                                                                 ACCEPTED
                                                             01-15-00101-CR
                                                  FIRST COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                        8/31/2015 7:47:13 PM
                                                       CHRISTOPHER PRINE
                                                                      CLERK
     No. 01-15-00101-CR
             In the
       Court of Appeals                     FILED IN
                                     1st COURT OF APPEALS
            For the                      HOUSTON, TEXAS
    First District of Texas          8/31/2015 7:47:13 PM
          At Houston                 CHRISTOPHER A. PRINE
                                             Clerk

    

       No. 13-CR-3057
 In the 405th District Court of
 Of Galveston County, Texas
    

BRIAN DARNELL JOHNSON
            Appellant
              v.
  THE STATE OF TEXAS
            Appellee

   

    APPELLANT’S BRIEF

   



                        KEVIN STRYKER
                        State Bar Number: 24037565
                        2600 South Shore Blvd., Ste. 300
                        League City, Texas 77573
                        Telephone: 409-632-0212
                        Fax Number: 1-888-252-3033
                        Strykerlawfirm@gmail.com

                        Attorney for Appellant


ORAL ARGUMENT REQUESTED
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure 39.1, Appellant requests oral argument.

                     IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rules of Appellate Procedure 38.1(a) and 38.2(a)(1)(A), a

complete list of the names of all interested parties, and the names and addresses of

all trial and appellate counsel, is provided below:

      Counsel for the State:

             Jack RoadyGalveston County Criminal District Attorney

             T. Phillip Washington—Assistant District Attorney at trial

             Allison Lindblade—Assistant District Attorney on appeal

             Galveston County Criminal District Attorney’s Office
             600 59th Street, Suite 1001
             Galveston, Texas 77551

      Appellant or Criminal Defendant:

             Brian Darnell Johnson

      Counsel for Appellant:

             Lynette K. Briggs—Counsel at trial

             7917 Highway 6
             Hitchcock, Texas 77563




                                           i
                 Kevin Stryker—Counsel on appeal

                 2600 South Shore Blvd., Suite 300
                 League City, Texas 77573

        Trial Judge:

                 The Honorable Michelle Slaughter—Presiding Judge of the 405th
                 District Court


                                      TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS .......................................................................................... ii

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

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 4

APPELLANT’S FIRST POINT OF ERROR ............................................................ 6

        The Evidence was Legally Insufficient to Convict Appellant of
           Aggravated Assault Causing Bodily Injury – Deadly Weapon, as
           charged in the Indictment, because There was Reasonable Doubt
           whether Appellant Committed the Offense in Self-Defense. ................ 6

APPELLANT’S SECOND POINT OF ERROR ..................................................... 13

        The Trial Court Reversibly Erred in Not Including a Jury Instruction
            under Texas Penal Code Section 2.03(d) in the Jury Charge on
            Guilt/Innocence. .................................................................................... 13

                                                        ii
APPELLANT’S THIRD POINT OF ERROR......................................................... 19

         The Trial Court Reversibly Erred by not Including in the Jury Charge
             on Guilt/Innocence an Application paragraph Applying the Self-
             Defense Instruction under Texas Penal Code Sections 9.31 and
             9.32 to the Facts of the Instant Case. ................................................... 19

APPELLANT’S FOURTH POINT OF ERROR ..................................................... 23

         The Trial Court Reversibly Erred by not Including in the Jury Charge
             on Guilt/Innocence the Presumption found in Texas Penal Code
             Sections 9.31 and 9.32, along with the Required Language for
             Presumptions Favoring a Defendant under Texas Penal Code
             Section 2.05(b). ...................................................................................... 23

APPELLANT’S FIFITH POINT OF ERROR ........................................................ 36

         The Trial Court Reversibly Erred by not Including in the Jury Charge
             on Guilt/Innocence the Fail-to-Retreat Language found in Texas
             Penal Code Sections 9.31(e)-(f) and 9.32(c)-(d). ................................. 36

CONCLUSION AND PRAYER ............................................................................. 41

CERTIFICATE OF COMPLIANCE ....................................................................... 43

CERTIFICATE OF SERVICE ................................................................................ 44


                                      INDEX OF AUTHORITIES

CASES

Abdnor v. State,
  871 S.W.2d 726 (Tex. Crim. App. 1994) .............................................................20
Allen v. State,
  249 S.W.3d 680 (Tex. App.—
  Austin 2008, no pet.) ..............................................................................................7


                                                          iii
Allen v. State,
  253 S.W.3d 260 (Tex. Crim. App. 2008) .................................... 15, 16, 17, 31, 39
Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1985) .......................................... 14, 15, 31, 39
Barrera v. State,
  982 S.W.2d 415 (Tex. Crim. App. 1998) ...................................................... 19, 20
Berry v. State,
  424 S.W.3d 579 (Tex. Crim. App. 2014) ...............................................................8
Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010) ...............................................................7
Byrd v. State,
  336 S.W.3d 242 (Tex. Crim. App. 2011) ...............................................................6
Chamberlain v. State,
  998 S.W.2d 230 (Tex. Crim. App. 1999) .......................................... 19, 23, 36, 40
Clayton v. State,
  235 S.W.3d 772 (Tex. Crim. App. 2007) ...............................................................7
Ellison v. State,
  86 S.W.3d 226 (Tex. Crim. App. 2002) ...............................................................15
Holloman v. State,
 948 S.W.2d 349 (Tex. App.—
 Amarillo 1997, no pet.) ................................................................................. 21, 26
Jackson v. Virginia,
  443 U.S. 307 (1979) ...........................................................................................6, 7
Laster v. State,
  275 S.W.3d 512 (Tex. Crim. App. 2009) ...............................................................7
Miller v. State,
 815 S.W.2d 582 (Tex. Crim. App. 1991) .............................................................26
Olivas v. State,
  202 S.W.3d 137 (Tex. Crim. App. 2006) .............................................................31
Oursbourn v. State,
 259 S.W.3d 159 (Tex. Crim. App. 2008) ...................................................... 30, 38
Russell v. State,
  834 S.W.2d 79 (Tex. App.—
  Dallas 1992, pet. ref’d) .........................................................................................14


                                                         iv
Saxton v. State,
  804 S.W.2d 910 (Tex. Crim. App.1991) ................................................................8
Torres v. State,
  7 S.W.3d 712 (Tex. App.—
  Houston [14th Dist.] 1999, pet. ref’d) ........................................................... 21, 26
Villarreal v. State,
  286 S.W.3d 321 (Tex. Crim. App. 2009) ...............................................................7
Villarreal v. State,
  453 S.W.3d 429 (Tex. Crim. App. 2015) .......................................... 30, 32, 33, 35
Warner v. State,
 245 S.W.3d 458 (Tex. Crim. App. 2008) ...................................................... 15, 20
Wilkerson v. State,
 920 S.W.2d 404 (Tex. App.—
 Houston [1st Dist.] 1996, no pet.) ........................................................................14
Williams v. State,
 235 S.W.3d 742 (Tex. Crim. App. 2007) ...............................................................8
Winfrey v. State,
 323 S.W.3d 875 (Tex. Crim. App. 2010) ...............................................................8


STATUTES

TEX. CODE CRIM. PROC. ANN. art. 36.14........................................................... 30, 38
TEX. PENAL CODE ANN § 9.32 ...................................................................................9
TEX. PENAL CODE ANN. § 19.02 ..............................................................................29
TEX. PENAL CODE ANN. § 2.03 ..............................................................................8, 9
TEX. PENAL CODE ANN. § 2.03(d) ............................................................... 13, 14, 21
TEX. PENAL CODE ANN. § 2.05(b) ............................................................................26
TEX. PENAL CODE ANN. § 2.05(b)(2) .......................................................................31
TEX. PENAL CODE ANN. § 22.01 ................................................................................9
TEX. PENAL CODE ANN. § 9.31 ......................................................... 9, 10, 19, 24, 29
TEX. PENAL CODE ANN. § 9.31(e)-(f)................................................................ 37, 40
TEX. PENAL CODE ANN. § 9.32 .................................................................... 10, 25, 29

                                                      v
TEX. PENAL CODE ANN. § 9.32(c)-(d) ............................................................... 37, 40


RULES

TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................... i
TEX. R. APP. P. 39.1.................................................................................................... i
TEX. R. APP. P. 9.4(g) ................................................................................................. i
TEX. R. APP. P. 9.4(i)................................................................................................43




                                                           vi
TO THE HONORABLE COURT OF APPEALS:

                         STATEMENT OF THE CASE

      In the 405th District Court of Galveston County, Texas, in cause number 13-

CR-3057, Appellant was charged by Indictment with Aggravated Assault – Deadly

Weapon. The cause was tried before a jury and the same returned a verdict of

guilty on January 15, 2015.     Appellant elected to have the same jury assess

punishment. Said jury, after having found the State’s punishment-enhancement

allegations to be true, assessed Appellant’s punishment at forty years’ confinement

in the Texas Department of Criminal Justice, Correctional Institutions Division

(TDCJ), on January 16, 2015. Appellant timely filed written notice of appeal on

January 16, 2015.

