appellant by opening

the door to the tow truck. Appellant remembered Stockwell spraying pepper spray in his

eyes. Appellant continued to fight, though he could not open his eyes. Appellant noted

that Stockwell was on top of him when Jason entered into the fray. Jason stated that

Stockwell‘s shirt was torn when he tried to pull Stockwell off of appellant. 4 After Jason

allegedly separated Stockwell and appellant, Stockwell got into the tow truck and left.

Appellant stated that he received several bruises as a result of the fight and admitted

that he had gotten his ―butt kicked.‖                  Appellant then tried to file charges against

Stockwell. However, after reviewing the evidence, the Beaumont Police Department did

not elect to press charges against Stockwell, an event that appellant described as

unjust.

          The jury subsequently convicted appellant of class A misdemeanor assault. See

id. Appellant was sentenced to thirty days‘ confinement in a Jefferson County jail with a

$250.00 fine. The trial court probated appellant‘s incarceration for a period of one year.



          4
              Jason described his involvement in the fight as follows:

          At the truck. When [Stockwell] slammed the truck door in Rex[‗]s knees, I‘m still up on
          the house. They—he‘s yelling at Rex. Rex asking [sic] him to leave. He slammed his
          truck door in [sic] into Rex; and all I—I‘m up there; and I look and I see Rex falling. Then
          I see the pepper spray being sprayed. I‘m up on the roof. I come down the ladder. He‘s
          on top of Rex. I pulled him off of Rex. He jumped in the truck, and he left. That‘s how
          his shirt got torn.

                                                         5
Appellant later filed a motion for new trial, which was overruled by operation of law. See

TEX. R. APP. P. 21.8(c). This appeal followed.

                               I.        EVIDENTIARY SUFFICIENCY

       By his first issue, Johnson contends that the evidence supporting his conviction

is legally and factually insufficient.    Specifically, Johnson argues that the evidence

established that he acted in self-defense. We disagree.

A. Standard of Review

       The Texas Court of Criminal Appeals has held that there is ―no meaningful

distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis

factual-sufficiency standard‖ and that the Jackson standard ―is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893, 902-03, 912 (Tex. Crim. App.

2010) (plurality op.). Accordingly, we review claims of evidentiary sufficiency under ―a

rigorous and proper application of the Jackson standard of review.‖ Id. at 906-07, 912.

       Under the Jackson standard, ―the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.‖ Jackson v.

Virginia, 443 U.S. 307, 319 (1979); see Brooks, 323 S.W.3d at 898-99 (characterizing

the Jackson standard as: ―Considering all of the evidence in the light most favorable to

the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.‖).

Under the Jackson standard, the reviewing court gives full deference to the jury‘s

responsibility ―‗to fairly resolve conflicts in the testimony, to weigh the evidence, and to



                                               6
draw reasonable inference from basic facts to ultimate facts.‘‖ Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 318-19).

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997). ―‗Such a charge [is] one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State‘s burden of

proof, or unnecessarily restrict the State‘s theories of liability, and adequately describes

the particular offense for which the defendant was tried.‘‖        Villarreal v. State, 286

S.W.3d 321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240). In order to

prove that appellant committed the offense of assault under section 22.01 of the penal

code, the State was required to prove that (1) appellant intentionally, knowingly, or

recklessly (2) caused bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1).

B. Discussion

       At the outset of our analysis of this issue, we note that the Brooks court held that

the legal sufficiency and factual sufficiency standards of review are ―indistinguishable‖;

thus, we need not conduct a separate factual sufficiency analysis of the evidence

supporting appellant‘s conviction. See 323 S.W.3d at 902. In rigorously applying the

Jackson standard of review to this case, we look at all of the evidence in the record in

the light most favorable to the prosecution. See 443 U.S. at 319; see also Brooks, 323

S.W.3d at 898-99.     Here, the facts pertaining to the incident were hotly contested.

Stockwell testified that he pulled into appellant‘s driveway to repossess a 2003

Chevrolet Impala.    According to Stockwell, appellant exited his home shortly after

Stockwell arrived and began yelling, screaming, and cursing at him. Stockwell noted



                                             7
that because of appellant‘s belligerence, he decided to not repossess the vehicle at that

time and turned back to his tow truck to leave the property. While he was walking back

to his tow truck, Stockwell‘s cell phone rang, and as he picked it up, Stockwell recalled

being punched by appellant. Stockwell and appellant then began to tussle, and as a

result of the fight, Stockwell suffered injuries to his forehead and his nose. In addition,

his clothing was ripped and was bloodied from the fight. Stockwell ended the fight by

spraying appellant with pepper spray. Stockwell left the premises shortly thereafter.

