             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. PD–0899–18



                              PATRICK JORDAN, Appellant

                                               v.

                                 THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SIXTH COURT OF APPEALS
                           BOWIE COUNTY

             K EEL, J., delivered the opinion of the Court in which H ERVEY,
R ICHARDSON, N EWELL, W ALKER, and S LAUGHTER, JJ., joined. K EASLER, J., filed a
dissenting opinion. Y EARY, J., filed a dissenting opinion in which K ELLER, P.J.,
joined.

                                        OPINION

       A jury convicted Appellant of deadly conduct and sentenced him to four years in

prison. He claims the trial court erred in denying him a jury instruction on self-defense

against multiple assailants. The court of appeals concluded that Appellant was not

entitled to a self-defense instruction at all, and the failure to include multiple assailants

language was not error. Jordan v. State, 558 S.W.3d 173, 181 (Tex. App.—Texarkana
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2018). We disagree and hold that Appellant was entitled to a jury instruction on multiple

assailants, and the failure to include it was harmful. We remand the case to the trial court

for further proceedings.

                                      I. Self-Defense

A. Definition

       A person is justified in using force against another when and to the degree he

reasonably believes the force is immediately necessary to protect against the other’s use

or attempted use of unlawful force. T EX. P ENAL C ODE § 9.31(a). A person is justified in

using deadly force against another if he would be justified in using force, and he

reasonably believes deadly force is immediately necessary to protect himself against the

other’s use or attempted use of unlawful deadly force. T EX. P ENAL C ODE § 9.32(a). The

evidence does not have to show that the victim was actually using or attempting to use

unlawful deadly force because a person has the right to defend himself from apparent

danger as he reasonably apprehends it. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim.

App. 1996).

       Self-defense is a confession-and-avoidance defense requiring the defendant to

admit to his otherwise illegal conduct. Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim.

App. 2010). He cannot both invoke self-defense and flatly deny the charged conduct. Id.

at 406 (confession-and-avoidance requirements satisfied despite Juarez’s inconsistent

testimony alternatively admitting to the conduct and claiming it was an accident).
                                                                                Jordan–Page 3

B. Raising Self-Defense Against Multiple Assailants

       Regardless of the strength or credibility of the evidence, a defendant is entitled to

an instruction on any defensive issue that is raised by the evidence. Hamel, 916 S.W.2d

at 493. A defensive issue is raised by the evidence if there is sufficient evidence to

support a rational jury finding as to each element of the defense. Shaw v. State, 243

S.W.3d 647, 657–58 (Tex. Crim. App. 2007). We view the evidence in the light most

favorable to the defendant’s requested defensive instruction. Gamino v. State, 537

S.W.3d 507, 510 (Tex. Crim. App. 2017) (citing Bufkin v. State, 207 S.W.3d 779, 782

(Tex. Crim. App. 2006)). A trial court errs to refuse a self-defense instruction if there is

some evidence, viewed in the light most favorable to the defendant, that will support its

elements. Gamino, 537 S.W.3d at 510.

       When the evidence viewed from the defendant’s standpoint shows an attack or

threatened attack by more than one assailant, the defendant is entitled to a multiple

assailants instruction. Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985). The

issue may be raised even as to those who are not themselves aggressors as long as they

seem to be in any way encouraging, aiding, or advising the aggressor. Black v. State, 145

S.W. 944, 947 (Tex. Crim. App. 1912); see also Petty v. State, 70 S.W.2d 718, 719 (Tex.

Crim. App. 1934) (evidence viewed from defendant’s standpoint showed danger of attack

or threatened attack by more than one assailant, and the jury should have been instructed

that he had the right to defend against either or all of them); Cartwright v. State, 16 Tex.
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Ct. App. 473, 487–88 (1884) (error for the jury charge to restrict self-defense to the

victim when evidence showed that two others appeared to be acting with the victim).

       In Sanders v. State, 632 S.W.2d 346 (Tex. Crim. App. 1982), Sanders was hit in

the head with a pool cue and chased into the parking lot by several men who were yelling

racial epithets at him. He fired three shots in their direction, killing one of them. Id. at

346. Sanders was entitled to a multiple assailants instruction even though the deceased

had not personally attacked him. Id. at 348. Thus, “multiple assailants” does not require

evidence that each person defended against was an aggressor in his own right; it requires

evidence that the defendant had a reasonable fear of serious bodily injury from a group of

people acting together.

C. Background

       Appellant had packed up his belongings to move from Texarkana to Broken Bow,

Oklahoma. On the way out of town, he and his friend, Cody Bryan, stopped at the Silver

Star restaurant where Appellant’s ex-girlfriend, Summer Varley, worked as a waitress.

