                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00158-CR


CHRISTOPHER TYRONE                                                   APPELLANT
JOHNSON

                                        V.

THE STATE OF TEXAS                                                         STATE


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         FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2006-1436-A
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                                   OPINION

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                                  Introduction

      Appellant Christopher Tyrone Johnson was tried for murder and convicted

of the lesser-included offense of manslaughter.          The jury assessed his

punishment at five years’ confinement, and the trial court sentenced him

accordingly. In two issues, Appellant contends that the evidence is insufficient to
sustain the verdict and that the trial court erred in its charge to the jury. We

overrule Appellant’s first issue, sustain his second, reverse and remand.

                                         Facts

      Appellant and the decedent, Lemontrez Dewan Lewis (Dewan), grew up

together and considered each other best friends.         Dewan’s cousin, Ahmad

Rashad Lewis (Rashad), is Appellant’s half-brother.       In 2005, Appellant was

diagnosed with multiple sclerosis (MS). The disease progressed very quickly.

Appellant had been very athletic and had played football in high school. By

2006, his condition had deteriorated to the point that he was using either

crutches with an arm brace or a walker and would require assistance from his

girlfriend Linda White and her daughter. He testified,

      [T]he way I would get up the stairs is at the time I had what is called
      a walker, and I would go up one step, Linda White would pick up one
      leg and move it up, and I would hold onto the bars. I would hold
      onto the side railings, and she and her daughter would move my
      legs up the step one at a time. The daughter would have one foot,
      and she would have one foot. She was my legs for me, it would be
      the[m] moving me forward.


      When asked whether he had use of his arms at that time, Appellant

testified, “Yes, I had very limited use, but I did.”

      On February 18, 2006, Appellant was living with Linda on the third floor of

a North Dallas apartment. Dewan, who was working as a long-haul truck driver

at the time, was coming through Dallas on a trip and wanted to stop by and see

Appellant and Rashad. Appellant, Linda, Dewan, and Rashad visited together at



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the apartment. Their conversation was cordial for some time, but things began to

change when Linda, and later Rashad and Dewan, started ridiculing Appellant

and his disease by calling him names. Appellant took offense and asked Dewan

to leave, who then replied, “Man, you can’t make me go nowhere. You can’t

make me leave.” Appellant put his hand on the table and told Dewan he could

make him leave.

      The argument escalated to the point at which Dewan threatened Appellant.

Appellant testified that while they were still sitting at the table, Dewan grabbed

Appellant’s shirt collar, and Appellant jerked Dewan’s hand away to free himself,

got up, and walked into the kitchen, while asking Dewan to leave at least three

times. Dewan stood up, kicked the wall, and then headed into the kitchen after

Appellant.

      When Appellant got to the kitchen, he grabbed a knife. Dewan followed

and Appellant stabbed him in the chest. Dewan asked Rashad to take him to the

hospital and then collapsed. Paramedics arrived and Dewan died on the way to

the hospital. When police arrived at the apartment, Appellant confessed that he

had stabbed Dewan, and Appellant was later charged with murder.

                    Evidence of Recklessness is Sufficient

      In his first issue, Appellant argues that the evidence is insufficient to show

he acted recklessly in stabbing Dewan. Section 19.04 of the Texas Penal Code

provides that a person commits manslaughter if he recklessly causes the death




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of an individual. Tex. Penal Code Ann. § 19.04 (West 2011).            Recklessly is

defined as follows:

             A person acts recklessly, or is reckless, with respect to
      circumstances surrounding his conduct or the result of his conduct
      when he is aware of but consciously disregards a substantial and
      unjustifiable risk that the circumstances exist or the result will occur.
      The risk must be of such a nature and degree that its disregard
      constitutes a gross deviation from the standard of care that an
      ordinary person would exercise under all the circumstances as
      viewed from the actor’s standpoint.

Id. § 6.03(c) (West 2011).

