                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00480-CR


KEVIN ROY BECKSTRAND A/K/A                                          APPELLANT
KEVIN RAY BECKSTRAND

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1248503D
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                        MEMORANDUM OPINION1

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      Appellant Kevin Roy Beckstrand a/k/a Kevin Ray Beckstrand appeals his

conviction for burglary of a habitation, for which he received a sentence of

confinement of three years in the Institutional Division of the Texas Department

of Criminal Justice. In his first of five issues, Appellant complains of the trial



      1
       See Tex. R. App. P. 47.4.
court’s failure to charge the jury on self-defense. We sustain his first issue,

reverse the trial court’s judgment, and remand the cause for a new trial.

                                    Background

      The State alleged that Appellant, on or about July 26, 2011, intentionally or

knowingly, without the effective consent of Erin Beckstrand, the owner thereof,

entered a habitation with the intent to commit an assault. In a second paragraph,

the State alleged that Appellant, on or about July 26, 2011, intentionally or

knowingly, without the effective consent of Erin Beckstrand, the owner thereof,

entered a habitation and attempted to commit or committed an assault.2

      Before a jury, Appellant pled not guilty. After hearing the evidence, the jury

found Appellant guilty as charged.      The jury thereafter assessed Appellant’s

punishment at confinement for three years in the Institutional Division of the

Texas Department of Criminal Justice.

                                  The Evidence

      Appellant and Erin were married on April 8, 2006. They separated, and by

late October 2010 Appellant had moved out of the family home. The divorce was

not final until August 17, 2011, but they had entered into a mediated settlement

agreement about three weeks before the events in question, pursuant to which

Erin testified that she had possession of the house and all of Appellant’s

      2
       The State alleged alternate ways to commit the same offense of burglary
of a habitation. Tex. Penal Code Ann. § 30.02(a)(1) (enters with intent to commit
an assault), (3) (enters and commits or attempts to commit an assault) (West
2011).


                                         2
possessions had been removed. She said Appellant did not have keys to the

house. Appellant acknowledged that by July 26, 2011, Erin had a greater right of

possession.

      The parties had agreed and Erin acknowledged that Appellant had

possession of the couple’s two children for summer visitation for two weeks

starting on July 24 or 25, 2011, until August 8, 2011. Appellant had picked the

children up from Erin’s home on a Sunday afternoon.             Erin acknowledged

Appellant had possession of the children for his two-week summer visitation on

July 26. Appellant had scheduled a camping trip to Colorado and Utah with the

two children, his mother, and his father for July 27, 2011. Appellant testified he

purchased a gun on that Monday afternoon, which would have been July 25,

2011, because he planned on taking the children hiking and wanted the gun for

protection against bears and moose. Appellant said he had pepper spray as well

because he thought it would be strong enough to repel a bear. Appellant said he

also borrowed a pickup truck because he did not think his regular car was a good

vehicle for their planned trip.

Appellant Discovers His Children are Missing and Describes His Efforts to
                               Find Them

      On July 26, 2011, which was a Tuesday, Appellant was unexpectedly

called to the office for a meeting, so he arranged for Kyli Morgan, Erin’s sister, to

come to his residence and attempt to take the children to a dental appointment

that he had cancelled but which he hoped was still available. When Appellant



                                         3
returned home around 10:00 a.m., Kyli and the children were not there, and

Appellant’s attempts to contact Kyli and Erin were unsuccessful.

      After he returned from lunch around 1:00 p.m., Appellant received a text

from Kyli informing him that Erin had instructed her not to return the children to

him, so he called the police sometime between 1:00 and 2:00 p.m. Two officers

came to Appellant’s residence, and one of them telephoned Erin.              Erin

acknowledged a police officer called her around 1:30 p.m. Appellant expected

the children to be returned to him after this. They were not returned.

      Over the remainder of the afternoon, Appellant called Erin, her two sisters,

her brothers, her mother, and her father about every hour until around 5:00 p.m.,

when he went to Erin’s home, knocked, and rang the doorbell.             No one

answered, so he returned to his own residence for about an hour. Appellant then

went to Erin’s house a second time, but no one was there, so he went to the

home of Noah Morgan, Erin’s brother, which was only a couple of blocks away.

When Appellant saw no cars in the driveway, he waited and again tried to call

Erin, Noah, Kylie, and Erin’s mother with no success.