                       

                           STATEMENT OF FACTS

      On the night of September 24, 2015, Appellant and others were socializing

at Obie’s, a local pool-hall in La Marque, Texas, owned by Appellant’s uncle.

(RRIV – 26-27, 29, 32; RRV – 29-30). Amongst many that were present at Obie’s

were Appellant, Don Miles (“Miles”), Brittany Turner (“Turner”), and a guy

named Alex (“Alex”). (RRIV – 32). At some point during the night, Miles,

assaulted Appellant by punching Appellant after Appellant, Miles, and Alex got

into an argument regarding Appellant’s disabled younger brother being harassed
on a separate occasion. (RRIV – 33-37; RRV – 32, 34, 73, 96, 117). Miles, who

had an extensive criminal history, including assaults, and who was serving a three-

year felony sentence for Robbery at the time of Appellant’ trial, was known to

carry a knife with him; on this night, Miles wore his knife holstered on the outside

of his pants. (RRIV – 45, 66-67, RRV – 33, 40, 52). During this initial assault

inside the bar, Miles did not brandish the knife. (RRV – 32-33).

      Separately in the bar, several females in the group began to fight amongst

themselves. (RRIV – 37-39, 92-93, 97; RRV – 32-33). Eventually, somebody at

the bar proclaimed, “the police are coming,” and nearly everyone began to leave

the bar. (RRIV – 37, 39-40; RRV – 35-36).

      Testimony differs on what exactly happened once Appellant and Miles were

outside of the bar. Appellant testified that he went outside of Obie’s and Miles and

Alex came at Appellant again and started beating Appellant up. (RRV – 36-42,

74). Appellant testified that Miles then took out his knife, which had a blade

approximately five to seven inches in length, and cut Appellant several times.

(RRIV – 82; RRV – 36-37, 40). Appellant repeatedly testified that he was afraid

for his life. (RRV – 38, 40-41, 71, 77). Appellant testified that while he was on

the ground and being “beat up” and cut by Miles and Alex, Appellant grabbed a

gun and shot at Miles “two or three times” in self-defense, hitting Miles once.

(RRV – 39-41, 50, 61, 68). Appellant testified that he then got up and ran to his

                                         2
car while being chased by Miles and Alex; Appellant drove to a family-member’s

house where he met briefly with a friend, Jennifer Warfield (“Warfield”). (RRIV –

130-139; RRV – 47, 76). After he and Warfield talked in her car, Appellant ran

inside his family’s house after seeing a vehicle coming down the street. (RRIV –

137).    Appellant was arrested approximately two months later for the instant

charge. (RRV – 77).

        Miles, who admitted at trial that he was intoxicated the night of the shooting,

testified that once he was outside of Obie’s, he saw Appellant and Appellant told

Miles that he needed to leave. (RRIV – 42, 44). Miles testified that, “because I’m

pissed,” he walked toward Appellant and Appellant was backing up. (RRIV – 43).

Miles testified that he believed, since they were now outside the pool-hall, it was

“open-season” and “we should just go ahead and handle it like men.” (RRIV – 41,

71).

        Miles testified that he then turned his back to Appellant and Appellant shot

him in the buttocks area. (RRIV – 46); (SX 10-12). Miles testified that he drew

his knife and Appellant shot the gun a few more times, though testimony was never

adduced where Miles thought Appellant was shooting. (RRIV – 47-48).

        After the confrontation, neither Miles nor Appellant wanted the police

involved. (RRIV – 50 46; RRV – 69). Miles testified that he got into a car and,

though he initially did not want to go to the hospital because he did not want the

                                           3
police involved, he was convinced by others that he needed to go and so drove

himself to the hospital. (RRIV – 50-51). Miles testified that the wound caused

him only “slight discomfort” at the time of the shooting and he felt no pain from

the shooting by the time of trial. (RRIV – 56, 64).

      The only other eye witness to testify at trial regarding what had happened at

Obie’s was Brittany Turner (“Turner”), the girlfriend of Appellant’s cousin.

(RRIV – 83-122). Turner testified that she left to go outside of Obie’s when she

heard someone say they had called the police; she testified that once outside, she

was getting into her vehicle when Appellant “came around the corner of Obie’s

and started shooting.”    (RRIV – 97-98).      However, Turner admitted that she

actually did not see who was shooting at first; she testified that “the first sound of

the gun going off we all froze and looked behind use [and saw] Brian Johnson

standing there with a gun.” (RRIV – 99, 100). Turner testified that she did not

know whether Miles, or anyone else, had a knife. (RRIV – 102, 119, 121).

                         


                         SUMMARY OF THE ARGUMENT

      First, the evidence was legally insufficient to convict Appellant of

Aggravated Assault – Deadly Weapon, as charged in the indictment, because there

was reasonable doubt as to whether Appellant committed the offense in self-



                                          4
defense.      Therefore, this Court should reverse the jury trial conviction for

Aggravated Assault – Deadly Weapon and acquit Appellant of the same.

      Second, the trial court reversibly erred during the guilt/innocence phase of

Appellant’s trial by submitting to the jury a charge that did not include the law

applicable to the case, per Texas Penal Code Section 2.03(d), that a reasonable

doubt on the issue of self-defense required Appellant be acquitted, and Appellant

was egregiously harmed by said error.           Therefore, this Court should vacate

Appellant’s conviction for Aggravated Assault – Deadly Weapon and remand the

case back to the trial court for a new trial.

      Third, the trial court reversibly erred during the guilt/innocence phase of

Appellant’s trial by submitting to the jury a charge that did not include an

application paragraph for self-defense, and Appellant was egregiously harmed by

said error.     Therefore, this Court should vacate Appellant’s conviction for

Aggravated Assault – Deadly Weapon and remand the case back to the trial court

for a new trial.

      Fourth, the trial court reversibly erred by not including in the guilt/innocence

phase jury charge the presumption found in Texas Penal Code Sections 9.31(a) and

9.32(b), along with the required language for presumptions favoring a defendant

under Texas Penal Code Section 2.05(b), and Appellant was egregiously harmed

by said error. Therefore, this Court should vacate Appellant’s conviction for

                                            5
Aggravated Assault – Deadly Weapon and remand the case back to the trial court

for a new trial.

      Fifth, the trial court reversibly erred during the guilt/innocence phase of

Appellant’s trial by submitting to the jury a charge that did not include the law

applicable to the case, per Texas Penal Code Sections 9.31(e) and (f) and 9.32(c)

and (d), regarding Appellant’s duty to retreat, and Appellant was egregiously

harmed by said error. Therefore, this Court should vacate Appellant’s conviction

for Aggravated Assault – Deadly Weapon and remand the case back to the trial

court for a new trial.

                         

                   APPELLANT’S FIRST POINT OF ERROR

       The Evidence was Legally Insufficient to Convict Appellant of Aggravated
Assault Causing Bodily Injury – Deadly Weapon, as charged in the Indictment,
because There was Reasonable Doubt whether Appellant Committed the Offense
in Self-Defense.

