                                                                         ACCEPTED
                                                                     06-16-00067-CR
                                                          SIXTH COURT OF APPEALS
                                                                TEXARKANA, TEXAS
                                                                8/15/2016 5:34:48 AM
                                                                    DEBBIE AUTREY
                                                                              CLERK




            SIXTH COURT OF APPEALS                  FILED IN
                                             6th COURT OF APPEALS
               TEXARKANA, TEXAS                TEXARKANA, TEXAS
                                             8/15/2016 5:34:48 AM
                   06-16-00067-CR                DEBBIE AUTREY
                                                     Clerk

   __________________________________________________


             MICHAEL ALAN HODGES,
                                Appellant
                        v.

              THE STATE OF TEXAS,
                                         Appellee


       On Appeal from the 54th District Court
           Hon. Matt Johnson Presiding
                  No. 2014-1486-C2


                APPELLANT’S BRIEF



                            Charles W. McDonald
                            SBOT NO: 13538800
                            2024 Austin Avenue
                            Waco, Texas 76701
                            Tel: (254) 752-9901
                            Fax: (254) 754-1466
                            Email:
                            ringwraith1cwm@aol.com

ORAL ARGUMENT REQUESTED
               IDENTITY OF PARTIES AND COUNSEL

Parties

Appellant               Mr. Michael Alan Hodges

Appellee                The State of Texas

Trial Counsel

For Appellant           Mr. Ronald Moody
                        204 N. 6th Street
                        Waco, Texas 76701

For Appellee            Mr. Brandon Luce
                        Assistant District Attorney

                        Mr. Abelino “Abel” Reyna,
                        Criminal District Attorney,
                        McLennan County
                        219 N. Sixth Street, Suite 200
                        Waco, Texas 76701-1363

Appellate Counsel

For Appellant           Mr. Charles W. McDonald
                        2024 Austin Avenue
                        Waco, Texas 76701

For Appellee            Mr. Abelino “Abel” Reyna,
                        Criminal District Attorney,
                        McLennan County
                        219 N. 6th St., Ste. 200
                        Waco, Texas 76701

                        Mr. Sterling A. Harmon
                        Chief, Appellate Division



Hodges, Michael Alan         i
                       TABLE OF CONTENTS

                                                             Page(s)

Identity of Parties and Counsel .………..…………………                   i

Table of Contents .…………………………………………...                         ii

Index of Authorities ……..…………………………………..                       iv

Statement of the Case …..…………………………………..                       vi

Statement of the Facts ….…………………………………..                       vi

Statement Regarding Oral Argument …….………………                    xvi

Issues Presented ……………………………………………..                           xvi

     Issue No. 1: ……………………………………………..

     The trial court committed error by failing to
     properly instruct the jury on self-defense involving
     multiple assailants and committed error in its
     application of the law of self-defense as to multiple
     assailants in both counts in the first main charge of
     the court. This caused egregious harm to Appellant.

Summary of the Argument …………………………………                          1

Argument ……..………………………………………………                                2

Standard of Review      ……………………………………....                     2

Prayer      …..…………………………………………………                             10

Certificate of Compliance   …....……………………………                   11




Hodges, Michael Alan             ii
Certificate of Service …...……………..……………………   11




Hodges, Michael Alan    iii
                       INDEX OF AUTHORITIES

Cases                                                     Page(s)

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

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
                                                           iv, 7
1985) (op'n on reh'g)…………………………………………

Brazelton v. State, 947 S.W.2d 644, 646 (Tex. App. –
                                                            3
Forth Worth 1997, no pet.) …………………………………

Brown v. State, 651 S.W.2d 782-84, (Tex. Crim. App.
                                                            5
1983) ……………………………………………………………

Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App.
                                                            7
1999)…………………………………………………………….

Frank v. State, 688 S.W.2d 825, 828 (Tex. App. –
                                                            4
Houston [14th Dist.] 1998, pet. granted)…………………...

Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App.
                                                            3
1996) ……………………………………………………………

Handy v. State, 136 Tex. Crim. 208, 126 S.W.2d 30
                                                            4
(Tex. Crim. App. 1938) ………………………………………

Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App.
                                                            3
1987) …………………………………………………………

Huizar v. State, 12 S.W.3d 479, 484-85 (Tex. Crim. App.
                                                            7
2000) …………………………………………………………..

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App.
                                                            7
1996) (citing Almanza, 686 S.W.2d at 172)……………….

Hutch, 922 S.W.2d at 171 (citing Bailey v. State, 867


Hodges, Michael Alan             iv
S.W.2d 42, 43 (Tex. Crim. App. 1993) (citing Almanza))    7

Mata v. State, 939 S.W.2d 719, 722 (Tex. Crim. App. –
Waco 1997, no pet.) ………………………………………….                     4

McCuin v. State, 505 S.W.2d 831 (Tex. Cr. App. 1974)      5

Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App.
                                                          3
1991)(op. on reh’g pg 3) ……………………………………..

Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.
                                                          3
1993)…………………………………………………………….

Ngo v. State, 175 SW. 3rd 738, 743 – 44 (Tex. Crim.
                                                          3
App. 2005) …………………………………………………….

Shafer v. State, 919 S.W.2d 885, 887 n.1 (Tex. App. –
                                                         3, 4
Fort Worth 1996, pet. ref’d) ………………………………..

Warren v. State, 565 S.W.2d 931, 933-34 (Tex. Crim.
                                                          6
App. 1978) …………………………………………………….

Rules

TEX. R. APP. PROC. 31 ………………………………………..                   6




Hodges, Michael Alan            v
                   STATEMENT OF THE CASE
      This is a criminal case where Appellant was charged in a two
count Indictment alleging aggravated assault with a deadly
weapon against Anthony Scott (AS) in count one, and aggravated
assault against Mark Cashaw (MC) in count two. Both of the
primary counts are a violation of TEX. PENAL CODE 22.02 (WEST
2013) 1 CR at 5-6 By separate notice filed prior to trial, the State
sought to enhance such charges by two prior felony convictions of
Appellant to increase the punishment range upon conviction of the
primary offense to 25-99 years or life.         TEX. PENAL CODE
12.42(D)(WEST 2013) 1 CR at 34-35
      After a jury trial, Appellant was found guilty on both counts.
4 RR at 53 Appellant elected to have the jury assess punishment.
1 CR at 24 In the presence of the jury, Appellant pled true to both
enhancement allegations alleged by the State. 5 RR at 4-7 The
jury, after receiving additional evidence and argument, sentenced
Appellant to twenty five (25) years on each count with a deadly
weapon finding. The sentence to run concurrently. 1 CR at 95-98
Notice of Appeal was filed. 1 CR at 100     After investigation, no
motion for new trial was filed. 1 CR at 101 Hence, this appeal.




                  STATEMENT OF THE FACTS
Overview:
      This is a case is primarily about credibility and who the jury


Hodges, Michael Alan              vi
believed. The State called the two complainants and a police officer

during the guilt innocence phase. Appellant testified in his own

behalf and called one fact witness. 1 R.R. at 6. Both testified

that there were multiple assailants. There were no pretrial

motions of consequence, few objections, the exhibits consisted

mainly of maps, photos of injuries to the various parties, the knife

and pen packets. There were two versions of the events that day.



Appellant’s and impartial witness version:

      On the night of the incident Appellant had taken his cat out

and was standing behind his pickup drinking cup of coffee. He was

also cleaning his finger nails with a knife he kept in the bed of the

pickup. Appellant sees at least four individuals approaching him

that he did not recognize initially. He later recognized MC during

the assault by the individuals upon Appellant. It was dark in the

area because the street lights were out. One of the four assailants

said something to Appellant. Three of them then approached him.

AS said something and then hit Appellant as MC comes back

around and a third guy also came up. All of the assailants were



Hodges, Michael Alan              vii
younger and larger than Appellant. AS was the most persistent

assailant. Appellant uses knife in a slashing motion several times

in self-defense against multiple assailants. He tried to retreat to

his home of was pursued by two or more of the assailants. When

he got to the door of his apartment he was kicked by AS and he

defensively cut both AS and MC whom he saw with a knife.