      Appellant then drove to Kyli’s home in Denton. He acknowledged buying

ammunition for his gun on the way to Denton. When Appellant determined no

one was at Kyli’s residence, he drove to Erin’s mother’s home in Plano, but he

again determined no one was there. By that time, it was between 8:00 and 9:00

p.m. Appellant said he then stopped at a church to pray and thereafter drove to

Grapevine to see his brother, whom he hoped would help calm him down. While


                                         4
in Grapevine, Appellant called the police again, and he met with another officer.

When asked why he called the police, Appellant answered:

      Because at that point I—like I said, I was beginning to think the worst
      that my—my children could be floating in some bathtub, they could
      be on a plane to Brazil or to Egypt or—you know, they had been
      missing at this point for over 12 hours.

By the time the officer left, Appellant said it was close to 10:00 p.m.

      Appellant drove to Erin’s home a third time and arrived around 10:30 p.m.

The house appeared to be dark, and the blinds were drawn, but the lamp next to

Erin’s bed was on. He rang the doorbell two to four times and knocked on the

door intermittently as well. Appellant testified, “Initially I thought I saw when I first

was walking up to that—to the house, the—there is—above the front door there’s

a window with blinds, and I thought I saw a finger peek through.” He thought he

saw a movement in the blinds consistent with someone looking at him standing

at the door. He then went to see if the lights were on in the children’s upstairs

bedrooms and determined they were not.

      By this point, according to Appellant, he was in the backyard. “I—I was

feeling that I really needed to know where my children were. I felt like I had no

other choice. I had like visions in my—in my head of my children being hurt, like

I mentioned, or maybe they were drowned in a bathtub or—or something like

that. So I—I really—I thought, you know, I legally own this home.” Appellant

picked up a landscaping rock in the backyard and threw it through the back door

window. He reached through the door, unlocked it, entered the kitchen, turned



                                           5
the lights on, and looked around. Appellant said he did not see anyone and did

not say a word but went to the garage where he saw Erin’s car, which meant to

him either that she and the children were in the house or that she had gone with

her sister in her sister’s car.

                                    Erin’s Testimony

       Erin testified she was in the house taking a shower when she heard a loud

banging. She denied hearing anyone ring the doorbell or knock at the door.

After getting out of the shower, she heard movement downstairs, so she

telephoned her brother. After calling her brother, Erin heard Appellant yelling

that he was going to kill her and that he had a gun. Frightened, Erin hid in a

closet and called the police. Erin denied giving Appellant permission to enter the

house that night.

       Erin said the children were with her sister that night. Erin admitted having

told her sister, Kyli, not to return the children to Appellant that day.      She

acknowledged Appellant had called and sent her multiple texts that day and that

she never responded to them. She admitted that he was looking for the children.

She said she knew that Appellant had the right of possession of the children that

day and that Appellant was upset with her. She never spoke with Appellant that

day.    Even after a police officer called her around 1:30 p.m., she never

responded to Appellant.           She said she was sufficiently concerned about

Appellant that she asked her brother, Noah, to escort her home that night.




                                           6
                                   Noah’s Testimony

        Noah, Erin’s brother, confirmed he had spoken to Erin earlier on July 26,

2011. She had called and told him that Appellant had left multiple threatening

messages on her voicemail and had repeatedly tried to contact her. Based upon

what she told him, Noah was concerned about her and offered for her to stay

with him that night, but she declined. He escorted her home at about 9:00 p.m.,

after a dinner that evening with her colleagues, to make sure her house was

safe.

        Noah lived about a half-mile from Erin. Around 10:00 or 10:30 p.m., she

called him, panicked, excited, and scared, and asked him to come quickly, so he

ran to his car and drove to her house as quickly as he could. In Erin’s driveway

Noah saw a Ford F-150 that he did not recognize.

        As he opened his car door to step out, the garage door began to lift, and

once it was fully opened, Noah saw Appellant. He knew Appellant had not lived

in the house with Erin for about a year. Noah approached the garage, asked

Appellant why he was there, and suggested to Appellant it was best if he left.

Noah urged Appellant to leave and warned Appellant the police were on their

way, but Appellant responded by yelling and cursing.         Noah related what

happened next: “I entered into the—the garage, you know, I again was urging

him to leave, cops were coming. And I actually reached out to—I still had my

keys in one hand, and I asked—you know, I think I grabbed one of his arms and




                                        7
said, [‘]Come on, we need to leave, cops are coming, get out of here.[’] And

that’s where he attacked me.” Appellant hit him in the face with a closed fist.

