                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00344-CR


                       ROBERT ANDREW MAYES, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 108th District Court
                                     Potter County, Texas
              Trial Court No. 65,815-E, Honorable Douglas Woodburn, Presiding

                                   November 5, 2014

                            MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant Robert Andrew Mayes was charged by indictment with assault of a

person with whom he had a dating relationship.1 The jury found him guilty, answered

yes to one of two deadly-weapon special issues, and sentenced him to five years’

confinement in prison. On appeal, appellant presents five issues. We will sustain his

first issue, finding the trial court reversibly erred by denying a requested self-defense

instruction, and reverse and remand the case for a new trial.

      1
          TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2014).
                                      Background


      Appellant and his girlfriend A.A. had an intimate relationship for some four years.

During August 2012, A.A. spent a week with appellant. On the Friday evening of that

week, appellant, A.A. and his children from former relationships stopped on the way to

appellant’s residence and bought groceries and liquor.


      At appellant’s house, they prepared a meal. They played with the children in a

portable pool and then played a video game. Over the course of the evening, appellant

and A.A. consumed alcohol. A.A. denied intoxication but said she was “a little buzzed”;

“feeling a little bit comfortable.” Sometime after midnight, appellant accused A.A. of

some conduct around his son that he considered inappropriate. A.A. left the living room

and went to appellant’s bedroom. Appellant soon followed and closed the door. They

continued arguing.


      A.A. and appellant were the only witnesses to the assaultive episode that

followed. Their versions differ markedly. According to A.A., once in the bedroom she

crawled under the bed to retrieve a cell phone. Appellant pulled her from beneath the

bed and threw her on the bed. She tried to run to the living room but he stopped her

and dragged her back to the bedroom. After tossing her over the bed he smashed her

cell phones and flash drives with a metal baseball bat. He then turned back to A.A.,

punching her in the face with his closed fist. He continued hitting her as she yelled for

help. At some point, appellant kicked A.A. on her side and back. Then he began

“smothering” her.     She lost consciousness for lack of air.           After regaining

consciousness, appellant “smothered [her] some more so [she] couldn’t breathe.” He



                                            2
hit her in the back and legs. He struck her head “several times” with the baseball bat

and A.A. again lost consciousness. When she awoke appellant was emptying her purse

on the bed beside her. A pair of cuticle scissors “rolled into [her] hand.” Appellant

climbed on top of her and again began “smothering” her. She balled the scissors in her

fist and stabbed appellant. He pushed A.A. off the bed. She saw blood but agreed it

could have been from cuts she inflicted on appellant with the scissors. Appellant then

stopped beating A.A. because he “freaked out” at being stabbed. He pushed her on the

floor where she remained because her eyes were “swollen shut” and she “couldn’t see.”

A.A. lay on the floor but later walked through the living room where one of appellant’s

children played a video game. She noticed the time was 5:00 a.m. Appellant did not

allow A.A. to go to her home because he feared “go[ing] to prison.”


      According to appellant, in the bedroom he dumped the contents of A.A.’s bag

looking for dope. He thought her behavior was irrational and he once had found a pipe

for smoking methamphetamine in her bag. He described her as “yelling and getting

irate.” He placed his hand over her mouth “to calm her down so the kids wouldn’t hear.”

He left the bedroom and on his return “it got flared up again.” At that point, A.A. “went

off on [him] and started stabbing [him].” Appellant began “defending himself” and hit

A.A. an unknown number of times. When asked on cross-examination, “Did you punch

her?” appellant responded, “I hit her. Yeah, I hit her.” Appellant acknowledged that

A.A.’s injuries, depicted in some photographs in evidence, occurred during their

altercation after she stabbed him with the scissors.


      There was evidence of prior aggressive conduct by appellant and A.A. In trial

testimony, appellant agreed he had two prior charges of domestic violence. For the

                                            3
second conviction, in 2011, appellant further acknowledged serving time in the county

jail. A.A. acknowledged she once gave appellant a black eye. According to appellant,

on another occasion she jumped on his back, trying to grab a telephone, as he

attempted to call law enforcement.       A friend of appellant testified that once, while

appellant was at his house, A.A. began beating on the locked outside door demanding

appellant “come outside and be a man.” He described her behavior on that occasion as

“very aggressive.” The complainant in appellant’s two prior family violence convictions

testified A.A. once came to appellant’s mobile home in the middle of the night, beat on

the exterior, and threatened her and appellant.