       On the other hand, appellant testified that Stockwell trespassed on his property

and that he spoke with Stockwell in a civil manner. Appellant stated that he requested

that Stockwell produce ―court papers‖ to prove that the repossession was valid, but

Stockwell allegedly refused to comply. Appellant noted that he followed Stockwell back

to his tow truck but that appellant was acting calmly. According to appellant and Jason,

once appellant and Stockwell approached the tow truck, Stockwell slammed the tow

truck door into appellant. Then, Stockwell sprayed appellant in the eyes with pepper

spray. Appellant testified that he defended himself but that he could not see everything

that was going on because of the pepper spray in his eyes. Appellant admitted that he

had gotten his ―butt kicked‖ and that he had suffered bruising as a result of the fight.

Appellant told Officer Epperly that Stockwell had assaulted him, and appellant

attempted to press charges against Stockwell when he learned that he was being

investigated for assaulting Stockwell. No charges were filed against Stockwell.

       Obviously, the jury was faced with conflicting testimony about what occurred

during the altercation. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979) (stating

that the jury is the exclusive judge of the facts proved and of the weight given to the



                                            8
testimony); see also Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)

(noting that ―[t]he jury is in the best position to judge the credibility of a witness because

it is present to hear the testimony, as opposed to an appellate court who relies on the

cold record‖ and that the jury may choose to believe or disbelieve all or any part of a

witness‘s testimony).    Essentially, the jury was charged with determining whether

Stockwell or appellant was the initial aggressor in this case.        The charge included

language on the law of self-defense, and the jury was instructed to acquit appellant if

they believed from the evidence adduced during trial showed that Stockwell was the

initial aggressor and that appellant was justified in using reasonable force. On appeal,

appellant contends that the evidence proves that Stockwell was the initial aggressor,

and thus, the jury should have acquitted appellant based upon the law of self-defense.

       ―[A] person is justified in using force against another when and to the degree [he]

reasonably believes the force is immediately necessary to protect [himself] against the

other‘s use or attempted use of unlawful force.‖ TEX. PENAL CODE ANN. § 9.31(a) (West

Supp. 2010). Section 9.31(a)(1)(A) provides that:

       The actor‘s belief that the force was immediately necessary . . . is
       presumed to be reasonable if the actor:

          (1) knew or has reason to believe that the person against whom the
              force was used:

              (A) unlawfully and with force entered, or was attempting to enter
                  unlawfully and with force, the actor‘s occupied habitation,
                  vehicle, or place of business or employment . . . .


Id. § 9.31(a)(1)(A). However, section 9.31 states that the use of force against another is

unjustified if, among other things, ―the actor abandons the encounter, or clearly




                                              9
communicates to the other his intent to do so reasonably believing he cannot safely

abandon the encounter . . . .‖ Id. § 9.31(b)(4)(A).

       The issue of self-defense is an issue of fact to be determined by the jury. See

Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). Moreover, the State

has the burden of persuasion in disproving the evidence of self-defense, rather than the

burden of production, which requires that the State affirmatively produce evidence

refuting the self-defense claim. See id. at 913. In other words, the State, in this case,

was merely required to prove its case for assault beyond a reasonable doubt. See id.

       In convicting appellant of assault, the jury clearly believed Stockwell‘s testimony

that appellant was the initial aggressor. Because the jury‘s verdict was premised on the

resolution of conflicting testimony, we must defer to its conclusion. See Jackson, 443

U.S. at 326; see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

(―When the record supports conflicting inferences, we presume that the fact[-]finder

resolved the conflicts in favor of the prosecution and therefore defer to that

determination.‖). Viewing the evidence in the light most favorable to the prosecution,

we conclude that the jury was rational in rejecting appellant‘s self-defense contention

and convicting him for the assault of Stockwell. See TEX. PENAL CODE ANN. §§ 9.31,

22.01; see also Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 898-99. As such, we

find that the evidence is sufficient to sustain appellant‘s conviction. See TEX. PENAL

CODE ANN. § 22.01; see also Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 898-99.