         Noah tried to tackle Appellant, but Appellant fell on top of him and

continued to hit him. Eventually Appellant let Noah up and said he was leaving.

Instead of leaving, Appellant hovered over Noah while Noah was still on his back,

and Noah thought Appellant intended to attack him again. Appellant kicked him

in the head but then backed up enough to allow Noah to stand up.              Noah

grabbed two bricks, one in each hand, threw one, and charged Appellant with the

other.    Appellant dodged the brick Noah threw, but when he tried to strike

Appellant with the second one, he managed to graze Appellant in the head.

Appellant then tackled him, and they ended up pinned between Erin’s car and the

house. At some point Appellant got up and walked away, and Noah ran into the

house, locked the door, looked for his sister, and called 9-1-1. The police arrived

fairly quickly.    Noah refused to go to the hospital; he acknowledged an

ambulance took Appellant to the hospital. Noah said that his niece and nephew

were not in the house and that he had no idea where they were.

                      Appellant’s Version of the Altercation

         Appellant described his encounter with Noah differently.     According to

Appellant, he heard a car pull up, so he hit the garage door button to open the

garage door. He saw Noah coming toward him. Noah asked him what he was

doing. Appellant responded several times by asking where his children were.

“He approached me very quickly. He grabbed me, slamming me up the—up


                                         8
against the side of my wife’s car, and he jammed his forearm into my throat.”

Noah had him pinned up against the car, and Appellant again asked where his

children were.   Appellant said he felt pain in his throat.     Appellant said he

grabbed the arm that was against his neck, pulled it back, and then began

punching Noah’s head and face with both his hands. Appellant said he was

defending himself. He thought he caught Noah by surprise, and he repeatedly

punched Noah’s face and head until Noah went to the ground.

      Appellant stood over Noah with one foot on his chest and repeatedly asked

where the children were and accused Erin and her family of kidnapping his

children. Appellant stepped back and allowed Noah to get up, at which point

Noah grabbed a brick and threw it at Appellant. Appellant dodged it. Noah

picked up another brick, swung it at Appellant, and managed to skim the side of

his head, causing a laceration.   Appellant said he was “stunned,” and Noah

managed to get in several blows. Appellant said he pushed Noah over the hood

of his wife’s car, and they both got caught in the tight space between his wife’s

car and the wall. Appellant managed to retreat and leave the garage, after which

he went to a neighbor’s home and asked the neighbor to call the police. The

police came, and an ambulance took Appellant to the hospital.

                               Other Testimony

      Officer Joshua Russell testified that he responded to the scene where the

altercation had occurred that night and that he searched the truck parked in the

driveway for a gun which Appellant had told the officers on the scene was in the


                                       9
truck. Officer Russell found the gun, an Ultra Star .9 millimeter handgun, either

in the glove compartment or in the center console.       Ammunition was in the

magazine. He also found pepper spray in the holster. He did not believe a round

of ammunition was chambered.

      Appellant denied going into Erin’s home with the intention to assault

anyone and denied telling her, “I’ll kill you” and “I have a gun.”      Appellant

maintained he did not say a word after entering the house. Appellant also denied

assaulting Noah.    Appellant testified Noah assaulted him, and he defended

himself. Appellant said he told the police a gun was in the truck. Appellant

acknowledged Erin and her neighbors would not have recognized the pickup

because he borrowed it.

      On cross-examination, Appellant acknowledged he had previously testified

that it was not normally in his character to do something like what he did that

night, but he said he was referring to throwing a rock through a window. When

asked if that was totally accurate, Appellant maintained it was. On further cross-

examination after the court ruled that Appellant had opened the door by his

testimony about his character, Appellant admitted being arrested in Denton

County in October 2010 for interfering with public duties, evading arrest, and

disorderly conduct, that two of the charges were still pending, and that he had

spent twenty-seven days in jail in October 2010.

      While at the hospital after the fight with Noah, Appellant gave a written

statement to the police. Appellant wrote that he had vacation custody of his


                                       10
children from July 26th until August 8th and that his wife’s family was hiding the

children from him. Appellant wrote that he went to his wife’s residence, rang the

doorbell twice, and threw rocks at the back door five times until he gained entry.

Once inside, he went to the garage, found his wife’s car there, and heard a car

pull up, which he hoped was the police. It was, instead, Noah, who approached

Appellant and asked Appellant what he was doing. Appellant then wrote: “He

put his hands on me and I proceeded to beat the shit out of him.” Appellant

wrote that after he let Noah up, Noah picked up two bricks and threw them at

him. Appellant also wrote that the second brick had skinned the back of his

head.

