                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-13-00054-CR


                       ANTHONY ALONSO FLORES, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 64th District Court
                                    Castro County, Texas
            Trial Court No. A3410-1206, Honorable Robert W. Kinkaid Jr., Presiding

                                     October 13, 2014

                             MEMORANDUM OPINION
                    Before CAMPBELL and HANCOCK and PIRTLE, JJ.


         Appellant Anthony Alonso Flores appeals from his jury conviction of the offense

of aggravated assault and the resulting sentence of ten years of imprisonment. He

contends the trial court’s charge to the jury was erroneous in two respects, and

contends the errors caused him egregious harm. We will affirm the judgment of the trial

court.
                                      Background


      The evidence showed an early-morning-hour confrontation involving two groups

of men, one group gathered in front of Lori Sifuentes’s house in Dimmitt, Texas, the

other group in a vehicle driving past the house. Three men, Adrian Pena, his brother

Jerardo Pena, Jr. and Colby Perez, were in the vehicle. Appellant Flores was among

the men gathered at the house.


      Adrian Pena had seen Flores earlier in the night at a convenience store. Adrian

testified Flores tried to hit him through Adrian’s car window. Adrian, joined by others,

later looked for Flores around town but did not find him. Sometime still later, Adrian,

Perez, and Jerardo left their location again. As they drove around town, they saw

people in the street in front of Sifuentes’s house, stopped, and got out of their vehicle.

Some testimony showed that Flores had thrown something at their vehicle. When they

confronted Flores, he hit Perez. Flores then asked a man to get Flores’s knife from his

car. The State’s evidence showed Flores pursued Adrian with his knife and stabbed

him five times. Jerardo intervened in the fight between his brother and Flores. Jerardo

testified he tried to kick the knife out of Flores’s hand while Flores was on the ground

but acknowledged he instead kicked Flores in the face. He later realized he had been

stabbed twice in the back. The three re-entered their car and left. Not far away, they

were side-swiped by Flores’s car.


      Sifuentes and two other women present during the fight testified.         They told

slightly differing versions. Some testimony indicated Adrian was the initial aggressor in

his fight against Flores. Flores did not testify, and no one contested the fact that he


                                            2
stabbed Jerardo twice in the back.        The indictment in this case accused Flores of

aggravated assault of Jerardo, using a deadly weapon.


         At the close of the evidence, the court included self-defense instructions in the

charge, over the State’s objection. Flores’s points on appeal involve the language the

court employed in those instructions. The defense raised no objection to the charge at

trial.


                                           Analysis


         The purpose of the jury charge is to instruct the jury on the law that applies to the

case and to guide the jury in applying the law to the facts of the case. Delgado v. State,

235 S.W.3d 244, 249 (Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC. ANN. art.

36.14 (West 2007) (trial court shall give jury "a written charge distinctly setting forth the

law applicable to the case"). It is the function of the charge to lead the jury and to

prevent confusion. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994).

When reviewing a charge for alleged error, we must examine the charge as a whole,

considering the relationship between the abstract or definitional paragraphs and the

application paragraphs. Caldwell v. State, 971 S.W.2d 663, 666 (Tex. App.—Dallas

1998, pet. ref'd). The abstract paragraphs serve as a glossary to help the jury

understand the terms used in the application paragraphs of the jury charge. Granados

v. State, No. 14-03-00432-CR, 2004 Tex. App. LEXIS 5705 (Tex. App.—Houston [14th

Dist.] June 24, 2004, no pet.) (mem. op., not designated for publication), citing Grady v.

State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981).




                                               3
      When reviewing claims of jury-charge error, we first determine whether an error

actually exists in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App.

2009). If error exists and appellant objected to the error at trial, then we determine

whether the error caused sufficient harm to require reversal. Id.; Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985); see also Ngo v. State, 175 S.W.3d 738, 743-

44 (Tex. Crim. App. 2005). When, as here, the error was not brought to the attention of

the trial court, we will not reverse for jury-charge error unless the record shows

egregious harm. Barrios, 283 S.W.3d at 350.