      Appellant argues that it was unreasonable for the jury to infer that

Appellant had acted recklessly because no evidence was presented to support

an inference that Appellant foresaw the risk and then made a conscious decision

to ignore it. Appellant argues that, rather than he, it was Dewan who, seeing the

knife and recognizing the inherent danger, disregarded that danger and lunged

toward him for the knife.

      Appellant’s half-brother Rashad described the stabbing:

            By that time, Dewan had walked up on the counter, and they
      was still talking.

            I don’t – my brother picked up the knife, and he didn’t lunge at
      Dewan. He – it was a simultaneous – it was – when my brother
      picked up the knife, he was holding it like so, and when he was
      holding it, he was talking to Dewan, and Dewan was talking, like,
      what you going to do with the knife?

            ....

           Dewan reached for the knife and simultaneous, when he
      reached for the knife, my brother extended his arm and it happened.



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      Appellant argues that his picking up the knife did create a risk but that it

was not “substantial” nor was it “unjustifiable.”        He argues that when a

reasonable person who does not have the physical ability to run away is pursued

by an enraged person who is substantially bigger than he and that reasonable

person cannot physically leave, the person does what he can to defend himself.

Appellant’s picking up a knife, he argues, was not a “substantial and unjustifiable”

risk for purposes of finding Appellant guilty of acting recklessly, and

consequently, the evidence is insufficient to support the conviction.           Nor,

Appellant argues, could he have consciously disregarded the risk because the

act of picking up the knife was in self-defense, to protect himself in a situation

with an enraged man who was much bigger and in better physical condition than

Appellant.

      The State argues that Appellant asks us to view the evidence in a light

most favorable toward Appellant, rather than employing the appropriate standard

of appellate review which is to review the evidence in the light most favorable to

the verdict. The State argues that instead of showing how the evidence of

recklessness is insufficient, Appellant merely restates his claims of self-defense.

The State points out that the jury had already rejected Appellant’s claim of self-

defense.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to



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determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012). This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393

S.W.3d at 768; Wise, 364 S.W.3d at 903. Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Isassi v. State,

330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Instead, we determine whether the

necessary inferences are reasonable based upon the cumulative force of the

evidence when viewed in the light most favorable to the verdict.        Sorrells v.

State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011). We must presume that the

factfinder resolved any conflicting inferences in favor of the verdict and defer to

that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Wise, 364 S.W.3d at

903. The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Isassi, 330 S.W.3d at 638; Hooper v. State, 214 S.W.3d 9,


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13 (Tex. Crim. App. 2007). In reviewing the sufficiency of the evidence, “the

appellate court must look at all the evidence, whether properly or improperly

admitted.” Miles v. State, 918 S.W.2d         511, 512 (Tex. Crim. App. 1996),

cert.denied, 511 U.S. 1100 (1994) (quoting Alexander v. State, 866 S.W.2d 1, 3

(Tex. Crim. App. 1993)).

      As we have previously explained, circumstantial evidence is generally

needed to prove a culpable mental state, and because the culpable mental state

generally must be inferred from the circumstances surrounding the offense, the

trier of fact may infer the defendant’s culpable mental state from relevant

evidence tending to prove its existence. Davis v. State, 955 S.W.2d 340, 349

(Tex. App.––Fort Worth 1997, pet. ref’d) (citing Hernandez v. State, 819 S.W.2d

806, 810 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 974 (1992)); see Dillon v.

State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978).

      The culpable mental state of “reckless” is satisfied by evidence indicating

that the defendant consciously disregarded a known, substantial, and

unjustifiable risk that serious bodily injury would occur––a risk that if disregarded

constitutes a gross deviation from the standard of care an ordinary person would

exercise under the same circumstances. Davis, 955 S.W.2d at 348–49; see

Hayes v. State, 728 S.W.2d 804, 809 (Tex. Crim. App. 1987) (op. on reh’g).

Reckless conduct “involves conscious risk creation, that is, [that] the actor is

aware of the risk surrounding his conduct or the results thereof, but consciously




                                         7
disregards that risk.”   Davis, 955 S.W.2d at 349 (quoting Aliff v. State, 627

S.W.2d 166, 171 (Tex. Crim. App. 1982)).