        Regarding Appellant’s written statement, Appellant testified that was

actually the second statement he wrote. Appellant said his first statement had

been far more detailed, but he was given another piece of paper and was told to

rewrite his statement. Appellant said that after thinking about it, he decided he

did not want to hurt Erin, so he left out the part about her kidnapping the children

and wrote that he did not want to press charges against her or Noah.

        The State also admitted portions of an email Appellant sent to Erin on

August 19, 2011. The admitted portions provided:

        [We know that your family was also behind more coneiving [sic]]
        deceitfulness and testimony to lawenforcement [sic] to try and get
        more serious charges filed against me.3 You have tried to destroy
        3
       The portion actually provided to the jury begins in midsentence with
“deceitfulness . . . .” We provide the deleted portion of the sentence just for our
own clarity. We can only assume time-restraints explain the curious editing.


                                        11
      and discredit the wrong man and family. You should just consider
      that you and your famil[y’s] intentions an[d] actions are pretty much
      under a federal investigation and this is no exaggeration. Be happy
      that you married a kind and loving man! I know I did violate a civil
      court order and even the fact that you did the same by hiding my
      kids from me was no excuse for my actions and I sincerely
      apologize. I had no idea you were home and I’m sorry if I alarmed
      you.

      I would also appreciate [it if] you g[a]ve my sincere [and] kind
      regards to Noah. I hope he is okay and no lasting damage has
      come from our altercation! Please tell him I love him and am sorry
      for what went down between us. If I didn’t feel this way about him I
      would seriously consider pursuing attempted murder charges
      against him. I had him completely subdued and when I relented and
      let him up, he attempted to smash my brains in not once but twice
      with bricks from my own home. He was just an in[n]ocent bystander
      of your dumb . . . stupidity and my training in self[-]defense!

      I was certainly wrong for breaking into our home to reclaim property
      that rightly belongs to MY FAMILY! I will give you one more chance
      to do the right thing by my family[,] our children[,] and me. Your
      kindness and cooperation would really be appreciated. Try to be a
      decent and respectable person and do the right thing! I wish you
      knew the reputation you have with some parents at Woodland
      Springs Elem[entary]. You would be embarrassed and ashamed of
      yourself as I am that I once called you[] my wife and friend!


      Regarding his email, Appellant denied at trial that he thought he was

violating any court order. At the time of the events, he said, they had signed the

mediated settlement agreement that provided she would get the house when the

divorce was final and he would sign the deed of trust over to her, but the email

was written a month later after reflection and after talking with his divorce lawyer.

When asked by defense counsel why he wrote the part about not knowing Erin

was in the house and being sorry he alarmed her, Appellant responded that at



                                         12
the time he was frantic and worried about his children but, in retrospect, he felt

bad about scaring her and that it was not something normally in his character to

act like that. Regarding his statement that Noah was an innocent bystander,

Appellant said that he thought Noah had nothing to do with the abduction of his

children.

      First Issue: Alleged Charge Error on Necessity and Self-Defense

      In his first issue, Appellant contends the trial court erred when it denied his

request to instruct the jury on the defenses of necessity and self-defense.

Appellant contends these defenses were raised by the evidence and the error

was harmful. Appellant requested the jury be instructed on both necessity and

self-defense.

                                    Generally

      The court of criminal appeals has made it clear that a defendant has the

burden of production of some evidence on each element of a justification

defense, and it held that a defense is raised “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 v. State, 243 S.W.3d

647, 657–58 (Tex. Crim. App. 2007) (emphasis added), cert. denied, 553 U.S.

1059 (2008). The trial court neither weighs the evidence nor determines the

credibility of the witnesses, including the credibility of the defendant, but must

assume the evidence supporting the defense is credible. Shaw v. State, 181




                                        13
S.W.3d 450, 452 (Tex. App.—Waco 2005), aff’d, 243 S.W.3d at 660, cert.

denied, 553 U.S. at 1059.

      On appeal, we review whether the evidence raises a defense of

justification de novo as a question of law. Shaw, 243 S.W.3d at 658; Shaw, 181

S.W.3d at 452. We do not apply the usual rule of appellate deference to the trial

court’s ruling at this stage or at the stage of jury submission. Bufkin v. State, 207

S.W.3d 779, 782 (Tex. Crim. App. 2006); Johnson v. State, 271 S.W.3d 359, 367

(Tex. App.—Beaumont 2008, pet. ref’d). When reviewing de novo, we afford no

deference to the trial court’s determination and consider the matter as if we were

the court of first instance. See Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim.