       At the charge conference appellant requested a self-defense instruction which

the trial court denied. The court submitted two deadly weapon special issues. The first

asked whether appellant used or exhibited a baseball bat and the second concerned the

use of his hands and arms. The jury found appellant guilty of the charged offense. It

answered no to the first special issue and yes to the second.             The jury assessed

punishment and the court imposed the sentence noted.


                                          Analysis


       Through his first issue, appellant argues the trial court reversibly erred by

refusing his request for a self-defense instruction in the jury charge.


       A reviewing court examines claimed jury-charge error according to the procedure

of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). The initial question for

review is whether charge error occurred. Barrios v. State, 283 S.W.3d 348, 350 (Tex.

Crim. App. 2009).


                                             4
      If the evidence raises self-defense a defendant is entitled to a proper instruction,

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

of the trial court’s assessment of the defense’s credibility. Ferrel v. State, 55 S.W.3d

586, 591 (Tex. Crim. App. 2001); Holloman v. State, 948 S.W.2d 349, 350 (Tex. App.—

Amarillo 1997, no pet.) (noting that an “accused is entitled to an affirmative instruction

on any defense issue raised by the evidence . . . irrespective of whether we or the trial

court believe the evidence feeble, strong, unimpeached, contradicted, or incredible”

(citations omitted)). This rule ensures “the jury, not the judge, will decide the relative

credibility of the evidence.” Johnson v. State, 157 S.W.3d 48, 50 (Tex. App.—Waco

2004, no pet.) (citing Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999)). For

the present analysis, the issue is not the truth or credibility of appellant’s testimony.

Rather, the issue is whether the jury should have been instructed to decide those

questions under the law applicable. Hayes v. State, 728 S.W.2d 804, 808 (Tex. Crim.

App. 1987) (op. on reh’g). Entitlement to a self-defense instruction requires that the

defendant admit the act alleged, including the culpable mental state, and produce

evidence supporting the defense. Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim.

App. 2010); Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007); Ex parte

Nailor, 149 S.W.3d 125, 132-34 (Tex. Crim. App. 2004). A person commits assault by

intentionally, knowingly, or recklessly causing bodily injury to another person.     TEX.

PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2014). The grade of the offense elevates

to a third degree felony if committed against a person whose relationship with the

defendant constitutes a “dating relationship” and the defendant was previously

convicted for family violence. TEX. PENAL CODE ANN. § 22.01(b)(2) (West Supp. 2014).



                                            5
“Bodily injury” means “physical pain, illness, or any impairment of physical condition.”

TEX. PENAL CODE ANN. § 1.07(a)(8) (West Supp. 2014). Direct evidence that a victim

suffered pain is sufficient to show bodily injury. Laster v. State, 275 S.W.3d 512, 524

(Tex. Crim. App. 2009). A dating relationship is “a relationship between individuals who

have or have had a continuing relationship of a romantic or intimate nature.” TEX. FAM.

CODE ANN. § 71.0021(b) (West 2014).


       “[A] defense is supported (or raised) by the evidence if there is some evidence,

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

support a rational inference that that element is true.” Shaw, 243 S.W.3d at 657-58

(Tex. Crim. App. 2007). To determine whether the defense finds evidentiary support, a

reviewing court views the evidence in the light most favorable to the defendant. Ferrel,

55 S.W.3d at 591. Whether a defendant’s beliefs were reasonable and justifiable and

whether a defendant used more force than necessary under the circumstances are

questions of fact for the jury’s determination. Hayes, 728 S.W.2d at 808; see Sandoval

v. State, No. 07-04-00447-CR, 2005 Tex. App. LEXIS 6653 (Tex. App.—Amarillo

August 17, 2005, pet ref’d) (mem. op., not designated for publication) (citing Hayes, 728

S.W.2d at 808).


       However, even if the evidence, when viewed in this light, raises self-defense as

an issue, a trial court does not err by refusing submission of the instruction if the

evidence conclusively establishes that one of the exceptions to self-defense listed in

Penal Code section 9.31(b) applies. See Dyson v. State, 672 S.W.2d 460, 463-65 (Tex.