      Due process requires that the State prove every element of the charged crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Byrd v.

State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011).            When reviewing the

sufficiency of the evidence to support a conviction, courts consider all of the

evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the offense beyond


                                         6
a reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893,

899 (Tex. Crim. App. 2010). The sufficiency of the evidence is measured by

reference to the elements of the offense as defined by a hypothetically correct jury

charge for the case. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App.

2009).

      In determining the legal sufficiency of the evidence, courts must consider all

of the evidence in the record: both direct and circumstantial evidence, properly or

improperly admitted evidence, and evidence submitted by either the prosecution or

the defense. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Allen

v. State, 249 S.W.3d 680, 688-89 (Tex. App.—Austin 2008, no pet.). Courts

review all of the evidence in the light most favorable to the verdict and assume that

the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew

reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at

318; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).

      A legal-sufficiency review requires an appellate court to defer to the jury’s

determinations of the witnesses’ credibility and the weight to be given their

testimony. Brooks, 323 S.W.3d at 899. The jury, as exclusive judge of the facts, is

entitled to weigh and resolve conflicts in the evidence and draw reasonable

inferences therefrom. Clayton, 235 S.W.3d at 778.           In assessing the legal

sufficiency of the evidence, courts have a duty to ensure that the evidence

                                         7
presented actually supports a conclusion that the defendant committed the charged

crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see

Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010).

      If an appellate court determines that the accused’s conviction is not

supported by legally sufficient evidence, the court must render judgment acquitting

the accused of the offense. See, e.g., Berry v. State, 424 S.W.3d 579, 587 (Tex.

Crim. App. 2014) (acquitting the defendant of misapplication of fiduciary property

upon concluding that the record lacked sufficient evidence to sustain that

conviction).

      Regarding legal sufficiency regarding a claim of self-defense appellate

courts look to all of the evidence in the light most favorable to the verdict to

determine whether a rational jury could have found the accused guilty of all

essential elements of the offense beyond a reasonable doubt and also could have

found against Appellant on the self-defense issue beyond a reasonable doubt.

Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App.1991); see also TEX. PENAL

CODE ANN. § 2.03 (stating “the prosecuting attorney is not required to negate the

existence of a defense in the accusation charging commission of the offense…If

the issue of the existence of a defense is submitted to the jury, the court shall

charge that a reasonable doubt on the issue requires that the defendant be

acquitted.”).

                                        8
      In the instant case, in order to achieve a conviction on a second-degree

felony, the State was required to prove beyond a reasonable doubt that Appellant

intentionally, knowingly, or recklessly caused bodily injury to Miles by shooting

him with a handgun, and that Appellant did then and there use or exhibit a deadly

weapon. TEX. PENAL CODE ANN. § 22.01; (CR – 6, 58-62).

      Additionally, if there was a reasonable doubt as to whether Appellant caused

bodily injury to Miles in self-defense, the jury was required to acquit Appellant.

See TEX. PENAL CODE ANN. § 2.03; TEX. PENAL CODE ANN. § 9.31; TEX. PENAL

CODE ANN § 9.32; (CR- 58-62).

      Texas Penal Code Section 9.31 states, in pertinent part:

      (a)...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. The actor’s belief that the force was immediately
      necessary as described by this subsection is presumed to be reasonable
      if the actor:

            (1) knew or had 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;

                (B) unlawfully and with force removed, or was attempting
                to remove unlawfully and with force, the actor from the
                actor’s habitation, vehicle, or place of business or
                employment; or



                                         9
                 (C) was committing or attempting to commit aggravated
                 kidnapping, murder, sexual assault, aggravated sexual
                 assault, robbery, or aggravated robbery;

             (2) did not provoke the person against whom the force was
             used; and

             (3) was not otherwise engaged in criminal activity, other than a
             Class C misdemeanor that is a violation of a law or ordinance
             regulating traffic at the time the force was used. TEX. PENAL
             CODE ANN. § 9.31.

Texas Penal Code Section 9.32 states, in pertinent part:

      (a) A person is justified in using deadly force against another:

             (1) if the actor would be justified in using force against the
             other under Section 9.31; and

             (2) when and to the degree the actor reasonably believes the
             deadly force is immediately necessary:

                   (A) to protect the actor against the other’s use or
                   attempted use of unlawful deadly force; or

                   (B) to prevent the other’s imminent commission of
                   aggravated kidnapping, murder, sexual assault,
                   aggravated sexual assault, robbery, or aggravated
                   robbery.

      (b) The actor’s belief under Subsection (a)(2) that the deadly force
      was immediately necessary as described by that subdivision is
      presumed to be reasonable if the actor was committing or attempting
      to commit an offense described by Subsection (a)(2)(B). TEX. PENAL
      CODE ANN. § 9.32.

      Given the evidence adduced at trial in the instant case, no reasonable jury

could have found that Appellant was not acting in self-defense when he shot Miles.

At trial, Miles admitted that he was was intoxicated the night of the shooting.
                                         10
(RRIV – 44, 73). Miles admitted that he assaulted Appellant just moments before

the shooting took place. (RRIV – 37; RRV – 103-104). Miles admitted that he

was known to carry a knife with him; that he had a knife with him—with a blade

approximately five inches in length—on the night of the shooting; and that, on that

occasion, Miles carried the knife in a holster on the outside of his clothes. (RRIV

– 45-46, 67, 82; RRV – 52). Miles admitted that once he and Appellant walked

outside of Obie’s, Appellant told Miles to leave, Appellant began backing up,

Miles walked toward Appellant, and Miles believed that “now it’s open season.”

(RRIV – 41-43, 45). Miles even admitted that he was “just as guilty as Appellant.”

(RRIV – 44).

      Even without any further testimony, this evidence alone was enough for any

jury to have had a reasonable doubt as to whether Appellant was acting in self-

defense when he shot Miles. Additionally, Miles testified that he took his knife out

of its holster; the only dispute at trial was whether Miles took his knife out before

or after Appellant shot Miles. (RRIV – 46, RRV 37-41). Miles testified that

Appellant shot him before he took his knife out. Id. Appellant testified that Miles

took his knife and cut Appellant before Appellant ever shot Miles. Id.

      Appellant testified that he went outside of Obie’s and Miles and Alex came

at Appellant and started beating Appellant up again.            (RRV – 36-41, 50).

Appellant testified that he was afraid for his life, especially after Miles took out his

                                          11
knife and stabbed him four times.       (RRV – 36-41, 77).      Appellant admitted

shooting Miles, but repeatedly testified that he did so in self-defense and only

because Miles and Alex were attacking him, at first with their fists and then with

Miles’s knife. (RRV – 36-41, 68, 77).

      There was no physical or scientific evidence presented by the State at trial

that countered Appellant’s testimony that he acted only in self-defense.

      Turner also testified at trial that Miles hit Appellant first in the pool hall.

(RRIV – 96). And though Turner testified that Appellant shot Miles, she also

testified that she did not see whether Miles had a knife, a knife that even Miles

agreed he had and pulled out of its holster during the confrontation with Appellant.

(RRIV- 46-47, 102, 117, 119, 121).            Furthermore, Turner’s testimony that

Appellant just “came around the corner and started shooting” was not only

contrary to what Appellant testified, it was an unreliable recounting of the events

even when compared to Miles’s own testimony. (RRIV – 39-47, 98).

      Finally, the State may point to Appellant’s behavior after the shooting as

evidencing a consciousness of guilt; specifically, the State may argue that

Appellant’s reluctance to be interviewed by the police or to go to the hospital to

treat his injuries from being cut with the knife was somehow evidence that

Appellant knew that he had had not acted in self-defense. However, Miles testified

that he had the exact same behavior after the shooting. (RRIV – 51-52). Miles

                                         12
admitted at trial that, despite being shot, he did not want to go to the hospital

because “I knew they’d involve the police…I didn’t want to go to the hospital.”