App. 2012) (Alcala, J., concurring).      We view, as does the trial court, the

evidence relied on by the defendant to raise the defense in the light most

favorable to the defendant.     See Bufkin, 207 S.W.3d at 782; Johnson, 271

S.W.3d at 366, 367. If each element of a justification defense is raised by some

evidence, the defendant is entitled to an instruction to the jury on that defense,

regardless of whether the evidence supporting the defense is strong, weak,

feeble, impeached, or contradicted, and even if the trial court is of the opinion

that the testimony raising the defense is not credible. Shaw, 243 S.W.3d at 657–

58 (citing Tex. Penal Code Ann. § 2.03 (West 2011)); see Walters v. State, 247

S.W.3d 204, 209 (Tex. Crim. App. 2007).




                                         14
                                   Necessity

      Section 9.22 of the Texas Penal Code provides that a defendant’s conduct

is justified if he reasonably believes his conduct is immediately necessary to

avoid imminent harm.      Tex. Penal Code Ann. 9.22(1) (West 2011).     For the

reasons set out below, we hold the trial court correctly ruled Appellant did not

meet the first element.

      A defendant must have more than a generalized fear of harm to raise the

defense of necessity; the harm must be “imminent,” that is, the harm must be

“immediate, something that is going to happen now.”      Stefanoff v. State, 78

S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref’d).       Moreover, the mere

possibility of harm does not suffice to support a necessity defense. See Boushey

v. State, 804 S.W.2d 148, 151 (Tex. App.—Corpus Christi 1990, pet. ref’d), cert.

denied, 502 U.S. 912 (1991). In most cases, whether a defendant was prompted

to act by a reasonable belief will be a question for the trier of fact, but a

defendant’s belief that his conduct was immediately necessary to avoid imminent

harm may be deemed unreasonable as a matter of law if the undisputed facts

show a complete absence of evidence of immediate necessity or imminent harm.

See Graham v. State, 566 S.W.2d 941, 952 n.3 (Tex. Crim. App. 1978); Scroggs

v. State, 396 S.W.3d 1, 13 (Tex. App.—Amarillo 2010, pet. dism’d, untimely

filed); Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.—Texarkana 2000, no

pet.); Wilson v. State, 777 S.W.2d 823, 825 (Tex. App.—Austin 1989), aff’d, 853

S.W.2d 547 (Tex. Crim. App. 1993).


                                      15
      There was no evidence Appellant knew where the children were. Indeed,

it was undisputed that he did not know where they were. That was the problem

for which Appellant was seeking an answer. At best there was some evidence

Appellant suspected someone was in the house. But there was no evidence the

children were there or, more importantly, that they were in any danger anywhere.

Appellant had left the children with Kyli, and Appellant’s actions showed he

thought Erin’s side of the family had the children and were concealing them from

him, but there was no evidence Erin or any other family member posed any type

of physical threat to the children. Fears he expressed at trial that he had thought

at the time he entered the house that the children might be drowned in a bathtub

or on their way to Brazil or Egypt had no basis in any prior threats or conduct by

Erin or her family. A generalized and unsubstantiated fear is not “reasonable” as

a matter of law. See Roy v. State, 552 S.W.2d 827, 831 (Tex. Crim. App. 1977)

(holding generalized fear of being robbed in high crime neighborhood did not

entitle defendant, charged with unlawful possession of a firearm, to defense of

necessity), overruled on other grounds, Johnson v. State, 650 S.W.2d 414, 416

(Tex. Crim. App. 1983) (holding defense of necessity not unavailable as a matter

of law when prosecuted for unlawfully carrying a weapon on licensed premises),

overruled on other grounds, Boget v. State, 74 S.W.3d 23, 31 (Tex. Crim. App.

2002) (holding self-defense not limited to when defendant charged with offense

involving force against another); Cyr v. State, 887 S.W.2d 203, 206–07 (Tex.

App.—Dallas 1994, no pet.) (concluding protester not entitled to necessity


                                        16
instruction on basis he was acting to prevent illegal third trimester abortions

where evidence showed only that there could have been late-term abortions

being performed; no evidence of reasonable belief of imminent harm); Thomas v.

State, 855 S.W.2d 212, 214 (Tex. App.—Corpus Christi 1993, no pet.) (same).

We hold the trial court did not err by refusing an instruction regarding necessity.