Melanie Loyd, a neighbor of Appellant's, was returning from work

that evening and saw part of the incident. She saw five men, three

black and possibly two white, walking toward Appellant. She sees

one of them jump up and kick at Appellant. She then saw

Appellant get off the ground. She attempted to talk to the police

officer that evening but he didn't take her statement then or ever.

She had seen Appellant stand by his pickup on other evenings and

on this particular evening she saw him doing the same. Also she

believed the other individuals (that approached Appellant) had

been drinking that evening and assumed they were intoxicated.

      Melanie Loyd testified that she had just gotten off work

when she saw five guys walking through from the convenience

store going towards Appellant's apartment. She then saw an



Hodges, Michael Alan             viii
individual run toward Appellant and kick in the air to try and

knock Appellant down. 3 R.R. at 160. She lives with her husband

in an apartment about ten feet from Appellant's apartment. There

were people everywhere and when the police arrived she offered to

give her statement to them. They did not take her statement then

or ever. 3 R.R. at 162.   She believed that there were three black

guys and two white guys. 3 R.R. at 171 She assumed they were

intoxicated because they were also down there talking to the

people who were having a birthday party. 3 R.R. at 182.

      Appellant testified that he 63 years old, is 5 foot 7 1/2 inches

and weighs about 186 pounds. 3 R.R. at 185 He knew MC but did

not really know AS. 3 R.R. at 186 – 187. Appellant and AS had

words a couple nights before about AS cussing at a 3-year-old

child. 3 R.R. at 188 – 189. On the night of the incident Appellant

had taken his cat out and was having a cup of coffee and cleaning

his fingernails behind his pickup truck in front of his apartment.

A group of individuals approached him that he did not first

recognize. Later on he recognized MC. He knew there were four

individuals. It was very dark because the street lights near there



Hodges, Michael Alan               ix
were out. They stopped near him and made a comment. Three of

them approached him and one stayed back a little bit. 3 R.R. at

190 – 193. All of this took place right at the back of his pickup

truck. AS said something and swung at me and clipped my neck.

Then MC came running around. I slashed at the third guy that

came up and I did make contact with him. I go around the pickup

to get into my home when I get kicked. He kept trying to kick me

when somehow MC had gotten behind me. I saw knife in MC’s

hand. I had already cut AS and then I cut MC. MC then dropped

his knife and went down.        That is when AS took off also.

Defendant’s exhibits 2 through 5 were admitted showing

Appellant's injuries from the attack. 3 R.R. at 193 – 195.

Appellant was in fear for his personal safety as these were pretty

good sized guys. MC had come up and the third guy also. 3 R.R.

at 198 – 199. Appellant tried to get away when he got to the front

door of his apartment. He got kicked straight in the kidney and

it dropped him like a rock. 3 R.R. at 200 – 201. Appellant believed

he would've been stabbed and was in danger of serious bodily

injury or death. He had no alternative but to defend himself. 3 R.R.



Hodges, Michael Alan              x
at 203 – 204. MC is 57 years old, six-foot tall and weighs 250

pounds. AS is 5 foot 9 1/2 inches tall, weighs 215 pounds and is 54

years old. At the time I was being assaulted, I believed I needed to

defend myself in any way that I could keep from being severely

injured and because at that point in time there are also more

people that hadn’t left yet. 3 R.R. at 205 – 206. In 1990 I was at

Fort Bragg getting ready for Desert Storm. 3 R.R. at 209.

   During cross-examination Appellant stated that when he was

Mirandized he requested a lawyer. He states that is the reason for

the discrepancies in the police reports because he told the

policeman very little. 3 R.R. at 214 – 215. Appellant was

questioned about the four or five people that he and Ms. Loyd saw

that evening. 3 R.R. at 222, 224, 230.        Appellant was also

questioned about how they came at him like a flying “V” of ducks.

3 R.R. at 225. Appellant stated “I'm the one that got jumped on.

I'm the one that was confronted with four people larger than me”.