      Appellant admitted that he was upset and angry about the names he was

being called that evening and felt that Dewan, Rashad, and White were ganging

up on him. Appellant picked up a kitchen knife and pointed it toward Dewan. His

expressed intent was to protect himself. The jury reasonably could have inferred

from the circumstances that Appellant chose a sharp knife or was aware that the

knife he had chosen was sharp enough to pierce Dewan’s flesh.               Appellant

repeatedly denied that he had intended to kill Dewan.          The jury could have

believed he pointed the sharp knife toward Dewan but with no intent to kill him.

      The island and the kitchen sink were between Appellant and Dewan when

the stabbing occurred. Although Appellant suggested Dewan walked into the

knife, he later admitted he had moved toward Dewan “a tad bit” with the knife.

As Appellant moved toward Dewan “a tad bit” with the knife, his work ID badge

fell into the sink, indicating to a greater or lesser extent that Appellant had lunged

over the sink with the knife to stab Dewan. The autopsy revealed that the knife

penetrated Dewan’s clothing, skin, his muscle, fat, and then through the fifth rib,

which, as Dr. Barnard testified, is a hard object.       The knife cut directly into

Dewan’s heart. The jury reasonably could have concluded that Dewan’s injuries

were inconsistent with his having walked into the knife. Additionally, the jury

reasonably could have concluded that Appellant was aware of the inherent

danger of moving toward Dewan with a sharp knife pointed toward Dewan while


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Dewan was moving toward Appellant when both men were angry and very

emotional. And based on the record as a whole, the jury would be warranted in

concluding that Appellant was aware he risked causing serious injury to Dewan

and consciously disregarded that risk and that his actions constituted a gross

deviation from the standard of care that an ordinary person would exercise under

all the circumstances as viewed from Appellant’s standpoint.

      We hold that the evidence is sufficient to support the jury’s verdict and we

therefore overrule Appellant’s first issue.

                Properly Objected-to Charge Error was Harmful

      Although Appellant frames his second issue as inaccurately instructing the

jury on the law relating to the lesser-included offense of manslaughter, the

substance of his entire argument refers to the improper self-defense instruction,

as does the State’s response.        We shall, therefore, consider his argument

regarding alleged error in the self-defense instruction.

      An appellate court must first decide whether there is error in the jury

charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Posey v.

State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998). If error exists and Appellant

objected to the error at trial, we must determine whether the error caused “some

harm,” requiring reversal. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim.

App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g).




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      The second and third pages of the charge instructed the jury on self-

defense as follows:

            Now, if you find from the evidence beyond a reasonable doubt that
      on the occasion in question the defendant did stab the complainant,
      Lemontrez Lewis but you further find from the evidence that viewed from
      the standpoint of the defendant at the time, from the words or conduct, or
      both, of Lemontrez Lewis it reasonably appeared to the defendant that his
      person was in danger of bodily injury and there was created in his mind a
      reasonable expectation of fear of bodily injury from the use of unlawful
      force at the hands of Lemontrez Lewis and that acting under such
      apprehension and reasonably believing that the use of force on his part
      was immediately necessary to protect himself against Lemontrez Lewis’s
      use or attempted use of unlawful force, the defendant stabbed Lemontrez
      Lewis with a knife to defend himself, then you will acquit the defendant and
      say by your verdict not guilty.


      Section 2.03(d) of the penal code provides, “If the issue of the existence of

a defense is submitted to the jury, the court shall charge that a reasonable doubt

on the issue requires that the defendant be acquitted.” Tex. Penal Code Ann.

§ 2.03(d) (West 2011). Self-defense is a defense. Id. § 9.31. The law is well

established that “[t]he jury must be instructed to acquit the defendant if they

believe that he was acting in self-defense or have a reasonable doubt thereof.”

Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998) (noting that court

of appeals “properly concluded that the failure to apply the law of self-defense to

the facts of the case and to instruct the jury to acquit if they held a reasonable

doubt on self-defense was error”); Russell v. State, 834 S.W.2d 79, 82 (Tex.