                                   Self-Defense

      Appellant contends that Noah assaulted him inside Erin’s garage and that

Appellant simply defended himself. Section 9.31(a) of the Texas Penal Code

provides that “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.”

Tex. Penal Code Ann. § 9.31(a) (West 2011).

      The State responds that Appellant cannot rely on self-defense because

self-defense requires the use of “unlawful” force. The State maintains Noah’s

use of force was lawful because he was trying to protect a third person and to

protect a third person’s property. Noah was at Erin’s house at her request to

protect her or her property from an intruder; consequently, the State argues

Noah’s use of force, to the degree he reasonably believed force was immediately

necessary, was lawful. See Tex. Penal Code Ann. §§ 9.31(a) (self-defense);

9.33 (defense of third person); 9.41(a) (protection of one’s own property);

9.43(2)(A) (protection of third person’s property) (West 2011).          The State




                                         17
contends Appellant did not put on any evidence that Noah’s use of force was

unlawful.

      We disagree with the State. The State is viewing the evidence in the light

most favorable to the State. Evidence offered in support of a defensive issue is

reviewed in the light most favorable to the defendant.       Trevino v. State, 60

S.W.3d 188, 193 (Tex. App.—Fort Worth 2001), aff’d, 100 S.W.3d 232 (Tex.

Crim. App. 2003).      The State fails to assess Appellant’s justification from

Appellant’s standpoint. Both a plea of justification based on necessity and a plea

of self-defense must be assessed from the defendant’s standpoint.          Trotty v.

State, 787 S.W.2d 629, 630 (Tex. App.—Fort Worth 1990, pet. ref’d).             The

question is what the actor reasonably believed. Tex. Penal Code Ann. § 9.31(a).

      Appellant knew Erin was behind the disappearance of his children. But

other than Kyli’s text advising him of that fact, neither Erin nor any of her family

members were responding to Appellant’s calls or texts. Appellant had spent the

entire day trying to locate his children without success. When Noah entered the

garage and, according to Appellant, attacked him, Appellant said he defended

himself.    Although Appellant acknowledged Erin had a greater right of

possession, Appellant’s fight was with Noah, not Erin. There was no evidence

Appellant knew why Noah was there, as he was not privy to Erin’s calls to Noah

that evening either about her fears based on Appellant’s calls and texts during

the day or her call to Noah requesting Noah to “come quick” when she heard

noises downstairs after returning home. Nor is there any evidence that Noah


                                        18
ever advised Appellant that he had been called by Erin to come defend her or

that he was authorized by her to be there, much less to remove Appellant from

the premises. Moreover, in Appellant’s mind, he was still the legal owner on the

mortgage, and the fact that Erin had taken his children gave him the right to enter

the property. Noah acknowledged that when he confronted Appellant, Appellant

asserted Appellant had the right to be there but Noah did not. The evidence was

that in Appellant’s mind, as between Appellant and Noah, Noah was the

trespasser.    In Appellant’s mind, he was not in an indefensible position of

committing an offense and being lawfully stopped by someone else. To the

contrary, in his mind Erin and her family were in the indefensible position of

having unlawfully kidnapped his children, Appellant was trying to get his children

back, and Noah, Erin’s brother, attacked him during his efforts to recover the

children.   See Bennett v. State, 726 S.W.2d 32, 38 (Tex. Crim. App. 1986)

(stating jury first had to determine if deceased was justified in using deadly force

against the appellant in defense of third party as viewed from deceased’s

standpoint and, second, whether the appellant, viewed strictly from the

appellant’s standpoint, reasonably believed the deceased was acting lawfully;

further stating that if jury found that the appellant in fact did reasonably believe

the deceased was justified, the appellant would have had no right to self-

defense).     The fact question for the jury was whether, when viewing the

circumstances strictly from Appellant’s standpoint, Appellant reasonably believed

Noah was acting unlawfully.       If the jury decided Appellant in fact did not


                                        19
reasonably believe Noah’s use of force was unlawful, Appellant would lose his

right to self-defense. See id.

      Additionally, the amount of force used has limits. Boget, 74 S.W.3d at 30.

“[I]t has often been declared that in instances where force may be lawfully

exercised it amounts to an assault and battery when the force used becomes

excessive.” Mickle v. State, 88 Tex. Crim. 405, 410, 227 S.W. 491, 494 (1921).