He texted her to see if she was working that evening, and she answered that she was not.

She said she was in the bar drinking with some friends and suggested that Appellant buy

her a drink. Varley’s drinking companions were Jordan Royal, Austin Crumpton, Damon

Prichard, and Joshua Stevenson.

       When Appellant and Bryan arrived at Silver Star, Royal met them at the door,

squeezed Appellant’s hand “pretty intently,” and told Appellant not to speak to Varley.
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Royal was much larger than Appellant, and Appellant found him to be intimidating.

Appellant assured Royal they were just there to eat and were not planning to talk to

Varley. Since Varley and her friends were in the bar, Appellant and Bryan sat in the main

dining area. Nevertheless, Prichard approached their table “with a pretty aggressive

nature” and exchanged words with them. Bryan noticed that Prichard exhibited signs of

intoxication. Varley approached them, too, and called Appellant an “asshole.” After

these interactions, Appellant and Bryan thought “it would be a bad idea to stick around

too long” and decided to pay their tab and leave quickly rather than eat at Silver Star.

       When Appellant and Bryan exited the restaurant, they found Varley, Royal,

Prichard, Stevenson, and Crumpton congregated near the door. According to Varley,

Royal was intoxicated and upset at Appellant. She knew that Royal was going to try to

attack Appellant and, concerned for Appellant’s safety, Varley approached him and told

him he needed to leave. Crumpton testified that the group was “mouthing” at Appellant

and Bryan; Prichard testified that there was an “altercation, a bunch of talking mess, and

then it escalated.” According to Prichard, the group moved into the parking lot because

“it was heated at the moment.”

       As Appellant and Bryan tried to walk to their car, Royal punched Bryan, knocking

him out. Appellant saw Royal, Crumpton, and Prichard standing over Bryan and saw

Royal motion for Stevenson to go around the cars to chase Appellant down. Appellant

continued to retreat with Royal and Stevenson in pursuit of him. Crumpton and Varley
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also followed Royal into the parking lot. Varley testified that “everyone was going after

[Appellant]” and agreed that there were multiple assailants on Appellant and Bryan.

       Appellant said a hand reached around his face, “fish-hooked” his eye, and turned

him around. He realized it was Royal who was grabbing him and on top of him, and he

heard footsteps coming up from behind him. As Appellant and Royal were wrestling,

Appellant pulled a pistol out of his pocket, chambered a round, and fired three shots. He

testified that he did so because he feared for his and Bryan’s safety, they were being

mobbed by multiple assailants, and he had no other alternative because he had already

tried to retreat. One shot hit a parked car, one hit Royal in the leg, and one hit Varley in

the chest.

       Appellant went back into the restaurant, asked the staff to call 9-1-1, placed the

pistol on the counter in the kitchen, held his hands up, and waited for police to arrive. He

admitted to the officers that he had fired the gun.

       Appellant was charged with aggravated assault with a deadly weapon for shooting

Royal and deadly conduct for knowingly discharging a firearm in the direction of Varley

and Crumpton. T EX. P ENAL C ODE §§ 22.02, 22.05(b). The jury charge included self-

defense instructions for both offenses based on the conduct of Royal, but the trial judge

declined to include Appellant’s requested self-defense instruction related to the conduct

of Royal “or others with him.” The jury found Appellant guilty of deadly conduct but

hung on aggravated assault.
                                                                                 Jordan–Page 7

D. Self-Defense Against Multiple Assailants Was Raised

       In the light most favorable to the verdict, the evidence showed that five people

who were united in their hostile intent acted together to intimidate and chase Appellant

and Bryan. Right before firing the gun, Appellant heard Royal hit Bryan. When he

turned around, he saw Royal, Crumpton, and Prichard standing over an unconscious

Bryan, and saw Royal motion for Stevenson to chase Appellant as he was trying to flee.

Varley and Crumpton followed. Royal, who was bigger than Appellant, grabbed him by

the eye socket, and jumped on top of him. While he was wrestling with Royal, Appellant

heard approaching footsteps, and he fired because he felt he had no other choice. On this

evidence a rational jury could have found that Appellant reasonably believed that deadly

force was immediately necessary to protect himself from the group’s apparent or

attempted use of deadly force against himself and Bryan.

       It does not matter whether Crumpton or Varley individually used deadly force

against Appellant; it matters whether Appellant had a reasonable apprehension of actual

or apparent danger from a group of assailants that included Crumpton and Varley. “If

there is evidence of more assailants than one, the charge must inform the jury that the

accused can defend against either, and it is error to require the jury to believe or find that

there was more than one assailant attacking the accused.” Black, 145 S.W. at 947; see

also Dickey v. State, 22 S.W.3d 490, 493 (Tex. Crim. App. 1999) (Keller, J., concurring)

(“[W]hen . . . an attack is being conducted by multiple people as a group, a defendant is
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justified in using force against any member of the group, even if the recipient of that force

is not engaging in conduct that would, by itself, justify the use of force (or deadly force as

the case may be).”).