Crim. App. 1984) (holding no provocation issue for the jury arose when the defendant

“expressly stated” he intended to fight the victim).

                                              6
       Relevant here, the Penal Code provides:
       (a)    Except as provided in Subsection (b), 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.
       ***
       (b)    The use of force against another is not justified:
       ***
              (4)   if the actor provoked the other’s use or attempted use of
              unlawful force, unless:
                     (A)    the actor abandons the encounter, or clearly
                     communicates to the other his intent to do so reasonably
                     believing he cannot safely abandon the encounter; and
                     (B)   the other nevertheless continues or attempts to use
                     unlawful force against the actor.
TEX. PENAL CODE ANN. § 9.31(a),(b)(4) (West 2011).


       The State contends a self-defense instruction was not required because the

evidence shows appellant initiated the confrontation with A.A. by placing his hand over

her mouth.    But evidence a defendant “initiated” a confrontation does not establish

provocation, as that term is used in section 9.31(b)(4).2




       2
         We note the State’s argument is not without support in the cases. See Lockhart
v. State, 847 S.W.2d 568, 574-75 (Tex. Crim. App. 1992) (holding trial court did not err
in omitting self-defense instruction where, inter alia, defendant initiated altercation and
evidence did not show he attempted to abandon the encounter); Taylor v. State, No. 05-
11-00386-CR, 2012 Tex. App. LEXIS 5624, at *6-8 (Tex. App.—Dallas July 13, 2012,
no pet.) (mem. op., not designated for publication) (holding when evidence showed
defendant initiated the altercation and did not abandon or attempt to abandon the
encounter, trial court did not err in refusing self-defense instruction); Vaughn v. State,
2011 Tex. App. LEXIS 5037 (Tex. App.—Austin July 1, 2011, no pet.) (mem. op., not
designated for publication) (“A self-defense instruction is inappropriate where the state
of the evidence suggests that the appellant initiated the altercation”). But see Smith v.
State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998) (finding provocation requires, inter

                                             7
       The statute codifies the common law doctrine of provocation. Smith v. State, 965

S.W.2d 509, 513 (Tex. Crim. App. 1998). “The issue of provocation is not raised merely

by prosecution evidence showing that the defendant attacked first.” See Ed Kinkeade &

S. Michael McColloch, Texas Penal Code Annotated 85 (2012-2013 ed.) (commentary

to section 9.31).     Rather, for purposes of section 9.31(b)(4), provocation requires

sufficient evidence “(1) that the [defendant] did some act or used some words which

provoked the attack on him, (2) that such act or words were reasonably calculated to

provoke the attack, and (3) that the act was done or the words were used for the

purpose and with the intent that the defendant would have a pretext for inflicting harm

upon the other.” Smith, 965 S.W.2d at 513; Id. at 514 (“the common law element of

intent is still required under the current codification”).


       Thus for the State’s argument to have merit, the evidence must be conclusive

that, inter alia, appellant placed his hand over A.A.’s mouth with the purpose and intent

of creating a pretext for assaulting her in the name of self-defense. See Smith v. State,

65 S.W.3d 332, 342 (Tex. App.—Waco 2001, no pet.) (discussing trial court’s refusal to

submit Code of Criminal Procedure article 38.23(a) instruction and explaining “[i]f the

underlying facts are undisputed, no fact issue exists, and an instruction is not required”).

Conclusive proof that appellant manifested the intent necessary to establish provocation

is not shown by this record.3



________________________
alia, proof that an act was done for the purpose and with the intent of giving the
defendant a pretext for harming the other).
       3
           We do not say whether a fact issue concerning provocation exists on this
record.

                                                8
      When the facts presented by this record are viewed in the light most favorable to

appellant, Granger, 3 S.W.3d at 38, the evidence shows in the bedroom appellant

placed his hand over A.A.’s mouth so the children would not hear their altercation. He

left the room and after his return the couple resumed arguing. During the conflict, A.A.

used a pair of cuticle scissors to strike his chest and midsection. Appellant saw he “was

bleeding out of [his] gut.” But he did not know with what A.A. struck him. To stop A.A.,

appellant struck her an unspecified number of times with his hands.


      Viewed in the light most favorable to appellant, we find the evidence raises the

issue of self-defense. The trial court abused its discretion by denying his requested

self-defense instruction. We now consider harm.