      One version of the initial encounter between Appellant and Noah

suggested Noah’s initial force might have been excessive and, therefore,

potentially unlawful. Once again, a fact question for the jury was whether, when

viewed strictly from Appellant’s standpoint, Appellant reasonably believed Noah’s

use of force was excessive and, therefore, unlawful. See Bennett, 726 S.W.2d at

38. Appellant testified at trial that Noah approached him quickly, grabbed him,

slammed him against Erin’s car, and jammed his forearm against his throat. If

Noah’s use of force, as described by Appellant at trial, was excessive, then it

would have been unlawful, and Appellant would have been entitled to a self-

defense instruction.   Viewing the evidence in the light most favorable to the

defendant, we cannot say as a matter of law that the amount of force Appellant

described was not excessive. See Trevino, 60 S.W.3d at 193 (“An accused is

entitled to an instruction on every defensive issue raised by the evidence whether

that evidence is strong, weak, contradicted, unimpeached, or unbelievable.”).

      The State also argued that a defendant may not commit a crime and then

use the victim’s response to claim self-defense, citing Westley v. State, 754


                                       20
S.W.2d 224, 230 (Tex. Crim. App. 1988), cert. denied, 492 U.S. 911 (1989);

Davis v. State, 597 S.W.2d 358, 360 (Tex. Crim. App.), cert. denied, 449 U.S.

976 (1980); Cline v. State, 150 Tex. Crim. 586, 592, 204 S.W.2d 512, 516–17

(1947); Williams v. State, 120 Tex. Crim. 484, 486–87, 48 S.W.2d 304, 305

(1932); Yarborough v. State, 66 Tex. Crim. 311, 312, 147 S.W. 272, 272 (1912);

and Hernandez v. State, 969 S.W.2d 440, 445 (Tex. App.—San Antonio 1998,

pet. ref’d). The State maintains Appellant admitted committing the offense of

trespass. See Tex. Penal Code Ann. § 30.05(a) (West Supp. 2014).

      We are not persuaded that by committing a trespass, Appellant

categorically forfeited all rights to self-defense. Westley, Davis, and Hernandez

involved robberies where the case law expressly states that a robber has no right

of self-defense against his victim.    Westley, 754 S.W.2d at 230; Davis, 597

S.W.2d at 360; Hernandez, 969 S.W.2d at 442, 445.              Appellant was not

committing a robbery. Those cases are not controlling.

      Cline and Williams both involved burglaries, but they also involved a

burglary statute that expressly stated homicide was justifiable in “cases of

burglary and theft by night.” Cline, 204 S.W.2d at 516–17 (“In cases of burglary

and theft by night, the homicide is justifiable at any time while the offender is in

the building or at the place where the theft is committed, or is within reach of

gunshot from such place or building.”); Williams, 48 S.W.2d at 305 (quoting the

same statute as the one in Cline, the court wrote: “The issue of self-defense was

not raised.   Deceased had the legal right to kill appellant to prevent the


                                        21
burglary.”). The use of deadly force in self-defense or in defense of property is

now governed by sections 9.32 and 9.42 of the Texas Penal Code. See Tex.

Penal Code Ann. §§ 9.32, 9.42 (West 2011). Homicide is no longer justifiable “at

any time.”

      The State asserts Yarborough involved a trespass. Although a trespass

was involved in Yarborough, the offense for which the defendant was convicted

was aggravated assault. Yarborough, 147 S.W. at 272. In Yarborough, the

landlord entered his tenant’s property, loaded the tenant’s cotton on the

landlord’s wagons, and, while attempting to leave, was confronted by the tenant’s

wife and daughter, who attempted to prevent the landlord from leaving. The

landlord argued he was entitled to a self-defense instruction because the tenant’s

daughter tried to strike him with a scale beam. Id. The court wrote:


      The state’s evidence amply supports the verdict, and appellant could
      not claim to have been acting in self-defense, as he was wrongfully
      on the premises, and was engaged in an illegal act–taking another’s
      property without warrant of law–and if [the tenant’s wife] and [his]
      daughter had used force to prevent them from taking the property,
      and used no more force than was necessary, they would have been
      justifiable in the law. Consequently the court, under the evidence,
      did not err in refusing to submit the issue of self-defense.


Id. Even Yarborough does not give a complainant the right to use more force

than was necessary. We cannot agree with the State that as a matter of law

Noah’s use of force, when judged from Appellant’s standpoint, was lawful. See

Bennett, 726 S.W.2d at 37 (stating that the reasonableness of an accused’s



                                       22
belief that unlawful deadly force is being exerted against him must be judged

from the standpoint of the accused at the instant the accused responds to the

attack).