Id. A reasonable inference could be made that Miles did not want the police

involved because he feared he could be charged with Aggravated Assault or

Attempted Murder.

       Given the evidence adduced at trial, no reasonable jury could have found

against Appellant’s claim at trial that he shot Miles in self-defense under Sections

9.31 or 9.32 of the Texas Penal Code. Therefore, this Court should reverse the jury

trial conviction for Aggravated Assault – Deadly Weapon and acquit Appellant of

the same.

                APPELLANT’S SECOND POINT OF ERROR

     The Trial Court Reversibly Erred in Not Including a Jury Instruction
under Texas Penal Code Section 2.03(d) in the Jury Charge on Guilt/Innocence.

      Texas Penal Code Section 2.03 states, in pertinent part, that “if the issue of

the existence of a defense is submitted to the jury, the court shall charge that a

reasonable doubt on the issue requires that the defendant be acquitted.” TEX.

PENAL CODE ANN. § 2.03(d).

      In the instant case, the jury was charged with the issue of self-defense under

both Texas Penal Code Sections 9.31 and 9.32. However, the trial court failed to

charge the jury that a reasonable doubt on the issue of self-defense under the above


                                        13
sections required that Appellant be acquitted. (CR – 58-62); TEX. PENAL CODE

ANN. § 2.03(d). Therefore, the trial court clearly erred. See Wilkerson v. State,

920 S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (“If the issue

of the existence of self-defense is submitted to the jury, the court shall charge the

jury that if it believes that the defendant was acting in self-defense or has a

reasonable doubt thereof, it must acquit the defendant.”); Russell v. State, 834

S.W.2d 79, 81-82 (Tex. App.—Dallas 1992, pet. ref’d) (holding that Section

2.03(d) of the Penal Code requires the trial court to instruct the jurors that they

must acquit the accused if they have a reasonable doubt on the issue of self-

defense, and that the trial court erred by failing to include such an instruction in the

jury charge).

      In analyzing a jury charge issue, the appellate court’s initial inquiry is

whether error exists in the charge. Ngo, 175 S.W.3d at 743. If error is found, the

degree of harm necessary for reversal depends on whether the defendant preserved

the error by objection. Ngo, 175 S.W.3d at 743. If the defendant properly objected

to the erroneous jury charge, reversal is required if the appellate court finds that the

error caused “some harm” to the defendant’s rights. Id. If error was not preserved,

the appellate court may only reverse if the record shows “egregious harm.” See Id.

at 743-44; Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).




                                          14
      Here, Appellant’s trial counsel failed to object to the trial court’s error.

(RRV – 92-93). Therefore, this Court should use the egregious-harm standard.

Ngo, 175 S.W.3d at 743-44. Egregious harm is determined on a case-by-case

basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). To determine

whether a defendant suffered egregious harm, appellate courts are to assess the

degree of harm in light of: (1) the entire jury charge; (2) the state of the evidence,

including contested issues; (3) the arguments of counsel; and (4) any other relevant

information in the record. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App.

2008); see Almanza, 686 S.W.2d at 172.

      It is clear from the record that Appellant suffered egregious harm from the

trial court failing to submit a jury an instruction on the law under Texas Penal

Code Section 2.03(d). The Texas Court of Criminal Appeals case of Allen v. State

can serve as a good reference point with which to compare the instant case. Allen

v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008). In Allen, the defendant was

granted a Consent instruction under Texas Penal Code Section 22.06. Allen, 253

S.W.3d at 263. In the jury charge in Allen, the trial court submitted the law of

Consent and an application paragraph applying the facts of the case to the law on

the defense of Consent. Id. However, the trial court failed to instruct the jury of

the requirement that the jury acquit Allen should it have a reasonable doubt with

respect to whether the complainant consented to the assaultive conduct.            Id.

                                         15
Because Allen’s trial counsel did not object to the missing instruction at trial, the

Court of Criminal Appeals analyzed the error under the egregious error standard.

Allen, 253 S.W.3d at 264.

      The State in Allen tried to argue to the high court that other sections of the

jury charge made it clear that the State had to prove its case beyond a reasonable

doubt and, therefore, the jury was well aware of the burden regarding the defense

of Consent. Id. at 265. The high court was not persuaded by that argument,

stating:

      [T]hese reasonable-doubt instructions, by their terms, apply to the
      elements of the State’s case, not to confession-and-avoidance type of
      defensive issues such as self defense or consent. They do not amount
      to an abstract instruction that any reasonable doubt as to a defensive
      issue must be resolved in the appellant’s favor, to which we could
      reasonably assume the jury would refer in applying the application
      paragraph on consent. Nothing in the balance of the jury instructions
      inspires confidence that the jury would somehow glean that it must
      acquit the appellant in the event it should have a reasonable doubt
      with respect to the issue of consent, despite the deficiency in the
      consent instruction. Allen, 253 S.W.3d. at 265.

      In analyzing the other factors for egregious harm other than the jury charge,

the Allen court highlighted that Allen’s defense counsel stated to the jury at closing

that “the defenses have to be disproved beyond a reasonable doubt.” Id. at 266.

Furthermore, the Allen court looked at the record as a whole and concluded that

Allen’s claim that the complaining witness consented to being hit was likely “some

harm” but found, given the context, that the jury would consider the complaining

                                         16
witnesses’ statements of “come on, hit me” to be “apparent bravado” and not an

invitation to being hit. Allen, 253 S.W.3d at 267. The high court then found that

Allen did not suffer egregious harm. Id. at 268.

       In the instant the case, the jury charge did not contain the application

paragraph contained in Allen. (CR – 58-62). The jury charge contained the same

reasonable-doubt instructions regarding the elements of the State’s case, but as in

Allen, “they do not amount to an abstract instruction that any reasonable doubt as

to a defensive issue must be resolved in the appellant’s favor.” Allen 253 S.W.3d

at 260, 265. Therefore, with no application paragraph, the jury charge in the

instant case was even more harmful to Appellant than was the case in Allen.

Therefore, the first factor weighs in favor of Appellant being egregiously harmed.

       Regarding the second factor, the state of the record as a whole, the self-

defense charge in the instant case was both central to Appellant’s case and

reasonable given the facts and circumstances. As outlined above, Miles admitted

that he was intoxicated the night of the shooting. (RRIV – 44, 73). Miles admitted

that he assaulted Appellant just moments before the shooting took place. (RRIV –

37; RRV – 103-104). Miles admitted that he was known to carry a knife with him;

that he had a knife with a five-inch blade with him that night; and that he carried

that knife in a holster on the outside of his clothes. (RRIV – 45-46, 67, 82; RRV –

52).   Miles admitted that once he and Appellant walked outside of Obie’s,

                                        17
Appellant told Miles to leave, Appellant began backing up, Miles walked toward

Appellant, and Miles believed that “now it’s open season.” (RRIV – 41-43, 45).

Miles admitted that he was “just as guilty as Appellant.”           (RRIV – 44).

Additionally, Miles testified that he took his knife out of its holster, though he

testified that it was only after Appellant shot him. (RRIV – 46, RRV – 37-41).

      Appellant testified that Miles drew his knife and cut Appellant before

Appellant ever shot Miles. Id. Appellant testified that he went outside of Obie’s

and Miles and Alex came at Appellant and started beating Appellant up again.

(RRV – 36, 68). Appellant stated that he was afraid for his life, especially after

Miles took out his knife and stabbed him with it four times. (RRV – 36-41, 50, 70-

71, 74, 77). Appellant admitted shooting Miles, but repeatedly testified that he did

so in self-defense and only because Miles and Alex were attacking him, at first

with their fists and then with Miles’s knife. Id. This was credible evidence giving

rise to an issue of self-defense, not some creative argument that saying “come on,

hit me” amounted to consent to being hit as in Allen. Therefore, the second factor

weighs heavily in favor of Appellant being egregiously harmed.

      Regarding the third factor, unlike in Allen, neither the State nor Appellant

ever told the jury at closing that any reasonable doubt as to a defensive issue must

be resolved in favor of Appellant. (RRV – 101-129). Therefore, regarding the

arguments of counsel, that factor weighs more in favor of Appellant than in Allen.