And just when that incident goes down where they are all in a

position to jump on me in an instant.      You either react to the

danger or you get ate up. I'm a former Marine. I'm former Army



Hodges, Michael Alan              xi
special forces. You can't hesitate when your life is on the line. 3

R.R. at 236. I just defended myself. 3 R.R. at 240.



The State and complainants’ version:

      The complainants, Anthony Scott (AS) and Mark Cashaw

(MC) on August 26, 2013, were returning from a convenience store

and cut through another apartment complex and saw Appellant

standing behind his pickup in front of his apartment. AS goes over

to Appellant and there was apparently a verbal altercation

between AS and Appellant. Appellant overreacts and cuts AS

multiple times and MC in the back of the neck. The State suggests

this is without provocation, justification or in self-defense. 3 R.R.

at 7 – 10

      MC says he and AS went to the store for lottery tickets. 2

R.R. 18. MC saw a knife in Appellant's hand. 2 R.R. at 24. MC

described by Appellant when he turns his back on him. Appellant

and AS were still fighting. 2 R.R. at 26 – 28. MC claims Appellant

was swinging two knives. He sees Appellant moving toward AS

and AS saying he's cutting me. 2 R.R. at 26-28. State’s exhibits 3




Hodges, Michael Alan              xii
and 4 are admitted showing MC had 7-8 stitches put in the next

day (from the cut by Appellant). MC claims he still had numbness

from the cut. He claimed he got along well with Appellant and saw

him often, but that he never threatened Appellant that day or ever

before. 2 R.R. at 31 – 32. MC was not with AS the night before but

knew of some prior trouble between AS and Appellant. 2 R.R. at

37, 45. MC did not see AS kick Appellant or Appellant try to flee.

2 R.R. at 49 – 51.

      AS testified that he lived at the apartments where MC was

the manager in August of 2013. These apartments were near the

apartment complex where Appellant lived. AS had known MC for

20 to 30 years. It was also brought out that AS had been convicted

of two felonies eight days prior to the commencement of this trial.

3 R.R. at 63 – 67. AS says Appellant talked smart to him two days

before the accident. 3 R.R. at 74 – 75. The day before the incident

AS and Appellant had words between them, principally name-

calling. On this occasion AS was by himself. 3 R.R. at 74 – 76. On

the day of the incident, Appellant and AS had words again on the

way back from the store where AS had been playing his lotto



Hodges, Michael Alan             xiii
numbers. This occurred while Appellant was at the back of his

truck and AS could see his hands. 3 R.R. at 78 – 79. AS says

“what’s your f-ing problem?” to Appellant, then turns and walked

away. Appellant then hit and stabbed AS. Appellant first hit AS

and when AS turned Appellant stabbed him. 3 R.R. at 80 – 83. AS

called out to MC (who at the time was several feet away) that

Appellant had a knife. MC then came over and got cut and then

AS realized he too was bleeding. AS sees Appellant and ran for it.

3 R.R. at 84 – 87. AS never threatened or planned with MC to

gang up on Appellant. AS talked to the police officer prior to being

taken to the hospital because of his cuts. 3 R.R. at 88 – 90    AS

denied that he had a run in with Appellant because Appellant told

him to leave a child alone the day before. 3 R.R. at 100 AS stated

he got his hand cut when he was trying to grab the Appellant's

arm to keep him from cutting him. 3 R.R. at 112 – 114 State’s

exhibit 5 – 9 show the cuts and injuries sustained by AS.

      Joseph Melendez, a police officer got a 911 disturbance call

in progress with a weapon. 3 R.R. at 119        When he arrived,

Melendez says MC told him that the person in Apartment 1 B had



Hodges, Michael Alan              xiv
stabbed him (Appellant's apartment). 3 R.R. at 116       Melendez

went to Appellant's apartment and Mirandized Appellant before

questioning him. Appellant said he had cut two people but that it

was in self-defense. Appellant said he felt threatened. The officer

told him he could not use the weapon. Appellant admitted using

the knife. Appellant showed Melendez were the knife was. 3 R.R.