      The State also appears to argue that even if Noah’s use of force was

unlawful, Appellant provoked Noah’s use of unlawful force by trespassing on

Erin’s property and then refusing to leave.       See Tex. Penal Code Ann. §

9.31(b)(4). A charge on provocation is required when there is sufficient evidence

that (1) the defendant did some act or used some words which provoked the

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

attack, and (3) 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 on the other.

Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998). All the elements

are questions of fact, although provocation may be established as a matter of

law. Id. (citing Dyson v. State, 672 S.W.2d 460, 463–64 (Tex. Crim. App. 1984)

(appellant testified he wanted a fight); Smith v. State, 156 Tex. Crim. 253, 254–

58, 240 S.W.2d 783, 784–86 (1951) (defendant killed deceased while attempting

to recover money lost in a crap game)). We cannot say as a matter of law that

Appellant remained in the garage as a pretext to injure Noah. See Bennett, 726

S.W.2d at 35–36.

      Error properly preserved by an objection to the jury charge requires

reversal “as long as the error is not harmless.” Almanza v. State, 686 S.W.2d

157, 171 (Tex Crim. App. 1984) (op. on reh’g). The presence of “any harm,


                                        23
regardless of degree,” is sufficient to require reversal.     Arline v. State, 721

S.W.2d 348, 351 (Tex. Crim. App. 1986). For the reasons set out below, we hold

that Appellant suffered some harm.

        The State could have proven its case in one of three ways. First, the State

could have proved its case by showing Appellant entered Erin’s house with the

intent to commit an assault. Second, the State could also have proven its case

by showing Appellant entered the house and then committed an assault by

verbally threatening to kill Erin.   A person commits an assault if the person

intentionally or knowingly threatens another with imminent bodily injury. Tex.

Penal Code Ann. § 22.01(a)(2) (West Supp. 2014). Finally, the State could have

proven its case by showing Appellant entered the house and thereafter assaulted

Noah.

        During opening arguments, the State did not mention any verbal threats

against Erin.    Instead, the State argued the evidence would show Appellant

assaulted Noah inside the garage. During final arguments, the State relied upon

the alleged verbal threats both as a means to determine Appellant’s intent when

entering Erin’s home and as an assault once Appellant was inside the home. At

the same time, the State relied upon Appellant’s assaulting Noah.         The first

prosecutor said,

        And you all 12 don’t have to agree on which way assault was
        committed.    If 6 of you think that he committed assault by
        threatening imminent bodily injury and if the other 6 of you agree
        that he committed assault by causing bodily injury, then you all 12



                                         24
      agree that he committed an assault. You don’t all have to agree on
      how he did it; you just all have to agree that he did it.

The second prosecutor underscored the first prosecutor’s argument, “I don’t have

to prove which victim was going to be assaulted. It can be anyone, one of them.

You don’t have to agree which one.”

      Because Appellant admitted striking Noah, without the self-defense

instruction, Appellant admitted the offense. The error was harmful as to the third

basis. See Johnson, 271 S.W.3d at 368 (“Because appellant admitted that she

intentionally stabbed T.L.B. to stop him from jumping on her or hitting her, and

the jury was not instructed to consider appellant’s statutory defensive theory that

was sufficiently raised by the evidence, the jury had no choice but to convict

appellant of murder.”) The error, however, would be harmless as to the first two

bases, as self-defense played no role in either of those. Unfortunately, we are

not able to tell which of the three theories the jury relied on. We are able to

conclude, however, that if even one juror relied on the third basis involving Noah,

Appellant was harmed. “[A]ny harm, regardless of degree,” is sufficient to require

reversal. See Arline, 721 S.W.2d at 351. “Unless all harm was abated, appellant

suffered ‘some’ harm.” Miller v. State, 815 S.W.2d 582, 586 n.5 (Tex. Crim. App.

1991). We, therefore, hold Appellant suffered some harm by the failure to submit

the self-defense instruction. We overrule Appellant’s first issue with respect to

the defense of necessity, but we sustain it with respect to the justification issue of

self-defense.



                                         25
                                 Conclusion

      Having sustained Appellant’s first issue in part, we need not address his

other four issues.   See Tex. R. App. P. 47.1.    We reverse the trial court’s

judgment and remand the cause for a new trial.



                                                 /s/ Anne Gardner
                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

LIVINGSTON, C.J. and GABRIEL, J. concur without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 2, 2015




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