                                        18
      Additionally, Appellant was egregiously harmed by the cumulative effect of

this error along with the other errors committed by the trial court regarding

mistakes in the jury charge, as argued in points of error three, four, and five. See

Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999).

      In light of the above, and given the state of the facts and evidence, this Court

should find that Appellant was egregiously harmed by the trial court’s jury-charge

error and, thus, should vacate Appellant’s conviction and remand the case for a

new trial.

                  APPELLANT’S THIRD POINT OF ERROR

      The Trial Court Reversibly Erred by not Including in the Jury Charge on
Guilt/Innocence an Application paragraph Applying the Self-Defense
Instruction under Texas Penal Code Sections 9.31 and 9.32 to the Facts of the
Instant Case.

      In the guilt/innocence phase of the instant case, the trial court instructed the

jury on the law of self-defense under Sections 9.31 and 9.32 of the Texas Penal

Code. (CR – 58-62); see TEX. PENAL CODE ANN. § 9.31; TEX. PENAL CODE ANN. §

9.31. However, the trial court was also required to apply the facts of the case to

the law. See Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998)

(affirming that a trial court errs by failing to apply the law of self-defense to the

facts of the case).     An erroneous or incomplete jury charge jeopardizes a

defendant’s right to jury trial because it fails to properly guide the jury in its fact-


                                          19
finding function. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994).

Because, here, the trial court failed to provide an application paragraph in the

guilt/innocence jury charge applying the law on self-defense to the facts of the

instant case, the trial court clearly committed jury charge error. See Barrera, 982

S.W.2d at 416.

      Appellant’s trial counsel failed to object to the trial court’s error in this

regard. (RRV – 92-93). Therefore, this Court should use the egregious-harm

standard. Ngo, 175 S.W.3d at 743-44. Regarding the first factor in determining

egregious harm, the jury charge as a whole, the jury charge in the instant case only

mentioned self-defense in the abstract, referring to the law only. (CR – 58-92);

Warner, 245 S.W.3d at 461. At no point did the charge instruct the jury on how

they were to apply the law on self-defense to the facts of the instant case. See (CR

– 58-92).

      The trial court applied the facts to the law and elements of the State’s case

and, in doing so, it instructed the jury that if they found that Appellant committed

the elements of Aggravated Assault “then you will find the Defendant guilty of

Aggravated Assault with a Deadly Weapon as charged in the indictment.” (CR –

59). Of course the jury could find that Appellant committed the elements of

Aggravated Assault as charged in the indictment; Appellant admitted to it. (RRV –

36-41, 50, 70-71, 74, 77). In order to get a self-defense instruction, in fact,

                                        20
Appellant must have essentially admitted to the elements of Aggravated Assault as

alleged in the indictment. See Torres v. State, 7 S.W.3d 712, 715 (Tex. App.—

Houston [14th Dist.] 1999, pet. ref’d); accord Holloman v. State, 948 S.W.2d 349,

352 (Tex. App.—Amarillo 1997, no pet.). That was not the issue in the case; the

real issue for the jury to determine was whether there was a reasonable doubt that

Appellant committed those elements in self-defense under Section 9.31 and 9.32 of

the Texas Penal Code.

      If the jury found that Appellant committed the elements of Aggravated

Assault in self-defense, or there was reasonable doubt whether Appellant

committed those elements in self-defense, the jury was required to acquit

Appellant. See TEX. PENAL CODE ANN. § 2.03(d). However, the jury did not know

that; in fact, if the jury was to acquit Appellant for self-defense, the jury would be

directly contradicting the trial court’s instructions to “find the Defendant guilty of

Aggravated Assault with a Deadly Weapon as charged in the indictment” if they

found that he committed the elements of Aggravated Assault. (CR – 58-62).

      Referring to other law in the abstract and assuming that the jury will use it to

contradict a direct, straightforward instruction to convict Appellant if they found

that he committed the elements of the offense as alleged in the indictment is

unreasonable. Additionally, the error in not submitting an application paragraph

was especially harmful in Appellant’s case because the trial court also failed to

                                         21
instruct the jury on the law under Texas Penal Code Section 2.03(d), as outlined in

point of error number two. Thus, the first factor weighs heavily in favor of

Appellant being egregiously harmed by the trial court’s error.

      Regarding the second factor, the state of the evidence at trial and the record

as a whole, as described in point of error two, pages 17-18, and incorporated here

by reference, there was credible evidence giving rise to the issue of self-defense.

In fact, with Appellant having admitted to shooting Miles, self-defense was really

the only issue for the jury to determine. Self-defense was not a tangential part of

Appellant’s case and, so, the jury charge error was not a tangential mistake. The

trial court’s error in not submitting an application paragraph undermined the

central and only defense in Appellant’s case. Therefore, the second factor weighs

in favor of Appellant having suffered egregious harm.

      Regarding the third factor, the arguments of counsel, the State and Appellant

did talk in closing arguments about the facts of the case and the testimony

regarding self-defense. However, at no point did either party break down the

elements of self-defense as it related to the facts or tell the jurors that they were

required to acquit Appellant if they had a reasonable doubt as to whether Appellant

acted in self-defense. In short, neither party communicated to the jury what the

trial court should and would have communicated if it had submitted a proper




                                         22
application paragraph. Therefore, this third factor weighs in favor or Appellant

being egregiously harmed.

      Additionally, Appellant was egregiously harmed by the cumulative effect of

this error along with the other errors committed by the trial court regarding

mistakes in the jury charge. See Chamberlain, 998 S.W.2d 230.

      Therefore, this Court should find that Appellant was egregiously harmed by

the trial court’s jury-charge error as outlined above and, thus, should vacate the

Appellant’s conviction and remand the case to the trial court for a new trial.

                APPELLANT’S FOURTH POINT OF ERROR

       The Trial Court Reversibly Erred by not Including in the Jury Charge on
Guilt/Innocence the Presumption found in Texas Penal Code Sections 9.31 and
9.32, along with the Required Language for Presumptions Favoring a Defendant
under Texas Penal Code Section 2.05(b).

      Texas Penal Code Section 9.31 states, in pertinent part:

      (a)...The actor’s belief that the force was immediately necessary as
      described by this subsection is presumed to be reasonable if the actor:

             (1) knew or had 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;

                   (B)    unlawfully and with force removed, or was
                   attempting to remove unlawfully and with force, the actor
                   from the actor’s habitation, vehicle, or place of business
                   or employment; or

                                         23
                   (C) was committing or attempting to commit aggravated
                   kidnapping, murder, sexual assault, aggravated sexual
                   assault, robbery, or aggravated robbery;

             (2) did not provoke the person against whom the force was
             used; and

             (3) was not otherwise engaged in criminal activity, other than a
             Class C misdemeanor that is a violation of a law or ordinance
             regulating traffic at the time the force was used. TEX. PENAL
             CODE ANN. § 9.31.

Texas Penal Code Section 9.32 states, in pertinent part:

      (a) A person is justified in using deadly force against another:

             (1) if the actor would be justified in using force against the
             other under Section 9.31; and

             (2) when and to the degree the actor reasonably believes the
             deadly force is immediately necessary:

                   (A) to protect the actor against the other’s use or
                   attempted use of unlawful deadly force; or

                   (B) to prevent the other’s imminent commission of
                   aggravated kidnapping, murder, sexual assault,
                   aggravated sexual assault, robbery, or aggravated
                   robbery.

      (b) The actor’s belief…that the deadly force was immediately
      necessary as described by that subdivision is presumed to be
      reasonable if the actor:

             (1) knew or had reason to believe that the person against deadly
             force was used:
                   ...

                   (c) was committing or attempting to commit an offense
                   described by Subsection (a)(2)(B);

                                         24
              (2) did not provoke the person against whom the force was
              used; and [the actor]

              (3) was not otherwise engaged in criminal activity, other than a
              Class C misdemeanor that is a violation of a law or ordinance
              regulating traffic at the time the force was used. TEX. PENAL
              CODE ANN. § 9.32.

