                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                        No. 07-18-00310-CR


                          BRANDI MICHELLE CREWS, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                               On Appeal from the 47th District Court
                                       Randall County, Texas
                   Trial Court No. 28,083-A, Honorable Dan L. Schaap, Presiding

                                       December 30, 2019

                                MEMORANDUM OPINION
                           Before PIRTLE and PARKER and DOSS, JJ.


       Appellant, Brandi Michelle Crews, was found guilty of assault on a family member.1

In this appeal, appellant challenges (1) the trial court’s refusal to include a self-defense

instruction in the jury charge and (2) the sufficiency of the evidence establishing her

identity. We affirm the judgment of the trial court.




       1   See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2019).
                                         Background


       Appellant’s mother, Lou Ann, characterized her relationship with appellant as

“difficult.” On May 22, 2017, they had been “fussing at each other,” as they sometimes

did. When Lou Ann refused to allow appellant to borrow her car, the fighting intensified.

Lou Ann went into her bedroom, shut the door, and began getting ready for work.

Appellant entered Lou Ann’s room and grabbed her by the shoulders, causing Lou Ann

to topple over her chair onto the floor. Lou Ann testified that she could not remember

everything that happened after that, but she did recall that appellant “was mad and she

was on top of [her] and she was like out of control.” Lou Ann grabbed her cordless phone

to call for help, but appellant took it from her and began hitting her face with it.


       After appellant got off her, Lou Ann sat on the end of her bed. She heard a phone

ringing. Soon appellant returned to the room with the kitchen phone, which she held to

Lou Ann’s ear. Lou Ann’s other daughter, Lindsay, had called. Lindsay had been at the

house earlier in the day, trying to ease the conflict brought on by her sister’s “meltdown.”

Appellant instructed Lou Ann to tell Lindsay that everything was fine. Although Lou Ann

relayed the message, Lindsay was unconvinced.               Lindsay called the police and

proceeded to her mother’s house.


       At the house, Lindsay and the police observed injuries to Lou Ann and found Lou

Ann’s bedroom in disarray. Appellant exhibited scratch marks on her face, which she

attributed to her mother. Appellant stated that Lou Ann was the first aggressor. She told

one officer that Lou Ann had attacked her with a knife and told another officer that Lou

Ann had thrown the telephone at her. Neither officer believed that appellant’s scratch



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marks were consistent with her story. Lou Ann sought medical care in the emergency

room, where she was diagnosed with a concussion, a fractured right orbital socket, and

contusions.


       Appellant was arrested and charged with the offense of assault on a family

member that is enhanced to a felony by a previous conviction. See TEX. PENAL CODE

ANN. § 22.01 (b)(2)(A). The jury found her guilty as charged and assessed punishment

at six years’ confinement in prison. Appellant timely appealed.


                                         Analysis


Self-defense instruction


       In her first issue, appellant contends the trial court erred by refusing her request

for a self-defense instruction in the jury charge.      After the State rested, appellant

requested that the trial court add an instruction on self-defense to the jury charge. The

trial court denied the request.


       Appellant argues that she was entitled to the instruction and the trial court erred in

refusing to submit it to the jury. All alleged jury charge error must be considered on

appellate review regardless of preservation in the trial court. Kirsch v. State, 357 S.W.3d

645, 649 (Tex. Crim. App. 2012). We use a two-step process to review purported error

in a jury charge. Id. First, we determine whether the jury instruction is erroneous. Id.

Second, if error occurred, we must analyze the error for harm. Id.


       Self-defense is a justification for otherwise unlawful conduct. See Giesberg v.

State, 984 S.W.2d 245, 249 (Tex. Crim. App. 1998) (en banc). A person is entitled to act


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in self-defense to an assault. See TEX. PENAL CODE ANN. § 9.31(a) (West 2019) (a

defendant 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”).


       When determining whether a defensive instruction should have been provided,

appellate courts “view the evidence in the light most favorable to the defendant’s

requested” instruction. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). “A

defendant is entitled to an instruction on self-defense if the issue is raised by the evidence,

whether that evidence is strong or weak, unimpeached or contradicted, and regardless of

what the trial court may think about the credibility of the defense.” Elizondo v. State, 487

S.W.3d 185, 196 (Tex. Crim. App. 2016) (quoting Ferrel v. State, 55 S.W.3d 586, 591

(Tex. Crim. App. 2001)). Whether a defense is supported by the evidence is a sufficiency

question that we review on appeal as a question of law. Shaw v. State, 243 S.W.3d 647,

658 (Tex. Crim. App. 2007).


