                                  NO. 12-17-00267-CR

                          IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 JOSE NEFTALI ALFARO AKA JOSE                      §      APPEAL FROM THE 420TH
 BONILLA,
 APPELLANT
                                                   §      JUDICIAL DISTRICT COURT
 V.

 THE STATE OF TEXAS,                               §      NACOGDOCHES COUNTY, TEXAS
 APPELLEE

                                  MEMORANDUM OPINION
       Jose Neftali Alfaro aka Jose Bonilla appeals his conviction for aggravated assault with a
deadly weapon. Appellant raises one issue challenging the trial court’s jury instruction on self-
defense. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with aggravated assault with a deadly weapon. He
pleaded “not guilty,” and the matter proceeded to a jury trial.
       At trial, the undisputed evidence showed that Appellant told Juan Alvarez’s wife that
Alvarez and Appellant’s estranged wife were having an affair. Alvarez went to Appellant’s house
a couple of days later. Appellant attacked Alvarez with a machete and severely injured him.
       According to Alvarez, when he arrived, Appellant shook his hand and then told him that
he was going to kill him. Alvarez turned to leave and then felt a blow to his head that knocked
him to the ground. He touched his face and saw that he was bleeding. Alvarez tried to get away
but could move only one side of his body. Appellant continued hitting him until someone yelled
at him to stop.
       According to Appellant, when he opened the door, Alvarez pushed him and came inside
the house. Appellant pushed Alvarez, but Alvarez approached him again. Appellant grabbed a
machete, and Alvarez continued to approach. Appellant struck Alvarez with the machete. Alvarez
grabbed the hand holding the machete and both men exited the house. Appellant struck Alvarez
repeatedly with the machete while struggling with him for control of it. Appellant sustained no
injuries during the struggle.
        In its jury charge, the trial court included an instruction on the law regarding use of deadly
force in self-defense. Ultimately, the jury found Appellant “guilty” of aggravated assault with a
deadly weapon and assessed his punishment at imprisonment for eighteen years and a $10,000.00
fine. This appeal followed.


                                              CHARGE ERROR
        In Appellant’s sole issue, he complains that the trial court gave the jury an improper self-
defense instruction.
Standard of Review
        The review of an alleged jury charge error in a criminal trial is a two-step process. Abdnor
v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must determine
whether there was error in the jury charge. Id. Then, if there is charge error, the court must
determine whether there is sufficient harm to require reversal. Id. at 731–32. The standard for
determining whether there is sufficient harm to require reversal depends on whether the appellant
objected to the error at trial. Id. at 732.
        If the appellant objected to the error, the appellate court must reverse the trial court’s
judgment if the error “is calculated to injure the rights of the defendant.” TEX. CODE CRIM. PROC.
ANN. art. 36.19 (West 2006). This means no more than that there must be some harm to the
accused from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). An
appellant who did not raise the error at trial can prevail only if the error is so egregious and created
such harm that he has not had a fair and impartial trial. Id. “In both situations 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.” Id.
        The record must show that the defendant suffered actual harm, not merely theoretical harm.
Id. at 174. In assessing whether the trial court erred by denying a requested defensive instruction,




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an appellate court must examine the evidence offered in support of the defensive issue in the light
most favorable to the defense. Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App. 2013).
Self-Defense Instruction
        A defendant is entitled to an instruction on every defensive issue raised by the evidence,
regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even when
the trial court thinks that the testimony is not worthy of belief. Walters v. State, 247 S.W.3d 204,
209 (Tex. Crim. App. 2007). This rule is designed to ensure that the jury, not the judge, will decide
the relative credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999).
        To raise a defensive issue, the evidence must raise each element of the defense. Stefanoff
v. State, 78 S.W.3d 496, 499 (Tex. App.—Austin 2002, pet. ref’d). “If evidence is such that a
rational juror could accept it as sufficient to prove a defensive element, then it is said to ‘raise’ that
element.” Id. The defendant’s testimony alone may be sufficient to raise a defensive issue.
Williams v. State, 630 S.W.2d 640, 643 (Tex. Crim. App. 1982).
        When evidence from any source raises a defensive issue, and the defendant properly
requests a jury charge on it, the trial court must submit the issue to the jury. Muniz v. State, 851
S.W.2d 238, 254 (Tex. Crim. App. 1993). Thus, if the issue is raised by any party, refusal to
submit the requested instruction is an abuse of discretion. Darty v. State, 994 S.W.2d 215, 218
(Tex. App.—San Antonio 1999, pet. ref’d). When reviewing a trial court’s refusal to submit a
defensive instruction, we view the evidence in the light most favorable to the requested instruction.
Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
        In this case, the trial court submitted a self-defense instruction, but Appellant argues that
the instruction is improper because it omits important language contained in the statute. The statute
provides the following:


        (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[.]


TEX. PENAL CODE ANN. § 9.32 (West 2011). The trial court instructed the jury as follows:

        A person’s use of deadly force against another that would otherwise constitute the crime of
        AGGRAVATED ASSAULT is not a criminal offense if the person reasonably believed the force
        used was immediately necessary to protect the person against the other’s use or attempted use of
        unlawful deadly force.



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Appellant complains, for the first time on appeal, that the omitted phrase “when and to the degree
the actor reasonably believes the deadly force is immediately necessary” was “vital to [him] in
receiving a fair and impartial trial,” and “its omission created reversible error.” We disagree.
       In a felony jury trial, the trial court must deliver to the jury “a written charge distinctly
setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).
Here, although the jury instruction does not use the exact language—“when and to the degree”—
contained in the statute, it nonetheless sets forth the law applicable to the case. See id. The phrase
“the force used” implies both the type and degree of the force.             Furthermore, the phrase
“immediately necessary” addresses the time element, obviating the need for the word “when” in
the instruction. Thus, the instruction conveys the same meaning as the statute. We conclude that
the trial court’s jury instruction on self-defense was proper.
       Furthermore, even if the instruction was improper, the error is not reversible because it is
harmless. See Almanza, 686 S.W.2d at 171. The record shows that the parties participated in an
informal charge conference before closing arguments.             When addressing the self-defense
instruction, they discussed the fact that the state bar’s pattern jury charge on use of deadly force in
self-defense does not include the same wording as the statute. The trial court opined that, because
of grammatical considerations, it is impossible to include the phrase “when and to the degree” in
the instruction. There is no indication in the record that Appellant objected to the wording of the
instruction either during the informal charge conference or during the recorded proceedings.
According to the trial court’s statements on the record, the parties agreed during the conference
that the State could argue the omitted statutory language even though it was not included in the
charge. Nonetheless, Appellant objected when the State used a demonstrative exhibit containing
the omitted language during its closing argument. The trial court overruled the objection, and the
State told the jury that they were “required to consider when and to the degree the actor reasonably
believes the deadly force is immediately necessary.”
       Appellant contends that the omission of the statutory language in the charge caused him
actual harm because it likely confused the jurors. We find nothing in the record to support this
conclusion. Based on our review of the record, Appellant could not have been harmed by the
absence of the words “when and to the degree” in the charge. Appellant testified that he struck
Alvarez with the machete because Alvarez was attacking him. The evidence shows that Alvarez
was unarmed. He sustained cuts to his arms and six or seven cuts to his head, two or three of



                                                  4
which broke his skull and caused permanent brain damage. Witnesses saw Appellant continue to
hit Alvarez while he was on the ground and unable to move. Under these circumstances, an
instruction focusing the jury’s attention on “the degree” of deadly force required to protect
Appellant from Alvarez would likely do Appellant more harm than good. The fact that Appellant
objected to the State’s use of an exhibit containing those words further supports this conclusion.
Accordingly, because the jury instruction was not improper and any error is harmless, we overrule
Appellant’s sole issue. See Abdnor, 871 S.W.2d at 731–32.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered October 24, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 24, 2018


                                         NO. 12-17-00267-CR


                      JOSE NEFTALI ALFARO AKA JOSE BONILLA,
                                     Appellant
                                        V.
                               THE STATE OF TEXAS,
                                      Appellee


                                Appeal from the 420th District Court
                      of Nacogdoches County, Texas (Tr.Ct.No. F1522112)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