Regarding presumptions, Texas Penal Code Section 2.05(b) states, in pertinent

part:

        (b) When this code or another penal law establishes a presumption in
        favor of the defendant with respect to any fact, it has the following
        consequences:

              (1) if there is sufficient evidence of the facts that give rise to the
              presumption, the issue of the existence of the presumed fact
              must be submitted to the jury unless the court is satisfied that
              the evidence as a whole clearly precludes a finding beyond a
              reasonable doubt of the presumed fact; and

              (2) if the existence of the presumed fact is submitted to the jury,
              the court shall charge the jury, in terms of the presumption,
              that:

                     (A) the presumption applies unless the state proves
                     beyond a reasonable doubt that the facts giving rise to the
                     presumption do not exist;

                     (B) if the state fails to prove beyond a reasonable doubt
                     that the facts giving rise to the presumption do not exist,
                     the jury must find that the presumed fact exists;

                     (C) even though the jury may find that the presumed fact
                     does not exist, the state must prove beyond a reasonable
                     doubt each of the elements of the offense charged; and

                     (D) if the jury has a reasonable doubt as to whether the
                     presumed fact exists, the presumption applies and the
                                            25
                  jury must consider the presumed fact to exist.       TEX.
                  PENAL CODE ANN. § 2.05(b).

      A defendant has the right to an instruction on any defensive issue raised by

the evidence, regardless of whether such evidence is strong or weak, unimpeached

or contradicted, and regardless of what the trial court may or may not think about

the credibility of the evidence. Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim.

App. 1991).    The evidence raising the defensive issue may come from the

defendant’s testimony or from other sources. In order to get a charge on self-

defense, a defendant need not admit to the specific offense charged, so long as he

sufficiently admits the conduct alleged to justify a defensive instruction.   See

Torres, 7 S.W.3d at 715; accord Holloman, 948 S.W.2d at 352.

      During the direct examination of Appellant, the following exchange

occurred:

      Defense Counsel: Did you know that Mr. Miles had a knife?

      Appellant: He keeps a knife every time I had ever saw him.

      Defense Counsel: And is it visible?

      Appellant: Yes.
      ...

      Defense Counsel: …What was the first thing you see [when coming
      out of the door of the bar]?

      Appellant: I see nothing when I came outside. I started going outside
      to go to the car I was in and they – [Miles] and Alex jumped me
      again.
                                       26
...

Defense Counsel: They jumped you. What does that mean?

Appellant: They started beating me up again.

Defense Counsel: Beating you up with what?

Appellant: First it was their fists. When I was on the ground, I seen
[Miles] pull his knife out of his belt buckle; and he cut me on my arm
four times.
...

Defense Counsel: How big is that [the blade]? How much inches do
you think that is?

Appellant: Six or seven inches?

Defense Counsel: The blade is six or seven inches…?

Appellant: Yes, ma’am.
...

Defense Counsel: So there were two people beating you up. One was
Miles and one was…

Appellant: Alex

Defense Counsel: And then what happens?

Appellant: Then my gun fell put of my back pocket, and I shot him in
the leg.

Defense Counsel: Were you afraid?

Appellant: Terribly afraid…

Defense Counsel: Were you afraid that it would be fatal?



                                  27
      Appellant: Yes ma’am, because I know how [Miles] is. (RRV – 33-
      38).

A few moments later, the following exchange occurred:

      Defense Counsel: Why were you so afraid that you used the gun?

      Appellant: Because I was on the ground and they were on top of me
      and he pulled his knife out and started sticking me with it…he pulled
      his knife and started cutting me with it.

      Defense Counsel: And were you in fear of your life?

      Appellant: Yes, ma’am.
      ...

      Defense Counsel: Did you believe that [Miles] could kill you?

      Appellant: Yes, ma’am. (RRV – 40-41).

Then, on re-direct examination of Appellant, the following exchange occurred:

      Defense Counsel: Brian, when Miles jumped you, were you afraid for
      your life?

      Appellant: Yes, ma’am, I was. (RRV – 70-71).

      It is clear from the record that there was sufficient evidence adduced at trial

that entitled Appellant to the presumption under Sections 9.31 and 9.32 because

the evidence demonstrates that Miles may have been committing or attempting to

commit murder.

      According to Section 19.02(b) of the Penal Code, Texas’s Murder statute:

      (b) A person commits an offense if he:

            (1) intentionally or knowingly causes the death of an individual;

                                         28
            (2) intends to cause serious bodily injury and commits an act
            clearly dangerous to human life that causes the death of an
            individual; or

            (3) commits or attempts to commit a felony, other than
            manslaughter, and in the course of and in furtherance of the
            commission or attempt, or in immediate flight from the
            commission or attempt, he commits or attempts to commit an
            act clearly dangerous to human life that causes the death of an
            individual. TEX. PENAL CODE ANN. § 19.02.

      There was evidence adduced at trial through the testimony of Appellant that

Miles was attempting to commit murder.         After having previously assaulted

Appellant, Miles, who had a history of violent, felony behavior, was cutting

Appellant with a large knife. A reasonable jury could infer from that behavior that

Miles was attempting “to cause the death of an individual,” namely Appellant. See

TEX. PENAL CODE ANN. § 19.02; see also TEX. PENAL CODE ANN. § 9.31; TEX.

PENAL CODE ANN. § 9.32.

      Additionally, there was evidence adduced that Appellant did not provoke

Miles. Id. Appellant testified that he walked out of Obie’s and that Miles and

Alex immediately began to beat him up. (RRV – 36). At that time, Appellant

testified that Miles took out his knife and began to cut and stab him. Id. Appellant

testified that he then shot Miles in self-defense and that, even then, Miles chased

after Appellant with Miles’s knife. (RRV – 41). Appellant also testified that he

was in fear for his life and thought Miles could kill him. (RRV – 38-40). This was


                                        29
at least some evidence from which the jury could infer that Appellant did not

provoke Miles.

      Finally, there was evidence adduced at trial that Appellant was not otherwise

engaged in criminal activity. (RRV – 28-91).

       Therefore, the presumption language in Texas Penal Code Sections 9.31 and

9.32 was law applicable to Appellant’s case and, so, should have been included in

the jury charge. See TEX. CODE CRIM. PROC. ANN. art. 36.14; Villarreal v. State,

453 S.W.3d 429 (Tex. Crim. App. 2015) (stating that when a rule or statute

requires an instruction under particular circumstances, that instruction is the law

applicable to the case); Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App.

2008) (same). Specifically, the trial court was required to include an instruction in

the jury charge on guilt/innocence that Appellant’s belief that force or deadly

force, respectively, was immediately necessary was presumed to be reasonable if

the jury believed that Miles was committing or attempting to commit murder, or

had a reasonable doubt thereof. Additionally, the jury should have been charged

with the language found in Texas Penal Code Section 2.05(b), specifically: that

the presumption applied unless the State proved beyond a reasonable doubt that the

facts giving rise to the presumption did not exist; that if the State failed to prove

beyond a reasonable doubt that the facts giving rise to the presumption did not

exist the jury must find that the presumed fact existed; that even though the jury

                                         30
may find that the presumed facts did not exist, the State must prove beyond a

reasonable doubt each of the elements charged; and that if the jury had             a

reasonable doubt as to whether the presumed facts existed, the presumption applied

and the jury must consider the presumed fact to exist. See TEX. PENAL CODE ANN.

§ 2.05(b)(2).   The trial court did not include the above jury instruction on

guilt/innocence, despite that it was clear that Appellant was entitled to said charge;

therefore, the trial court erred. (CR – 58-62).

      Appellant did not object to the charge at the jury conference and, therefore,

this Court should assess whether Appellant was egregiously harmed by said error.