Accordingly, we overrule appellant‘s first issue.

                                  II.    THE JURY CHARGE




                                            10
       By his second issue, appellant asserts that the trial court committed reversible

error by failing to charge the jury on defense of property, defense of third-person

property, and the applicable presumptions of self-defense.         The State counters by

arguing that the jury was properly instructed on self-defense and any error associated

with the instruction was not preserved for appeal. The State further contends that

appellant‘s arguments pertaining to defense of property and defense of third-person

property must fail because no evidence was adduced at trial to support the inclusion of

jury instruction on those matters.

A. Applicable Law

       A charge on a defensive issue is required if the defendant presents affirmative

evidence that would constitute a defense to the crime charged and the defendant

properly requests a jury charge. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West

2007) (providing that a defendant must distinctly specify each ground of objection to the

charge); Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996) (holding that a

defendant preserves error if a request is specific enough to put the trial court on notice

of an omission or error in the charge; the requested charge need not be ―in perfect

form,‖ but only sufficient enough to call error to the trial court‘s attention); Brazelton v.

State, 947 S.W.2d 644, 646 (Tex. App.–Fort Worth 1997, no pet.); see also Lowe v.

State, No. 09-07-548-CR, 2008 Tex. App. LEXIS 3666, at *2 (Tex. App.–Beaumont May

21, 2008, pet. ref‘d) (mem. op., not designated for publication).        A defendant who

produces evidence raising each element of a requested defensive instruction is entitled

to the instruction regardless of the source and the strength of evidence. See Brazelton,

947 S.W.2d at 646; see also Lowe, 2008 Tex. App. LEXIS 3666, at *2. In determining



                                             11
whether evidence raises a defense, the credibility of the evidence is not at issue.

Brazelton, 947 S.W.2d at 646 (citing Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim.

App. 1993); Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991); Warren v.

State, 565 S.W.2d 931, 933-34 (Tex. Crim. App. 1978); Shafer v. State, 919 S.W.2d

885, 887 n.1 (Tex. App.–Fort Worth 1996, pet. ref‘d)). Unlike legal challenges to the

sufficiency of the evidence, we review the evidence offered in support of a defensive

issue in the light most favorable to the defense. Id. (citing Shafer, 919 S.W.2d at 887

n.1).

B. Discussion

        Here, the jury received an instruction regarding self-defense in the charge.

Specifically, the trial court noted:

                Upon the law of self-defense, you are instructed that a person is
        justifiable [sic] in using force against another when and to the degree they
        reasonably believe the force is immediately necessary to protect
        themselves against the other person‘s use or attempted use of unlawful
        force. A person is under no obligation to retreat to avoid the necessity of
        repelling or defending against attack or threatened attack.

                When a person is attacked with unlawful force, or they reasonably
        believe they are under attack with unlawful force, and there is created in
        the mind of such person a reasonable expectation or fear of some bodily
        injury, then the law excuses or justifies such person in resorting to force by
        any means at their command to the degree that they reasonably believe
        such force is immediately necessary, viewed from their standpoint at the
        time, to protect themselves from such attack or attempted attack.

                It is not necessary that there be an actual attack or attempted
        attack, as a person has a right to defend their person from apparent
        danger as fully and to the same extent as they would had the danger been
        real, provided that they acted upon a reasonable apprehension of danger,
        as it appeared to them from their standpoint at the time, and that they
        reasonably believed such force was immediately necessary to protect
        themselves against the other person‘s use or attempted use of unlawful
        force.