at 121 – 126. The knife, State’s exhibit 10, was admitted and

shown to Melendez. He opened the knife and stated that the knife

had dried blood and meat on it. 3 R.R. at 126 – 128. Melendez

stated that Appellant never mentioned anyone attacking him,

kicking him or having any weapons. He had no visible injuries nor

did he ask for any medical attention. 3 R.R. at 128 – 129 (but see

Defense exhibits 2-5)   Melendez said Appellant only said it was

self-defense because it was two against one in a fight. No weapons

found on the other two. 3 R.R. at 130. Melendez said there were

no other witnesses that came forward that night. 3 R.R. 132. He

further stated that the knife that was used by Appellant was a

deadly weapon that could kill or be used to kill someone. He also

stated that the cut on AS could have been a life-threatening cut. 3



Hodges, Michael Alan             xv
R.R. at 133-136. Melendez on cross stated that Appellant told him

that two individuals were walking past him and that he got into

an altercation with one of them and then felt threatened by the

two males attacking him. Also that he was defending himself

against this attack and that he believed it was self-defense. 3 R.R.

at 138 – 143. He also stated fists could be deadly weapons. MC

told Melendez he intervened and tried to break up the fight, he got

cut but did not know it at the time. 3 R.R. at 149.



       STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument because this is a

somewhat novel area of the law and discourse between the court

and counsel would aid in the outcome.



                       ISSUES PRESENTED


1:     The trial court committed error by failing to properly
instruct the jury on self-defense involving multiple assailants and
committed error in its application of the law of self-defense as to
multiple assailants in both counts in the first main charge of the
court. This caused egregious harm to Appellant.


Hodges, Michael Alan              xvi
                SUMMARY OF THE ARGUMENT

      The court's first main charge to the jury was too restrictive

and limited Appellant's right of self-defense to an unlawful attack

or threatened attack, real or apparent, from Anthony Scott alone,

in count 1 of the indictment, and to an unlawful attack or

threatened attack, real or apparent, from Mark Cashaw alone, in

count 2 of the indictment. Appellant was entitled to a charge that

he had the right to defend himself against a hostile demonstration

or threatened attack by Scott and Cashaw or either of them or by

multiple assailants known or unknown in each count of the

indictment. This error occurred in both the instruction and the

application of the law to the facts paragraphs as to each count.

      Although there was no objection to the charge, there was

ample evidence produced by both Appellant and the only neutral

witness of multiple assailants being present that night. The

presence and participation of the multiple assailants was

vigorously contested by both sides from opening statements until

closing arguments. The jury sent back 6 notes during deliberations

one of which indicated they were deadlocked. The result of these



Hodges, Michael Alan              1
errors is egregious harm to Appellant as it altered or destroyed the

very basis of his defense, namely, that he was attacked by multiple

assailants that were bigger and younger. Appellant’s defensive

theory of self-defense was significantly affected by these errors

and as a result denied Appellant a fair and impartial trial.



                           ARGUMENT

Issue presented: The trial court committed error by failing to

properly instruct the jury on self-defense involving multiple

assailants and committed error in its application of the law of self-

defense as to multiple assailants in both counts in the first main

charge of the court. This caused egregious harm to Appellant.



                       STANDARD OF REVIEW


      Appellate review of error in a jury charge involves a two-step

process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App.

1994). First, the appellate court must determine whether error

occurred. If the court finds error then, it must then evaluate

whether sufficient harm resulted from the error to require


Hodges, Michael Alan              2
reversal. Id at 731 – 32.   Second, if trial counsel failed to object

to the charge error appellant must show egregious harm to prevail

on appeal. Ngo v. State, 175 SW. 3rd 738, 743 – 44 (Tex. Crim.

App. 2005)

      If a defendant produces evidence raising each element of a

requested defensive instruction, he is entitled to the instruction

regardless of the source and strength of the evidence. Hamel v.

State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996) (recognizing

that “an accused has the right to an instruction on any defensive

issue raised by the evidence, whether that evidence is weak or

strong, unimpeached or contradicted, and regardless of what the

trial court may or may not think about the credibility of the

defense). Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App.

1991) (op. on reh’g); Brazelton v. State, 947 S.W.2d 644, 646 (Tex.