(RRV – 92-93); see Allen, 253 S.W.3d at 264; Almanza, 686 S.W.2d at 174. As

outlined above, in determining whether egregious harm exists, this Court must

consider (1) the entire jury charge, (2) the state of the evidence, including the

contested issues and the weight of the probative evidence, (3) the parties’

arguments, and (4) any other relevant information revealed by the record of the

trial as a whole. Allen, 253 S.W.3d at 264; Olivas v. State, 202 S.W.3d 137, 144

(Tex. Crim. App. 2006).

      Appellant was egregiously harmed by the trial court’s error. The recent

opinion of the Court of Criminal Appeals in Villarreal v. State, 453 S.W.3d 429

(Tex. Crim. App. 2015), is helpful in highlighting how Appellant was egregiously

harmed. In Villarreal, the defendant was charged with the murder of Christopher

                                          31
Martinez (“Martinez”).     Villarreal, 453 S.W.3d at 431.       The defendant never

testified at trial; the sole evidence giving rise to a justification defense, self-

defense, was a statement by the defendant to police wherein the defendant claimed

that Martinez had attempted to “cut” the defendant with a sharp object. Id. At the

close of evidence, the trial court instructed the jury on self-defense but failed to

instruct the jury on the presumption of reasonableness found under Penal Code

Section 9.32(b). Id.

      On direct appeal, the Fourth Court of Appeals at San Antonio reversed the

verdict of guilty, holding that the presumption was law applicable to the case and

that the trial court’s error in not instructing the jury regarding that law amounted to

egregious harm. Id. The Court of Criminal Appeals granted the State’s petition

for discretionary review and held that Villarreal did not suffer egregious harm from

the trial court’s error. Villarreal, 453 S.W.3d at 443. In so holding, the high court

reviewed the four Almanza factors. Regarding the jury charge as a whole, the jury

charge in Villarreal simply contained the law on self-defense and an application

paragraph applying the facts of the case to the law of self-defense. The high court

agreed with the court of appeals that this factor weighed in favor of finding that the

defendant was egregiously harmed, though afforded “less weight to this factor”

than did the court of appeals. Id. at 433.




                                             32
      The jury charge in the instant case set forth the law on self-defense but did

not include an application paragraph, unlike the charge in Villarreal. Compare

(CR – 58-92) with Villarreal, 453 S.W.3d at 434. Furthermore, the charge in

Villarreal contained an instruction that the jurors were to acquit the defendant if

there was a reasonable doubt whether the defendant acted in self-defense, unlike

the charge in the instant case. Compare (CR – 58-92) with Villarreal, 453 S.W.3d

at 434. As in Villarreal, nowhere else in said charge was the presumption raised or

explained. Thus, the first factor weighs in favor of Appellant having been

egregiously harmed, and should weigh even more in favor of a finding that

Appellant was egregiously harmed than the jury charge in Villarreal.

      The Court of Criminal Appeals in Villarreal focused heavily on the second

factor, the state of the evidence. Several witnesses in that case testified that

Villarreal was intoxicated and aggressive on the night of the stabbing; all the

witnesses that testified at trial testified that Villarreal stabbed Martinez multiple

times and that Martinez was never holding a knife or other sharp object.

Villarreal, 453 S.W.3d at 436.        Furthermore, there was scientific evidence

presented at Villarreal’s trial that directly contradicted Villarreal’s version of the

events. Id. at 437, 439. And finally, the high court emphasized that even by

Villarreal’s own version of the facts, as he told them to the police, Villarreal had

disarmed Martinez before Villarreal ever stabbed Martinez. Id. at 439-440.

                                         33
       By contrast, in the instant case, and as outlined in previous points of error,

there was indisputable evidence that: Miles assaulted Appellant moments before

the shooting; that once outside of Obie’s, Appellant backed away from Miles while

Miles moved toward Appellant, possessing a large knife; that at some point during

the confrontation, Miles brandished his knife; and that that Miles had a history of

assaultive and violent behavior. (RRIV – 21-37, 41-44, 66-67). Miles admitted

these facts at trial.

       There was no scientific evidence offered at trial in support of Miles’s

version of the encounter. The only other witness to testify at trial about the facts

surrounding the confrontation was Turner, who admitted that she did not see

whether Miles had a knife. (RRIV – 119, 121). Appellant testified that he shot

Miles only in self-defense because he was being cut by Miles with a large knife

and was in fear for his life. (RRV – 36-41, 50, 68, 77). Therefore, the state of the

evidence was very much in dispute at the trial in the instant case, as compared to

Villarreal, and the self-defense issue was key to the dispute. Therefore, in the

instant case, the second factor also weighs in favor of Appellant being egregiously

harmed.

       Regarding the third factor, the arguments of counsel, the high court in

Villarreal noted that self-defense was only one theory argued by the defendant’s

trial counsel at closing. The defendant’s trial counsel also argued that, in the

                                         34
alternative, the State failed to establish that Villarreal was the person who actually

stabbed Martinez. Therefore, the high court stressed that self-defense was not the

sole, or even the main, theory by which defense counsel was arguing that the jury

should acquit Villarreal. No such multiple, inconsistent argument was made in the

instant case. Though Appellant’s trial counsel spent much of her closing argument

summarizing the testimony of all the witnesses, there can be no doubt that self-

defense was the sole issue for the jury to decide in Appellant’s case. (RRV – 106-

117). Additionally, nowhere during closing arguments was the jury informed that

they were allowed to consider the above-referenced presumptions. (RRV – 101-

129). Therefore, the arguments of the parties weigh in favor finding that the trial

court’s error egregiously harmed Appellant.

      And finally, regarding the fourth factor, the Court of Criminal Appeals in

Villarreal noted that the same jury found against the defendant on the issue of

sudden-passion at the punishment stage of the trial, which “suggests the jury very

likely would have rejected the assertion that [the defendant’s] use of deadly force

was justified.” Villarreal, 453 S.W.3d at 442. The record in the instant case

lacked any such decision from the jury that signaled that the jury would have

disregarded the presumption instruction, had the trial court given it. The entire

focus of the jury’s decision rested on whether they believed that Appellant shot

Miles in self-defense. Without the presumption-of-reasonableness instruction,

                                         35
Appellant’s only defense was significantly undermined. Just as important, the jury

was not informed that the presumption applied unless the State proved beyond a

reasonable doubt that the facts giving rise to the presumption did not exist.

      The trial court’s error in not including the above-referenced presumption

instruction was particularly harmful given the other clear errors in the jury charge,

including the lack of an application paragraph on the self-defense and a reasonable

doubt instruction on self-defense, as explained in points of error two and three.

The trial court’s errors were all focused on depriving Appellant of his only

defense. Thus, the cumulative effect of this error, along with other errors of the

trial court regarding self-defense, weighs in favor of Appellant being egregiously

harmed. See Chamberlain, 998 S.W.2d 230.

      In light of the above, and given the state of the facts and evidence, this Court

should find that Appellant was egregiously harmed by the trial court’s jury-charge

error and, thus, should vacate the Appellant’s conviction and remand the case for a

new trial.

                 APPELLANT’S FIFITH POINT OF ERROR

      The Trial Court Reversibly Erred by not Including in the Jury Charge on
Guilt/Innocence the Fail-to-Retreat Language found in Texas Penal Code
Sections 9.31(e)-(f) and 9.32(c)-(d).

      Texas Penal Code Section 9.31 states, in pertinent part:



                                         36
      (e) A person who has a right to be present at the location where the
      force is used, who has not provoked the person against whom the
      force is used, and who is not engaged in criminal activity at the time
      the force is used is not required to retreat before using force as
      described by this section.

      (f) …in determining whether an actor…reasonably believed that the
      use of force was necessary, a finder of fact may not consider whether
      the actor failed to retreat. TEX. PENAL CODE ANN. § 9.31(e)-(f).

Texas Penal Code Section 9.32 states, in pertinent part:

      (c) A person who has a right to be present at the location where the
      deadly force is used, who has not provoked the person against whom
      the deadly force is used, and who is not engaged in criminal activity at
      the time the deadly force is used is not required to retreat before using
      deadly force as described by this section.