                                             12
In the application paragraph of the charge, the jury was instructed as follows:

             Now, if you find and believe from the evidence beyond a
      reasonable doubt that on the occasion in question the Defendant REX A.
      JOHNSON, did then and there unlawfully intentionally, knowingly, and
      recklessly cause bodily injury to JOHN STOCKWELL, II, hereafter styled
      the Complainant, by striking the Complainant with his hand, but you
      further find from the evidence, or you have a reasonable doubt thereof,
      that viewed from the standpoint of the Defendant at the time, from the
      words or conduct, or both, of JOHN STOCKWELL, II, it reasonably
      appeared to the Defendant that his person was in danger of bodily injury
      and there was created in his mind a reasonable expectation or fear of
      bodily injury from the use of unlawful force at the hands of JOHN
      STOCKWELL, II, and that acting under such apprehension and
      reasonably believing that the use of force on his part was immediately
      necessary to protect himself against JOHN STOCKWELL, II use or
      attempted use of unlawful force, the Defendant did cause bodily injury to
      JOHN STOCKWELL, II by striking Complainant with his hand, then you
      should acquit the Defendant, or if you have a reasonable doubt as to
      whether or not the Defendant was acting in self-defense on said occasion
      and under the circumstances, then you should give the Defendant the
      benefit of that doubt and say by your verdict ―not guilty.‖

      The charge does not include any instructions as to defense of property or third-

person defense of property. And appellant admits that his trial counsel did not object to

the charge as it was submitted and that his trial counsel did not request that the charge

include instructions on defense of property or third-person defense of property.

Nevertheless, appellant argues that we should apply the egregious harm analysis

articulated in Almanza v. State to this matter. See 686 S.W.2d 157, 171 (Tex. Crim.

App. 1984).

      However, the court of criminal appeals has held that a ―defensive issue‖ is not

―applicable to the case‖ unless the defendant ―timely requests the issue or objects to the

omission of the issue in the jury charge.‖ Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim.

App. 1998). Because appellant did not request that the charge include instructions on

defense of property and third-person defense of property and because he did not object

                                            13
to the omission of these issues in the charge, we conclude that the trial court had no

duty to sua sponte instruct the jury on these issues and that a jury instruction on these

issues was not applicable to the case absent a request by the defense for their inclusion

in the charge. See Tolbert v. State, 306 S.W.3d 776, 781-82 (Tex. Crim. App. 2010);

Posey, 966 S.W.2d at 62; Brazelton, 947 S.W.2d at 646; see also Vasquez v. State,

919 S.W.2d 433, 434 (Tex. Crim. App. 1996) (holding that ―[i]n order to preserve error

relating to the jury charge[,] there must be an objection or a requested charge‖) (citing

Boles v. State, 598 S.W.2d 274, 278 (Tex. Crim. App. 1980)). Because there was no

jury-charge ―error‖ with respect to the absence of these instructions in the charge, we

conclude that Almanza‘s egregious harm analysis does not apply. See Tolbert, 306

S.W.3d at 782; Posey, 966 S.W.2d at 61 (stating that Almanza does not apply unless

the appellate court first finds error in the jury charge); see also Almanza, 686 S.W.2d at

171.

       With regard to the self-defense instruction included in the charge, appellant

argues that the instruction was incomplete because it failed to ―instruct the jury that

Defendant had a ‗reasonable belief‘ that the use of force was immediately necessary to

protect himself.‖ We find this argument to be meritless for several reasons.

       First, as discussed above, appellant‘s trial counsel did not object to the charge as

it was submitted. Second, we do not believe appellant was harmed because the charge

specifically noted the following with regard to the applicable presumption for self-

defense:   ―Upon the law of self-defense, you are instructed that a person is justifiable

[sic] in using force against another when and to the degree they reasonably believe the

force is immediately necessary to protect themselves against the other person‘s use or



                                            14
attempted use of unlawful force.‖ (Emphasis added.) See TEX. PENAL CODE ANN. §

9.31. Because the charge properly instructed the jury as to the ―reasonable belief‖

presumption for self-defense as outlined in section 9.31 of the penal code, we reject this

contention.    See Casey v. State, 215 S.W.3d 870, 886-87 (Tex. Crim. App. 2007)

(noting that the trial court did not err by including the word ―victim‖ in the jury charge

because the charge ―set forth the law applicable to the case by tracking the language of

the statute‖); Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (holding

that an instruction that tracks statutory language ―as it is set out by the Texas

Legislature will not be deemed error on the part of a trial judge‖); Riddle v. State, 888

S.W.2d 1, 8 (Tex. Crim. App. 1994) (―A jury charge which tracks the language of a

particular statute is a proper charge on the statutory issue.‖). Accordingly, we overrule

appellant‘s second issue.

                                     III.   CONCLUSION

         Having overruled all of appellant‘s issues, we affirm the judgment of the trial

court.

                                                       ___________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
26th day of May, 2011.




                                            15