App.––Dallas 1992, pet. ref’d). We hold that the trial court erred by submitting a




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charge that failed to instruct the jury on self-defense as required by section

2.03(d).

      We also hold that Appellant preserved error. Our review of the record

shows that the proposed charge originally contained the phrase “or you have a

reasonable doubt thereof” such that had the proposed charge been issued, the

section quoted above would have read as follows,

            Now, if you find from the evidence beyond a reasonable doubt that
      on the occasion in question the defendant did stab the complainant,
      Lemontrez Lewis but you further find from the evidence that viewed from
      the standpoint of the defendant at the time, or you have a reasonable
      doubt thereof, from the words or conduct, or both, of Lemontrez Lewis it
      reasonably appeared to the defendant that his person was in danger of
      bodily injury [ . . . ] then you will acquit the defendant and say by your
      verdict not guilty. [Emphasis added]


      The State, however, objected to the phrase that we have italicized above,

and the trial court, over Appellant’s objection, struck it from the charge.

      The record also indicates that the proposed charge originally contained the

following passage, which the trial court also struck on the State’s objection, and

over the objection of Appellant: “If you have a reasonable doubt as to whether or

not the defendant was acting in self-defense on said occasion and under said

circumstances, then you should give the defendant the benefit of that doubt.”

      Because Appellant timely objected to error in the jury charge, we must

reverse the trial court’s judgment if the error in the charge was calculated to

injure Appellant’s rights. Almanza, 686 S.W.2d at 171. We examine the entire

record to determine whether Appellant suffered some harm as a result of this


                                         11
error. Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986). The actual

degree of harm must be assessed in light of (1) the entire jury charge; (2) the

state of the evidence, including the contested issues and weight of probative

evidence; (3) the argument of counsel; and (4) any other information revealed by

the record as a whole. Almanza, 686 S.W.2d at 171.

      Appellant testified that he had told Dewan to leave more than once, and

Dewan kicked the wall and came toward the kitchen where Appellant had gone

on his walker. Appellant also testified that Dewan was so angry that his eyes

were red and that he was coming toward him. Appellant further testified that he

went into the kitchen and that he knew he had to get Dewan to leave. Appellant

grabbed the knife to protect himself because Dewan was coming toward him and

because Appellant did not know what was going on in Dewan’s mind. Appellant

described the scene as Dewan’s walking into the knife. Appellant testified, “I

didn’t intend to kill my cousin. . . . I was trying to defend myself, trying to protect

myself.”

      But Appellant also testified that he had to do something because everyone

was laughing at him because he could not walk and sometimes fell down.

Dewan said that Appellant was “fat” and “acted like a handicapped little bitch.”

Appellant’s walker had a handbrake, and Dewan was asking him how he was

going to walk if they hit the brakes, saying, “You going to fall to the floor.” Dewan

grabbed for Appellant’s shirt, and Appellant knew he had to get Dewan to leave.

Dewan said, “Look here, it’s not like when we were kids, I’m a man, I done grew


                                          12
up, I got bigger than you was. I got bigger than you are.” When Appellant tried

to distance himself from Dewan while he told him to leave and Dewan said

Appellant could not make him, Dewan followed Appellant to the kitchen.

Appellant testified, “He was steadily cussing at me and coming toward me, [and] I

didn’t know what he was going to do. I didn’t know what he was going to try to

do.”

       Although there was sufficient evidence to raise the issue of self-defense,

neither the arguments of counsel nor the court’s charge instructed the jury that it

must acquit Appellant if it had a reasonable doubt on the issue of self-defense.

The jury rejected the charge of murder but convicted Appellant of manslaughter.

After reviewing the entire record, we cannot conclude that Appellant did not

suffer some harm as a result of the trial court’s error. Accordingly, we sustain

Appellant’s second issue.




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                                   Conclusion

      Having overruled Appellant’s first issue and sustained his second issue,

we reverse the trial court’s judgment and remand to the trial court for a new trial

consistent with this opinion.



                                                    /s/ Anne Gardner
                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

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

DELIVERED: July 24, 2014




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