      If charge error is found, and if the defendant properly preserved the complaint,

the reviewing court must reverse the trial court’s judgment if the error caused the

defendant “any harm, regardless of degree.” Hayes, 728 S.W.2d at 808 (emphasis

omitted). “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.” Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App.

2000) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).


      The State contends appellant could not have sustained some harm because his

“guilt was overwhelming.” Indeed, appellant had to admit every element of the charged

offense, including the requisite culpable mental state, to be entitled to a self-defense

instruction. Ex parte Nailor, 149 S.W.3d at 132-34. His trial strategy depended on



                                            9
convincing the jury his assaultive conduct was justified as an act of self-defense.

Counsel’s opening statement told the jury the evidence would show appellant “honestly

and truly, felt like he had to protect himself because of what she had done to him before

and because she had those scissors in her hand.” Without the self-defense instruction,

appellant was left without the instruction that could legally justify the conduct admitted

and permit acquittal. See Cornet v. State, 417 S.W.3d 446, 450 (Tex. Crim. App. 2013)

(“In general, when there is a single offense tried before a jury, it is impossible to

determine how a jury would have weighed the credibility of the evidence on a defensive

issue, and therefore, appellate courts have reversed convictions in order to permit the

jury to decide whether it believes the defensive evidence”); see Johnson v. State, 271

S.W.3d 359, 368 (Tex. App.—Beaumont 2008) (finding trial court’s refusal to submit

self-defense instruction harmful as after defendant admitted offense jury was left with no

choice but to convict).


       The State asserts “[a]ny discernible evidence of self-defense was so feeble” that

no reasonable jury could have been persuaded to return a verdict of acquittal. The

logical thrust of this assessment of the evidence and argument is the trial court could

properly have refused the instruction as a matter of law. We do not say that such a

circumstance could not exist.    See Reich-Bacot v. State, 941 S.W.2d 382-83 (Tex.

App.—Texarkana), vacated on other grounds, 952 S.W.2d 542 (Tex. Crim. App. 1997)

(per curiam) (finding failure to submit a self-defense instruction did not produce some

harm in the defendant when there was no evidence that the victim attacked the

defendant). But in this case we have found the evidence viewed in the proper light

required submission of the requested instruction. Having considered the record of the


                                           10
trial as a whole, including the entire charge for the single offense presented to the jury,

the evidence, and the arguments of counsel, Ovalle, 13 S.W.3d at 786, we find the

court’s omission of the self-defense instruction harmed appellant.


       Appellant’s first issue is sustained.


       By his second issue, appellant argues the evidence was insufficient to support

his conviction. His argument depends, however, on a contention that because the jury

was not given the opportunity to evaluate the evidence under a charge containing a self-

defense instruction in the jury charge,4 viewing the evidence in the light most favorable

to the verdict as required under the Jackson v. Virginia standard5 is “irrational.” Rather,

appellant posits, the evidence must be evaluated “evenhandedly.” But the Court of

Criminal Appeals has instructed that the Jackson v. Virginia standard “is the only

standard that a reviewing court should apply in determining whether the evidence is

sufficient to support each element of a criminal offense that the State is required to

prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010). Appellant acknowledges in his brief that “[w]hen viewed in the light most

favorable to the verdict, the evidence is undeniably sufficient to sustain the conviction[.]”



       4
          A successful legal sufficiency challenge results in a judgment of acquittal.
Aldrich v. State, 296 S.W.3d 225, 230 (Tex. App.—Fort Worth 2009, pet. ref’d). We
ordinarily address a rendition point before a remand point. Id. But here, because
appellant predicates the legitimacy of his sufficiency challenge on the success of a
preliminary remand point, we consider the issues in the order presented.
       5
        The standard inquires whether, considering all of the evidence in the light most
favorable to the verdict, a jury was rationally justified in finding guilt beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).


                                               11
We agree, and, applying the Jackson v. Virginia standard as required, find appellant is

not entitled to acquittal based on his evidentiary sufficiency challenge.6


       Appellant also points to the fact the State “stood mute” at the charge conference

when he asked for the self-defense instruction. Quoting the Court of Criminal Appeals’

recent opinion in Gelinas v. State, 398 S.W.3d 703, 708 (Tex. Crim. App. 2013), he

argues we should not reward the State’s remaining silent and its failure to correct the

trial court’s charge error with the “windfall” of a second opportunity to convict him. But

the remedy he seeks is our review of the evidence by a standard other than that set out

in Jackson v. Virginia. Such a remedy we cannot grant. The omission of self-defense

was harmful error for which appellant receives a new trial. But no case or statute

authorizes bootstrapping this trial error into a judgment of acquittal.