       The State Prosecuting Attorney as amicus curiae argues that Appellant did not

satisfy the confession-and-avoidance requirement for self-defense because he did not

admit to knowingly shooting in the direction of Crumpton and Varley. The State took a

different position at trial, maintaining that Appellant admitted to all of the elements of

deadly conduct on cross examination:

       State:          “That you did then and there knowingly discharge your
                       firearm?”
       Appellant:      “Yes, sir”
                                              ***
       State:          “You fired your weapon in the direction of one or more
                       individuals. Is that correct, sir?”
       Appellant:      “Yes, sir.”
       State:          “Those are all the elements that the State has to prove to
                       deadly conduct.”

       The State Prosecuting Attorney also argues that Section 9.31 requires evidence that

the victim was an assailant in his own right because self-defense is couched in terms of

using force against “another” and against “the other’s” use or attempted use of unlawful

force and because self-defense is based on reciprocity. But Section 9.31 encompasses

“others” because “another” is defined by the Penal Code, and Penal Code definitions

apply to grammatical variations of the defined terms. T EX. P ENAL C ODE § 1.07(a)(5)

(definition of “another”), (b) (grammatical variations apply to defined terms). And self-
                                                                                Jordan–Page 9

defense is based on reasonableness. T EX. P ENAL C ODE §§ 9.31(a), 9.32(a)(2).

       The State Prosecuting Attorney maintains that the trial court’s instructions gave

Appellant what he wanted: the right to defend against Varley and Crumpton because of

Royal’s actions. But the instructions focused exclusively on Royal’s actions whereas the

evidence viewed in the light most favorable to Appellant showed that he was facing a

mob. This “unduly limited the jury in passing upon appellant’s right of self-defense.”

See McCuin v. State, 505 S.W.2d 831, 832 (Tex. Crim. App. 1974).

       Since the evidence demonstrated that Appellant had a reasonable apprehension of

apparent danger from multiple assailants, he was entitled to the instruction.

                         II. Should We Reach the Harm Issue?

       The court of appeals did not address harm because it found no error. Ordinarily

we would not reach an issue that the court of appeals did not address; but if the resolution

of the issue is “clear” or “plain,” then judicial economy justifies this Court in reaching the

issue in the first instance. See Davison v. State, 405 S.W.3d 682, 691–92 (Tex. Crim.

App. 2013) (correct resolution of harm analysis was “clear,” so judicial economy justified

this Court in addressing it rather than remanding to the court of appeals); (Johnston v.

State, 145 S.W.3d 215, 224 (Tex. Crim. App. 2004) (“plainly harmless” error could be

reviewed in first instance by this Court). As discussed below, the harmfulness of the trial

court’s refusal to instruct on multiple assailants was clear. Furthermore, both parties

addressed harm in briefing before this Court. Thus, for the sake of judicial economy we
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address harm even though the court of appeals did not.

                        III. Jury Charge Error Harm Standard

       The standard of review for jury charge error depends on whether the error was

preserved. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If it was not,

then it is reversible only if it caused “egregious harm.” Id. If error was preserved, it is

reversible if it caused “some harm.” Id.

A. Was Error Preserved?

       The district attorney maintains that error was not preserved because Appellant’s

proposed written charge referenced multiple assailants with respect to defense of a third

person but not with respect to self-defense. But at the charge conference the prosecution

explained the defense request to the judge in terms of both self-defense and defense of a

third person, saying Appellant “wants this section regarding self-defense and defense of

others in there to include Jordan Royal or others. So his argument is that it needs to say

‘Jordan Royal or others.’” The trial court thus understood the defense request to apply to

both self-defense and defense of a third person, and error was preserved. See Francis v.

State, 36 S.W.3d 121, 123 (Tex. Crim. App. 2000) (charge error preserved if trial court

understood request). Consequently, we must review the error here for “some harm.”

Almanza, 686 S.W.2d at 171.

B. “Some Harm” Evaluation

       “Some harm” means actual harm and not merely a theoretical complaint. Cornet v.
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State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013); Sanchez v. State, 376 S.W.3d 767,

775 (Tex. Crim. App. 2012). Reversal is required if the error was calculated to injure the

rights of the defendant. Cornet, 417 S.W.3d at 449 (quoting Almanza, 686 S.W.2d at

171).