      (d) …in determining whether an actor…reasonably believed that the
      use of deadly force was necessary, a finder of fact may not consider
      whether the actor failed to retreat. TEX. PENAL CODE ANN. § 9.32(c)-
      (d).

      In the instant case, and as outlined above, the jury was instructed on the

issue of self-defense under Penal Code Sections 9.31 and 9.32. (CR – 58-62).

However, in the jury charge on guilt/innocence the trial court failed to instruct the

jury regarding the duty to retreat. Id. Specifically, regarding the use of force in

self-defense, the trial court failed to instruct the jury that (1) if the jury found that

Appellant had the right to be present at the location where the force was used, that

Appellant had not provoked Miles or another person against whom force was used,

and that Appellant was not engaged in criminal activity at the time the force was

used, Appellant was not required to retreat before using force, and that (2) in
                                           37
determining whether Appellant reasonably believed that the use of force was

necessary, the jury may not consider whether the Appellant failed to retreat.

      Similarly, regarding the use of deadly force in self-defense, the trial court

also failed to instruct the jury that (1) if they found that Appellant had a right to be

present at the location where the deadly force was used, that Appellant had not

provoked Miles or any other person against whom deadly force was used, and that

Appellant was not engaged in criminal activity at the time the deadly force was

used, Appellant was not required to retreat before using deadly force, and that (2)

in determining whether Appellant reasonably believed that the use of deadly force

was necessary, the jury may not consider whether Appellant failed to retreat.

      As Appellant received a self-defense instruction pursuant to Sections 9.31

and 9.32 of the Texas Penal Code, and there was evidence adduced trial that

Appellant was legally on his uncle’s property at the time that he was attacked by

Miles and responded in self-defense, that Appellant was not committing any other

criminal activity at the time he was attacked by Miles and responded in self-

defense, and that Appellant did not provoke Miles, the no-duty-to-retreat law under

Sections 9.31(e)-(f) and 9.32(c)-(d) was law applicable to the case, and the trial

court had a duty to instruct the jury accordingly. (RR V – 28-78); see TEX. CODE

CRIM. PROC. ANN. art. 36.14; Oursbourn, 259 S.W.3d at 180. The trial court did

not include the above jury instruction on guilt/innocence when it was clear that

                                          38
Appellant was entitled to said charge and, therefore, the trial court erred. (CR –

58-62).

      Appellant did not object to the charge at the jury conference and therefore,

again, this Court should assess the trial court’s error for egregious harm. (RRV –

92-93); Allen, 253 S.W.3d at 264; Almanza, 686 S.W.2d at 174. Regarding the

first egregious-harm factor, the jury charge made no mention in any other section

that Appellant had no duty to retreat.        Thus, the entirety of the jury charge,

considering this error and all of the other jury charge errors explained in points of

error two, three, and four, favors a finding that Appellant was egregiously harmed.

      Regarding the second factor, the state of the evidence as a whole, self-

defense was the central, heavily-disputed issue in Appellant’s case. Furthermore,

there was specific evidence adduced at trial that raised the question of whether

Appellant had a duty to retreat. Specifically, Miles himself testified that Appellant,

while standing in the parking lot of his uncle’s pool-hall, was backing up and

telling Miles to leave while Miles approached Appellant. (RRIV – 43). At closing

arguments, Appellant’s trial counsel told the jury, “Brian could have run. He

chose not to; and he protected himself, which is allowed under Texas law.” (RRV

– 107). This specifically referenced the retreat provision, but the jury was not

given the actual law, a proper jury instruction, with which they could have legally

considered that Appellant had no duty to retreat before he was entitled to use force

                                         39
or deadly force in self-defense. Therefore, this factor should also weigh in favor of

Appellant being egregiously harmed.

      Regarding the third factor, the arguments of counsel, at no point during the

closing arguments of either side was the specific law on Appellant not having a

duty to retreat referenced. (RRV – 101-129). As mentioned above, Appellant’s

counsel told the jury that he was allowed to not run when attacked by Miles, but

she never connected that statement with the law that would have armed the jury

with knowledge that such a statement was more than merely the arguments of

counsel, that it was the law under the very self-defense provision that was at the

heart of the jury’s decision. (RRV – 107); see TEX. PENAL CODE ANN. § 9.31(e)-

(f); TEX. PENAL CODE ANN. § 9.32(c)-(d). Therefore, this factor should also weigh

in favor of Appellant being egregiously harmed.

      Additionally, the cumulative effect of this error, along with the trial court’s

other errors regarding self-defense instructions, weighs in favor of Appellant being

egregiously harmed. See Chamberlain, 998 S.W.2d at 230.

      Thus, the Court should find that Appellant was egregiously harmed by the

trial court’s jury-charge error, should vacate the Appellant’s conviction, and should

remand the case for a new trial.

                       




                                         40
                         CONCLUSION AND PRAYER

      For the foregoing reasons, Appellant respectfully submits that the evidence

was legally insufficient to convict Appellant of Aggravated Assault – Deadly

Weapon, as charged in the indictment, because there was a reasonable doubt as to

whether Appellant committed the offense in self-defense. Thus, Appellant prays

that this Court will reverse Appellant’s conviction for the charged offense and

render a judgment of acquittal in this case.

      Alternatively, Appellant respectfully submits that the trial court reversibly

erred during the guilt/innocence phase of Appellant’s trial by submitting to the jury

a charge that did not include the law applicable to the case, per Texas Penal Code

Section 2.03(d), that a reasonable doubt on the issue of self-defense required

Appellant be acquitted. Additionally, the trial court reversibly erred during the

guilt/innocence phase of Appellant’s trial by submitting to the jury a charge that

did not include an application paragraph for self-defense. Also, the trial court

reversibly erred by not including in the jury charge on guilt/innocence the law of

the presumption found in Texas Penal Code Sections 9.31(a) and 9.32(b), along

with the required language for presumptions favoring a defendant under Texas

Penal Code Section 2.05(b). And finally, the trial court reversibly erred during the

guilt/innocence phase of Appellant’s trial by submitting to the jury a charge that

did not include the law applicable to the case, per Texas Penal Code Sections

                                          41
9.31(e)-(f) and 9.32(c)- (d), regarding Appellant’s duty to retreat.     Because

Appellant was egregiously harmed by the trial court’s jury-charge errors, either

individually or cumulatively, Appellant prays that this Court will vacate

Appellant’s conviction for the alleged offense and will remand Appellant’s case to

the trial court for a new trial.



                                        Respectfully submitted,


                                            /s/ Kevin Stryker

                                            KEVIN STRYKER
                                            Attorney for Brian Johnson
                                            State Bar Number: 24037565
                                            2600 South Shore Blvd., Ste. 300
                                            League City, Texas 77573
                                            Telephone: 409-632-0212
                                            Fax: 1-888-252-3033
                                            Strykerlawfirm@gmail.com




                                       42
                     CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned

attorney certifies that there are 9,816 words in the foregoing computer-generated

document, based upon the representation provided by Microsoft Word, the word

processing program that was used to create the document, and excluding the

portions of the document exempted by Rule 9.4(i)(1).



                                            /s/ Kevin Stryker

                                            KEVIN STRYKER
                                            Attorney for Brian Johnson
                                            State Bar Number: 24037565
                                            2600 South Shore Blvd., Ste. 300
                                            League City, Texas 77573
                                            Telephone: 409-632-0212
                                            Fax: 1-888-252-3033
                                            Strykerlawfirm@gmail.com




                                       43
                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing instrument has

been served upon Allison Lindblade, appellee’s attorney of record on appeal, on

August 31, 2015, at the following e-mail address, through the electronic service

system provided by eFile.TXCourts.gov:

      Allison.lindblade@co.galveston.tx.us


                                              /s/ Kevin Stryker

                                              KEVIN STRYKER
                                              Attorney for Brian Johnson
                                              State Bar Number: 24037565
                                              2600 South Shore Blvd., Ste. 300
                                              League City, Texas 77573
                                              Telephone: 409-632-0212
                                              Fax: 1-888-252-3033
                                              Strykerlawfirm@gmail.com




                                         44