      In making our determination, "the actual degree of harm must be assayed in light

of the entire jury charge, the state of the evidence, including the contested issues and

weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171;

see Garrett v. State, 159 S.W.3d 717, 719-21 (Tex. App.—Fort Worth 2005), aff'd, 220

S.W.3d 926 (Tex. Crim. App. 2007). Jury charge error causes egregious harm to the

defendant if it affects the very basis of the case, deprives the defendant of a valuable

right, or vitally affects a defensive theory. Almanza, 686 S.W.2d at 171. In analyzing

harm from a jury charge error, neither the State nor the defense has a burden to show

harm. Warner v. State, 245 S.W.3d 458, 462, 464 (Tex. Crim. App. 2008).


      In three places, the charge’s abstract instructions refer to the law regarding the

relationship between self-defense and retreating. By his first issue, Flores complains of

the first of those references. The charge contains this paragraph:


            A person is justified in using deadly force against another if he
      would be justified in using force against the other in the first place, as

                                            4
      above set out, and when he reasonably believes that such deadly force is
      immediately necessary to protect himself against the other person’s use or
      attempted use of unlawful deadly force, and if a reasonable person in
      defendant’s situation would not have retreated.

      The paragraph accurately reflects some provisions of Penal Code § 9.32(a), but

the last clause told the jury it must find a reasonable person in Flores’s situation would

not have retreated.    Flores argues, and the State concedes, the inclusion of that

language was error. The parties are correct. Under 2007 amendments, section 9.32 no

longer contains “a general duty to retreat” prior to using deadly force. TEX. PENAL CODE

ANN. § 9.32(a) (West 2013); Morales v. State, 357 S.W.3d 1, 5 (Tex. Crim. App. 2011).


      However, the State argues the record does not show the error caused Flores

egregious harm, and we agree.


      In place of the “general duty to retreat” previously contained in the self-defense

statute, the Legislature’s 2007 amendments substituted descriptions of situations in

which the actor does not have a duty to retreat before using deadly force. Morales, 357

S.W.3d at 5. Section 9.32(c) reads:


             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 in this section.

      TEX. PENAL CODE ANN. § 9.32(c).

      The court’s charge contained a paragraph reciting the language of section

9.32(c). This is the second mention of retreat in the charge. The third time retreating is

addressed in the abstract paragraphs is a sentence stating simply, “You are not to




                                            5
consider whether the actor failed to retreat.” That sentence appears at the end of the

paragraph that quotes section 9.32(c).1


       In our consideration of the charge as a whole, we must also take into account the

application paragraph on self-defense. It read:


       Now, if you find beyond a reasonable doubt that the defendant, Anthony
       Alonzo Flores, on or about the 27th day of May, 2012, in Castro County,
       Texas, did then and there intentionally, knowingly, or recklessly cause
       bodily injury to Jerardo Pena, Jr. by stabbing him with a knife and the
       defendant did then and there use or exhibit a deadly weapon, to-wit: a
       knife during the commission of said assault, but you further find from the
       evidence, or you have a reasonable doubt thereof, that at the time the
       defendant was under attack or attempted attack from Adrian Pena,
       Jerardo Pena, Jr., or both and that the defendant reasonably believed, as
       viewed from his standpoint, that such deadly force as he used, if any,
       was immediately necessary to protect himself against such attack or
       attempted attack, and so believing, he intentionally, knowingly, or
       recklessly caused bodily injury to Jerardo Pena, Jr. by stabbing him with
       a knife, then you will acquit the defendant and say by your verdict “not
       guilty.”

       The jury might well have been confused by the charge’s varying abstract

instructions regarding retreating, which ranged from the outdated instruction suggesting

a general duty to retreat to the instruction jurors likely saw as telling them flatly not to

consider whether Flores failed to retreat. But the charge’s application paragraph said

nothing about any requirement to retreat as a condition of self-defense. For acquittal

under a self-defense theory, the application paragraph required only that the jury find

Flores was under attack or attempted attack by either or both of the Pena brothers, and

that he reasonably believed from his standpoint that deadly force was immediately


       1
          The sentence apparently was predicated on section 9.32(d), which provides
that for purposes of its determination whether an actor reasonably believed that the use
of deadly force was necessary, under section 9.32(a)(2), a finder of fact may not
consider whether the actor failed to retreat.