        To assess harm, we must evaluate the whole record, including the jury charge,

contested issues, weight of the probative evidence, arguments of counsel, and other

relevant information. See Cornet, 417 S.W.3d at 450; Almanza, 686 S.W.2d at 171. The

record in this case demonstrates some harm because the only contested issue was self-

defense, and the failure of the self-defense instructions to reference “Royal or others”

made rejection of the defense inevitable.

        The deadly conduct application paragraph instructed the jury to find Appellant

guilty if he knowingly shot in the direction of Varley and Crumpton, conduct that he

admitted at trial.1 But the self-defense application paragraph authorized an acquittal for

that conduct only if Appellant reasonably believed it was immediately necessary to shoot




        1
            The deadly conduct application paragraph read as follows:

                Now, if you find from the evidence beyond a reasonable doubt that on or
        about September 23, 2015, in Bowie County, Texas, the defendant, PATRICK
        JORDAN, did then and there, knowingly discharge a firearm at or in the direction
        of individuals, namely Summer Varley and Austin Crumpton, then you will find
        the defendant guilty of deadly conduct, as charged in the indictment.
                                                                                 Jordan–Page 12

Royal.2 Since a need to shoot at Royal alone would never justify also shooting at Varley

and Crumpton, the instruction mandated a rejection of self-defense. Similarly, the self-

defense reverse application paragraph specified that self-defense had to be rejected if

Appellant did not reasonably believe that shooting at Varley and Crumpton was

immediately necessary to protect himself against Royal.3 Since shooting at Varley and

Crumpton would never be necessary to defend against Royal alone, this instruction also


       2
           The self-defense application paragraph read as follows:

               Now, if you find from the evidence beyond a reasonable doubt that on the
       occasion in question the defendant, PATRICK JORDAN, did commit the offense
       of deadly conduct, as alleged in the indictment, but you further find from the
       evidence, as viewed from the standpoint of the defendant at the time that from the
       words or conduct, or both, of Jordan Royal it reasonably appeared to the
       defendant that his life or person was in danger and there was created in his mind a
       reasonable expectation or fear of death or serious bodily injury from the use of
       unlawful deadly force at the hands of Jordan Royal, and that acting under such
       apprehension and reasonably believing that the use of deadly force on his part was
       immediately necessary to protect himself against Jordan Royal’s use or attempted
       use of unlawful deadly force, he shot Jordan Royal with a gun, and that a
       reasonable person in the defendant’s situation would not have retreated, then you
       should acquit the defendant on the grounds of self-defense on said occasion and
       under the circumstances, then [sic] you should give the defendant the benefit of
       that doubt and say by your verdict of [sic] not guilty of Deadly Conduct.

       3
           The self-defense reverse application paragraph read as follows:

               If you find from the evidence beyond a reasonable doubt that at the time
       and place in question the defendant did not reasonably believe that he was in
       danger of death or serious bodily injury, or that a reasonable person in the
       defendant’s situation at the time and place in question would have retreated before
       using deadly force against Jordan Royal, or that the defendant, under the
       circumstances as viewed from his standpoint at the time, did not reasonably
       believe that the degree of force actually used by him was immediately necessary to
       protect himself against Jordan Royal’s use or attempted use of unlawful deadly
       force, then you should find against the defendant on the issue of self-defense.
                                                                               Jordan–Page 13

mandated a rejection of self-defense.

       By contrast, correct instructions would have authorized an acquittal if Appellant

reasonably believed that shooting in the direction of Varley and Crumpton had been

immediately necessary to protect himself against “Royal or others” and would have

required rejection of self-defense if Appellant did not reasonably believe that shooting at

Varley and Crumpton was immediately necessary to protect himself against deadly force

by “Royal or others.” The difference between the instructions that were given and those

that should have been given is the difference between foreclosing self-defense and

allowing fair consideration of it. That difference clearly demonstrates that Appellant was

harmed by the refusal to instruct on multiple assailants. Thus it is unnecessary to further

assess harm in relation to other charge errors such as: the failure to put the burden of

persuasion on the State with respect to self-defense, the failure to instruct on the

presumption of reasonableness with respect to a defendant’s belief that deadly force is

immediately necessary, and conditioning self-defense on the duty to retreat. T EX. P ENAL

C ODE §§ 2.03(d), 9.32 (b)–(d).

                                      III. Conclusion

       Appellant was entitled to a self-defense instruction that referenced “Royal or

others.” The failure to give it was calculated to injure Appellant’s rights. We reverse the

judgment of the court of appeals and remand the case to the trial court for further

proceedings consistent with this opinion.
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Delivered: February 5, 2020
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