       Appellant’s second issue is overruled.


       Appellant’s third and fourth issues raise contentions of additional jury charge

errors. If sustained, neither issue would entitle him to a judgment of acquittal. We have

overruled appellant’s sole rendition point and sustained his first issue requiring a new

trial. Accordingly, our review of his third and fourth issues is unnecessary for disposition

of the appeal. TEX. R. APP. P. 47.1.


       We do, however, choose to address appellant’s fifth issue, both because of the

possibility of its recurrence on retrial and because of its recurring nature in judgments in




       6
          Having reviewed the entire record, we find also that the evidence would have
been sufficient to support his conviction under a charge containing a self-defense
instruction.

                                             12
Potter County.7 By the issue, appellant challenges the requirement of the trial court’s

judgment that he repay court costs which include court-appointed attorney’s fees. In

both the written judgment signed September 23, 2013, and a judgment nunc pro tunc

signed October 25, 2013, beneath the heading, “court costs” appears the statement, “As

per attached Bill of Cost.” Both instruments also contain language ordering appellant

“to pay all fines, court costs, and restitution as indicated in attached Bill of Cost.”


       In the clerk’s record, immediately following the judgment appears a bill of costs

dated September 24, 2013.         It does not contain an entry specifying an amount of

attorney’s fees. Immediately following the judgment nunc pro tunc, however, appears a

second bill of costs dated October 28, 2013. It contains an entry in the amount of

$2,000 with the explanatory notation, “Attorney Fee(s)-Original Plea Agreement.”


       A trial court has authority to order reimbursement of the fees of court-appointed

counsel if the court determines that a defendant has financial resources enabling him to

offset, in part or in whole, the costs of the legal services provided. TEX. CODE CRIM.

PROC. ANN. art. 26.05(g) (West Supp. 2014); Mayer v. State, 274 S.W.3d 898, 901 (Tex.

App.—Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex. Crim. App. 2010). But “[a] defendant

who is determined by the court to be indigent is presumed to remain indigent for the

remainder of the proceedings in the case unless a material change in the defendant’s

financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp.

2014). “[T]he defendant’s financial resources and ability to pay are explicit critical


       7
         See, e.g., Walker v. State, No. 07-12-00416-CR, 2014 Tex. App. LEXIS 9086
(Tex. App.—Amarillo Aug. 15, 2014 n.p.h.) (mem. op., not designated for publication);
Phea v. State, No. 07-13-00044-CR, 2014 Tex. App. LEXIS 8613 (Tex. App.—Amarillo
Aug. 6, 2014, n.p.h.) (mem. op., not designated for publication).

                                              13
elements in the trial court's determination of the propriety of ordering reimbursement of

costs and fees.” Mayer, 309 S.W.3d at 556. Accordingly, the record must supply a

factual basis supporting a determination the defendant is capable of repaying the

attorney’s fees levied. Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo

2009, no pet.) (per curiam).


       Here, the record does not contain evidence of an “original plea agreement”

obligating appellant to repay court-appointed attorney’s fees.8 Nor is there evidence the

trial court reconsidered its pre-trial determination of indigency, found a material change

in appellant’s financial circumstances, or considered his ability to offset the cost of legal

services provided. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) and art. 26.05(g) (West

Supp. 2014). Indeed, the trial court appointed appellate counsel for appellant because

of appellant’s indigence and for the same reason ordered a free reporter’s record on

appeal. Under such circumstances, the inclusion of attorney’s fees in a Bill of Costs

incorporated into the judgment is contrary to law. Appellant’s fifth issue is sustained.


                                        Conclusion


       We reverse the judgment of the trial court and remand the case for a new trial.



                                                  James T. Campbell
                                                      Justice

Do not publish.



       8
        The clerk’s record also contains an “attorney fee voucher” filed September 24,
2013, and indicating the trial court approved payment to appellant’s trial counsel of
$2,000 for representing appellant through trial.


                                             14