                                             6
necessary to protect himself against their actual or attempted attack. We do not believe

the charge read as a whole supports a finding of egregious harm from the presence of

the outdated “general duty to retreat” language appended to the charge’s abstract

paragraph based on Penal Code section 9.32(a). See Bazanes v. State, 310 S.W.3d

32, 39 (Tex. App.—Fort Worth 2010, pet. ref’d), citing Cook v. State, 884 S.W.2d 485,

492 n.6 (Tex. Crim. App. 1994) (application paragraph does not cure any error in the

instruction, but does factor into harm analysis); Medina v. State, 7 S.W.3d 633, 640

(Tex. Crim. App. 1999) (where application paragraph correctly instructs the jury, error in

abstract instruction is not egregious).


       Nor do the state of the evidence, including the contested issues and weight of

probative evidence, or the argument of counsel support a conclusion that the error

regarding a duty to retreat caused Flores egregious harm. Even the State’s evidence

showed Flores was on the ground when Jerardo kicked him, and no argument of

counsel focused on any duty or opportunity on Flores’s part to retreat. There was

testimony that the females present at Sifuentes’s house urged the Pena brothers and

Perez to leave after they got out of their vehicle, and Flores’s counsel pointed to that

testimony in closing argument.2      Although the State certainly argued Flores’s knife

attack on Jerardo was not an act of self-defense, the State’s argument never mentioned

retreating.
       2
         Flores’s counsel told the jury, “The Pena boys admitted, and Colby admitted
that the girls were trying to get them to leave [the street in front of the home]. What if the
guys had just left? Would we be here today?” Later in counsel’s argument, after he
again emphasized the testimony that the females present repeatedly asked the Pena
brothers and Perez to leave, he mentioned a duty to retreat, in a somewhat confusing
sentence, stating, “If the law will tell you that he doesn't have a duty to retreat, if you
believe that there were certain things going on – well he was already at his family’s
house.” The State’s argument never mentioned retreating.

                                              7
       In sum, having considered all factors, we cannot find that the presence of the

outdated “general duty to retreat” language appended to the charge’s abstract

paragraph based on Penal Code section 9.32(a) vitally affected Flores’s theory of self-

defense. We resolve Flores’s first issue against him.


       By his second issue, Flores argues that the following language the trial court

included in the abstract paragraphs was erroneous. He contends it had the effect of

limiting the jury’s finding of self-defense by requiring it to find Flores had reason to

believe that either or both of the Pena brothers were committing or attempting to commit

murder. He points out that section 9.32(a)(2)(A) also permits use of deadly force if the

actor reasonably believes it immediately necessary to protect him against the other’s

use or attempted use of unlawful deadly force.          See TEX. PENAL CODE ANN. §

9.32(a)(2)(A) (West 2013).


       We think the contention misconstrues the language and purpose of the abstract

paragraph. The paragraph, which is based on section 9.32(b), describes circumstances

under which the actor’s belief that deadly force is immediately necessary is presumed to

be reasonable. See TEX. PENAL CODE ANN. § 9.32(b)(1)(C) (West 2013). It does not,

contrary to Flores’s contention, limit the circumstances in which the actor is justified in

using deadly force to those provided by section 9.32(a)(2)(B).


       Flores’s second issue is overruled.      Flores’s third issue asserted the court’s

charge errors caused him egregious harm. We have addressed that assertion in our

treatment of his first issue, and we need not address harm with regard to his second




                                            8
issue because we do not agree it contains the error he sees. See Barrios, 283 S.W.3d

at 350 (appellate court first determines whether error exists in the charge).


        Having overruled Flores’s appellate contentions, we affirm the judgment of the

trial court.




                                                 James T. Campbell
                                                     Justice


Do not publish.




                                             9