       A defendant is entitled to an instruction involving a justification defense “only . . .

when the defendant’s defensive evidence essentially admits to every element of the

offense including the culpable mental state, but interposes the justification to excuse the

otherwise criminal conduct.” Id. at 659 (emphasis in original). The Court of Criminal

Appeals has held that a defendant is not required to concede the State’s version of events

and that admitting to the conduct does not necessarily mean admitting to every element

if the defendant “sufficiently admits” to the commission of the offense. Gamino v. State,

537 S.W.3d 507, 511–12 (Tex. Crim. App. 2017).              Some evidence relating to the

defendant’s state of mind or “observable manifestations” of her state of mind at the time

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of the alleged act of self-defense must be adduced at trial in order to submit the issue to

the jury. See Alexander v. State, No. 03-14-00290-CR, 2016 Tex. App. LEXIS 531, at *9

(Tex. App.—Austin 2005 Jan. 21, 2016, pet. ref’d) (mem. op., not designated for

publication) (citing VanBrackle v. State, 179 S.W.3d 708, 713 (Tex. App.—Austin 2005,

no pet.)).


       In the instant case, appellant asserts that a police officer’s testimony that appellant

identified Lou Ann as the first aggressor is sufficient to warrant a self-defense instruction.

In addition, appellant points to the officer’s testimony that appellant told him the scratches

on her face were caused by Lou Ann. Appellant further avers that testimony about past

physical altercations between appellant and Lou Ann strengthens her claim to a self-

defense instruction.


       Here, appellant did not “sufficiently admit” to the commission of the offense.

Moreover, appellant has not identified anything Lou Ann did or said that would have

reasonably caused appellant to believe that the use of force was necessary to defend

herself. There is no evidence that Lou Ann indicated that she intended to injure appellant

or that appellant feared that Lou Ann would harm her. If the accused raises the issue of

self-defense, she is entitled to an instruction and charge “so long as such evidence shows

the complainant, by words or acts, caused the accused to reasonably believe [she] was

in danger” and that her use of force was immediately necessary. Preston v. State, 756

S.W.2d 22, 24–25 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (emphasis in

original). Here, the record reflects appellant’s stated belief that Lou Ann started the fight.

This bare assertion is insufficient to show why appellant believed it was necessary to

defend herself as she claims she did. Without evidence of any words from or acts by Lou

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Ann that would have reasonably caused appellant to believe she was in danger, we

cannot conclude the trial court erred in refusing the requested instruction on self-defense.

Accordingly, we overrule appellant’s first issue.


Evidence of identity


       In her second issue, appellant asserts that the evidence was insufficient to prove

that she was the person who committed the charged offense. As she did at trial, appellant

contends that the State failed to prove her identity because “at no time did [Lou Ann]

indicate from the witness stand that the person sitting next to defense counsel was in fact

the same person that struck her with a telephone.”


       We review challenges to the sufficiency of the evidence by applying the standard

enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under this

standard, evidence is insufficient to support a conviction if, considering all the record

evidence in the light most favorable to the verdict, no rational fact finder could have found

that each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson, 443 U.S. at 319. We consider both direct and circumstantial

evidence and all reasonable inferences that may be drawn from the evidence in making

our determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The

Jackson standard defers to the factfinder to resolve any conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from “basic facts to ultimate

facts.” Jackson, 443 U.S. at 318–19.




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       We find appellant’s point to be without merit. A courtroom identification is not

required when other evidence is presented establishing the culpability of the defendant.

See Conyers v. State, 864 S.W.2d 739, 740 (Tex. App.—Houston [14th Dist.] 1993, pet.

ref’d). In this case, the evidence included photographs taken by a police officer at Lou

Ann’s house shortly after the assault. These photographs depicted the individual who

went by the name of Brandi Crews and who told the officer about the altercation she had

just had with her mother, Lou Ann. The jurors could have compared the photographs of

that individual at the crime scene to the individual on trial and reasonably concluded that

they were one and the same person. Therefore, we overrule appellant’s second issue.


                                       Conclusion


       We affirm the trial court’s judgment.




                                                        Judy C. Parker
                                                           Justice
Do not publish.




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