App. – Forth Worth 1997, no pet.) The credibility of the evidence

presented regarding the defense is immaterial in determining

whether the instruction is required. Muniz v. State, 851 S.W.2d

238, 254 (Tex. Crim. App. 1993); Miller, 815 S.W.2d at 585; Shafer

v. State, 919 S.W.2d 885, 887 n.1 (Tex. App. – Fort Worth 1996,



Hodges, Michael Alan              3
pet. ref’d) A defendant’s testimony alone is sufficient to raise a

defensive issue requiring an instruction in the jury charge. Hayes

v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987); Warren v.

State, 565 S.W.2d 931, 933-34 (Tex. Crim. App. 1978) We review

the evidence offered in support of a defensive issue in the light

most favorable to the defense. Shafer, 919 S.W.2d at 887 n.1

      A defendant is entitled to a charge on the right of self-defense

against multiple assailants if there is evidence, viewed from the

accused’s standpoint that he was in danger of an unlawful attack

or a threatened attack at the hands of more than on assailant.

Frank v. State, 688 S.W.2d 825, 828 (Tex. App. – Houston [14th

Dist.] 1998, pet. granted); Mata v. State, 939 S.W.2d 719, 722 (Tex.

Crim. App. – Waco 1997, no pet.)

      It has been held that when a defendant testifies that he was

attacked by the complainant and other persons, he is entitled to

an instruction on the right to defend himself against a joint attack,

and it is reversible error to charge only on his right to defend

himself against an attack by the complainant. Handy v. State, 136

Tex. Crim. 208, 126 S.W.2d 30 (Tex. Crim. App. 1938) Where there



Hodges, Michael Alan               4
is evidence that more than one person attacked the defendant, the

charge is too restrictive if it confines the right of self-defense to the

acts of the complainant. McCuin v. State, 505 S.W.2d 831 (Tex.

Cr. App. 1974) Where the evidence that the defendant was in

danger of unlawful attack at the hands of more than one assailant,

the court should instruct the jury that he had the right to defend

himself against either or both of them. McCuin v. State, supra, at

832. Brown v. State, 651 S.W.2d 782-84, (Tex. Crim. App. 1983)

      Melanie Loyd, the only neutral witness, saw five guys going

towards Appellant's apartment. She believed that there were

three black guys and two white guys. She assumed they were

intoxicated.


      Appellant testified he was first approached by a group of

individuals that he didn't recognize. Three of them approached

him and one stayed back a little bit. After AS hit him, then MC

came running around. Appellant slashed at the third guy that came

up and made contact with him. Appellant was injured as

demonstrated by Defense exhibits 2 through 5. Appellant was in

fear for his personal safety because these were good sized guys.


Hodges, Michael Alan                 5
 These included the listed complainants and the third guy. At least

 one of them had a knife. He was worried about being stabbed and

 knew he was in danger of serious bodily injury or death. He

 believes this because of the number of assailants, their size and

 relative youth.

       There is no question, based on the evidence and testimony

 adduced from Appellant and Mrs. Loyd, that Appellant was

 entitled to an instruction on multiple assailants to be put in the

 first main charge to the jury. It is also readily apparent that he

 was entitled to have the law on self-defense against multiple

 assailants properly applied to the facts of his case in both counts.

 These issues were amply raised and for the trial court not put

 them in the charge as suggested constituted error.




Harm analysis

     There were no objections to the charge.          Normally the

reviewing court will not review an unpreserved complaint. TEX. R.

APP. PROC. 31. However, an unpreserved complaint about a charge

error in a criminal case is an error which must be reviewed for


 Hodges, Michael Alan              6
“egregious harm.” Huizar v. State, 12 S.W.3d 479, 484-85 (Tex.

Crim. App. 2000) (if the instruction is omitted, do an Almanza

review); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) (op'n on reh'g). The harm suffered must be actual and not

theoretical. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App.

1999). Errors that result in egregious harm are those which affect

“the very basis of the case,” deprive the defendant of a “valuable

right,” or “vitally affect a defensive theory.” Hutch v. State, 922

S.W.2d 166, 171 (Tex. Crim. App. 1996) (citing Almanza, 686

S.W.2d at 172). In deciding whether there is egregious harm, the

reviewing court looks to (1) the charge itself, (2) the state of the

evidence, including what issues were contested, and the weight of

the probative evidence, (3) the arguments of counsel, and (4) any

other relevant information revealed by the record of the trial as a

whole. Hutch, 922 S.W.2d at 171 (citing Bailey v. State, 867 S.W.2d

42, 43 (Tex. Crim. App. 1993) (citing Almanza)).

    a)     The charge itself:

         The first main charge of the court is set forth at 1 CR at 46 –

 64.     Both counts of the charge do not contain the necessary


 Hodges, Michael Alan                 7
multiple assailant language in either the instruction or the

application paragraphs.

b) The state of the evidence, including what issues were

contested, and the weight of the probative evidence:

      The most hotly contested issues were how many assailants

attacked Appellant, who attacked whom, the types of injuries

suffered by the parties and of course self-defense. The discussion

concerned multiple assailants, that AS and MC were part of a

larger group, that this group were the aggressors, that Appellant

was injured, and that one of the complainants was armed and the

other kicked Appellant. This discussion began with the opening

statements. 3 R.R. at 12. This continued throughout the trial.

Multiple assailants, besides the complainants, were frequently

brought up in either or both direct and cross-examination of every

witness. The defense exhibits indicate Appellant was injured as

does the testimony of the only neutral witness. This being the

same witness that saw multiple assailants approach Appellant.

The complainants’ testimony is inconsistent. Counsel would

suggest that the weight of the evidence favors Appellant and



Hodges, Michael Alan             8
definitely demonstrates significant harm. The complained of

errors vitally affected Appellant's defense.

   c) The arguments of counsel:

      Multiple assailants were mentioned four times are more in

the State's opening summation. 4 R.R. at 20, 21, 23, 24. Multiple

assailants were mentioned by the defense in its summation at

least 3 times. 4 R.R. at 30, 33 – 34. Multiple assailants were

mentioned at least 4 times in the State’s final summation along

with the argument that Mrs. Loyd saw nothing. 4 R.R. at 38, 41,

42, 43. Appellant being attacked by multiple larger and younger

assailants was the crux of Appellant's self-defense theory. Both

the State and the defense spent a great deal of their respective

arguments promoting or attacking this theory.

d) Any other relevant information revealed by the trial record as a

whole:

      The jury during deliberations sent back 6 notes that included

a request for the rereading of MC's testimony, that they were

deadlocked or hung in a request for the definition of a threat. 4

R.R. at 44, 50, 51 respectively. One or more jurors for quite some



Hodges, Michael Alan              9
time did not believe the complainants’ version of events hence the

deadlock. Counsel would also suggest that one or more jurors

believed the threat of multiple assailants alone or at least believed

Appellant's and Mrs. Loyd's version of events justified Appellant’s

actions. In conclusion counsel suggests that the complained of

errors were actual not theoretical, caused egregious harm and this

court should so hold.



                             PRAYER

      Appellant requests that the convictions in each count be

reversed and the cause remanded for further proceedings, and

accordingly, appellant so prays.




                                   Respectfully submitted,

                                   /s/ Charles W. McDonald
                                   Charles W. McDonald
                                   Texas Bar No. 13538800
                                   2024 Austin Avenue
                                   Waco, Texas 76701
                                   Tel: (254) 752-9901
                                   Fax: (254) 754-1466
                                   Attorney for Appellant,


Hodges, Michael Alan               10
                       Certificate of Compliance
     The undersigned hereby certifies, pursuant to TEX. R. APP.
PROC. 9.4(i)(3), that this computer-generated document
contains 1870 words.
                                          /s/ Charles W. McDonald
                                            Charles W. McDonald



                         Certificate of Service


           The undersigned hereby certifies that a true and
correct copy of this brief was served electronically on the 15th
day of August, 2016 to: counsel for the State, Sterling
Harmon, sterling.harmon@co.mclennan.tx.us.


                                         /s/ Charles W. McDonald
                                             Charles W. McDonald




Hodges, Michael Alan                11
